11–9–10 Tuesday Vol. 75 No. 216 Nov. 9, 2010

Pages 68675–68940

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Contents Federal Register Vol. 75, No. 216

Tuesday, November 9, 2010

Agricultural Marketing Service Coast Guard RULES RULES Modification of the Aflatoxin Regulations: Drawbridge Operation Regulations: Pistachios Grown in California, Arizona, and New Hackensack River, Jersey City, NJ, 68704 Mexico, 68681–68682 PROPOSED RULES Commerce Department Establishment of a U.S. Honey Producer Research, See International Trade Administration Promotion, and Consumer Information Order; See National Oceanic and Atmospheric Administration Withdrawal, 68728 Comptroller of the Currency Agriculture Department NOTICES See Agricultural Marketing Service Agency Information Collection Activities; Proposals, See Forest Service Submissions, and Approvals, 68856–68860 See Rural Housing Service Defense Department See Navy Department Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Education Department Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, ATF Adjunct Instructor Data Form, 68828 Submissions, and Approvals, 68774 Meetings: Bureau of Ocean Energy Management, Regulation and National Advisory Committee on Institutional Quality Enforcement and Integrity, 68774–68776

NOTICES Energy Department Agency Information Collection Activities; Proposals, See Energy Efficiency and Renewable Energy Office Submissions, and Approvals: See Federal Energy Regulatory Commission Oil and Gas Well-Completion Operations, 68817–68819 Platforms and Structures, 68814–68817 Energy Efficiency and Renewable Energy Office Requests for Interest: NOTICES Commercial Leasing for Wind Power on the Outer Workforce Guidelines for Home Energy Upgrades, 68781– Continental Shelf Offshore Maryland, 68824–68828 68782

Centers for Disease Control and Prevention Environmental Protection Agency NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Approval and Promulgation of One-Year Extension for Submissions, and Approvals; Correction, 68790 Attaining the 1997 8-Hour Ozone Standard: New Jersey portion of the Philadelphia–Wilmington– Centers for Medicare & Medicaid Services Atlantic City Moderate Nonattainment Area, 68733– 68735 NOTICES Approval of One-Year Extension for Attaining the 1997 8- Medicare Program: Hour Ozone Standard: Inpatient Hospital Deductible and Hospital and Extended Delaware, Maryland and Pennsylvania Portions of the Care Services Coinsurance Amounts for CY 2011, Philadelphia–Wilmington–Atlantic City Moderate 68799–68802 Nonattainment Area, 68736–68738 Medicare Part B Monthly Actuarial Rates, Premium Rate, NOTICES and Annual Deductible Beginning January 1, 2011, Agency Information Collection Activities; Proposals, 68790–68798 Submissions, and Approvals: Part A Premiums for CY 2011 for the Uninsured Aged National Volatile Organic Compound Emission Standards and for Certain Disabled Individuals Who Have for Consumer Products, 68782–68783 Exhausted Other Entitlement, 68798–68799 Clean Water Act Section 303(d); Availability of List Decisions, 68783–68784 Civil Rights Commission Healthy Indoor Environment Protocols for Home Energy NOTICES Upgrades, 68784–68787 Meetings: Meetings: Alabama Advisory Committee, 68754–68755 Advisory Council on Clean Air Compliance Analysis, Kansas Advisory Committee, 68755 68787–68788 Louisiana Advisory Committee, 68754 Settlements: Oklahoma Advisory Committee, 68755 Ore Knob Mine Superfund Site, Jefferson, Ashe County, Meetings; Sunshine Act:, 68755–68756 NC, 68788

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Equal Employment Opportunity Commission NOTICES RULES Recovery Publication, P–395, Fire Management Assistance Regulations under the Genetic Information Grant Program Guide, 68811 Nondiscrimination Act of 2008, 68912–68939 NOTICES Federal Energy Regulatory Commission Meetings; Sunshine Act, 68788 NOTICES Applications: Executive Office of the President Columbia Gulf Transmission Co.; Southern Natural Gas See Presidential Documents Co., 68776–68777 Combined Filings, 68777–68779 Federal Aviation Administration Filings: RULES Ameren Services Co., Northern Indiana Public Service Airworthiness Directives: Co., et al., 68779 Airbus Model A330–201, –202, –203, –223, –223F, –243, Cedar Creek Wind Energy, LLC, 68780 and –243F Airplanes, Model A330–300 Series Milford Wind Coordinator Phase I, LLC, 68779–68780 Airplanes, and Model A340–200, A340–300, A340– Technical Conferences: 500, and A340–600 Series Airplanes, 68698–68701 Reliability Monitoring, Enforcement and Compliance Airbus Model A380–800 Series Airplanes, 68693–68695 Issues, 68780 Boeing Co. Model 757 Airplanes, 68688–68690 Bombardier, Inc. Model BD–700–1A10 and BD–700–1A11 Federal Railroad Administration Airplanes, 68690–68693 RULES Bombardier, Inc. Model CL–600–2C10 (Regional Jet Series Miscellaneous Amendments to Accident/Incident Reporting 700, 701, & 702), CL–600–2D15 (Regional Jet Series Requirements, 68862–68910 705), and CL–600–2D24 (Regional Jet Series 900) Airplanes, 68682–68684 Federal Reserve System Bombardier, Inc. Model CL–600–2C10 (Regional Jet Series NOTICES 700, 701, & 702), Model CL–600–2D15 (Regional Jet Agency Information Collection Activities; Proposals, Series 705), and Model CL–600–2D24 (Regional Jet Submissions, and Approvals, 68856–68860 Series 900) Airplanes, 68695–68698 Formations of, Acquisitions by, and Mergers of Bank Empresa Brasileira de Aeronautica S.A. (EMBRAER) Holding Companies, 68789–68790 Model EMB–500 Airplanes, 68684–68686 McDonnell Douglas Corporation Model DC–9–14, DC–9– Fish and Wildlife Service 15, and DC–9–15F Airplanes; and Model DC–9–20, RULES DC–9–30, DC–9–40, and DC–9–50 Series Airplanes, Endangered and Threatened Wildlife and Plants: 68686–68688 Establishment of Manatee Refuge in Kings Bay, Citrus Establishment and Amendment of Area Navigation (RNAV) County, FL, 68719–68725 Routes: NOTICES Alaska, 68701–68702 Environmental Impact Statements; Availability, etc.: PROPOSED RULES Construction and Operation of Kaheawa II Wind Energy Airworthiness Directives: Generation Facility, Maui, HI, 68821–68823 Bombardier, Inc. Model CL 215 1A10 (CL–215), CL 215 Incidental Take Permit for the Proposed Kauai Seabird 6B11 (CL 215T Variant), and CL 215 6B11 (CL 415 Habitat Conservation Plan on Kauai, HI, 68819– Variant) Airplanes, 68728–68731 68821 The Cessna Aircraft Company Model 750 Airplanes, 68731–68733 Food and Drug Administration NOTICES Federal Communications Commission Performance of Drug and Biologics Firms in Conducting NOTICES Postmarketing Requirements and Commitments; Report Agency Information Collection Activities; Proposals, Availability, 68802–68806 Submissions, and Approvals, 68788–68789 Forest Service Federal Deposit Insurance Corporation NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Ketchikan Resource Advisory Committee, 68754 Submissions, and Approvals, 68856–68860 Determination of Insufficient Assets to Satisfy Claims Health and Human Services Department Against Financial Institution in Receivership, 68789 See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services Federal Election Commission See Food and Drug Administration NOTICES See Health Resources and Services Administration Meetings; Sunshine Act, 68789 Health Resources and Services Administration Federal Emergency Management Agency NOTICES RULES Meetings: Final Flood Elevation Determinations, 68710–68719 Secretary’s Advisory Committee on Heritable Disorders in Suspension of Community Eligibility, 68704–68710 Newborns and Children, 68802 PROPOSED RULES Statement of Organization, Functions and Delegations of Flood Elevation Determinations, 68738–68747 Authority, 68806–68808

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Homeland Security Department Western and Central Pacific Fisheries for Highly Migratory See Coast Guard Species: See Federal Emergency Management Agency 2010 Bigeye Tuna Longline Fishery Closure, 68725– See U.S. Customs and Border Protection 68726 NOTICES Housing and Urban Development Department Eastern North Pacific Gray Whale; Petition Availability, NOTICES 68756–68757 Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals: New England Fishery Management Council, 68757 Implementation of the Violence Against Women and Permit Applications: Department of Justice Reauthorization Act of 2005, Marine Mammals; File No. 781–1824, 68757–68758 68812 Taking of Threatened or Endangered Marine Mammals Informed Consumer Choice Notice and Application for Incidental to Commercial Fishing Operations, 68767– FHA Insured Mortgage, 68813–68814 68773 Minimum Property Standards for Multifamily and Care- Type Occupancy Housing, 68814 National Park Service Restrictions on Assistance to Noncitizens, 68812–68813 NOTICES Meetings: Indian Affairs Bureau National Capital Memorial Advisory Commission, 68823– NOTICES 68824 Indian Gaming, 68823 National Science Foundation Interior Department NOTICES See Bureau of Ocean Energy Management, Regulation and Agency Information Collection Activities; Proposals, Enforcement Submissions, and Approvals: See Fish and Wildlife Service Generic Survey Clearance for the Directorate of Education See Indian Affairs Bureau and Human Resources, 68829–68830 See Land Management Bureau Permit Applications Received Under the 1978 Antarctic See National Park Service Conservation Act, 68830–68831 RULES Permits Issued Under the Antarctic Conservation Act of Interior Board of Land Appeals and Other Appeals 1978, 68831 Procedures; Correction, 68704 Navy Department International Trade Administration NOTICES NOTICES Meetings: Preliminary Results and Preliminary Rescission, in Part, of Ocean Research and Resources Advisory Panel, 68773– the First Antidumping Duty Administrative Review 68774 Steel Wire Garment Hangers from the People’s Republic U.S. Naval Academy Board of Visitors, 68773 of China, 68758–68767 Rescission of Countervailing Duty Administrative Review: Nuclear Regulatory Commission Light-Walled Rectangular Pipe and Tube from the NOTICES People’s Republic of China, 68767 Application and Amendments to Facility Operating Licenses Involving Proposed No Significant Hazards Justice Department Considerations; etc., 68831–68840 See Alcohol, Tobacco, Firearms, and Explosives Bureau Meetings; Sunshine Act, 68840 Requests for Licenses to Import Radioactive Waste: Land Management Bureau Oregon Specialty Metals, 68840–68841 NOTICES Proposed Reinstatement of Terminated Oil and Gas Leases: Presidential Documents Nevada, 68824 EXECUTIVE ORDERS Defense and National Security: National Aeronautics and Space Administration Controlled Unclassified Information (EO 13556), 68675– NOTICES 68677 Granting of Partially Exclusive License, 68829 Government Agencies and Employees: Justice, Department of; Order of Succession (EO 13557), National Highway Traffic Safety Administration 68679–68680 NOTICES Petitions for Decisions of Inconsequential Noncompliance: Recovery Accountability and Transparency Board JCA Corp., 68854–68855 NOTICES Pirelli Tire LLC, 68855–68856 Meetings: Recovery Independent Advisory Panel, 68841–68842 National Oceanic and Atmospheric Administration RULES Rural Housing Service Fisheries of the Exclusive Economic Zone Off Alaska; NOTICES Closure Modification: Funding Availability: Pacific Ocean Perch in the Bering Sea Subarea of the Multi-Family Housing Preservation Revolving Fund; Bering Sea and Aleutian Islands Management Area, Demonstration Program for Fiscal Year 2011, 68748– 68726–68727 68754

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Securities and Exchange Commission U.S. Customs and Border Protection RULES NOTICES Regulation SHO, 68702–68704 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Self-Regulatory Organizations; Proposed Rule Changes: Free Trade Agreements, 68808–68809 C2 Options Exchange, Inc, 68844–68846 Importation Bond Structure, 68809–68810 Chicago Board Options Exchange, Inc, 68842–68844 Environmental Impact Statements; Availability, etc.: NASDAQ Stock Market LLC, 68846–68848 Northern Border Between the United States and Canada, 68810–68811 Small Business Administration NOTICES Disaster Declarations: Separate Parts In This Issue California, 68848–68849 North Carolina, 68848 Part II Transportation Department, Federal Railroad Thrift Supervision Office Administration, 68862–68910 NOTICES Agency Information Collection Activities; Proposals, Part III Submissions, and Approvals, 68856–68860 Equal Employment Opportunity Commission, 68912–68939

Transportation Department See Federal Aviation Administration Reader Aids See Federal Railroad Administration Consult the Reader Aids section at the end of this page for See National Highway Traffic Safety Administration phone numbers, online resources, finding aids, reminders, NOTICES and notice of recently enacted public laws. Privacy Act; Systems of Records, 68849–68854 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Treasury Department listserv.access.gpo.gov and select Online mailing list See Comptroller of the Currency archives, FEDREGTOC-L, Join or leave the list (or change See Thrift Supervision Office 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 Executive Orders: 13481 (revoked by 13557) ...... 68679 13556...... 68675 13557...... 68679 Administrative Orders: Memorandums: Memorandum of May 7, 2008 (revoked by EO 13556)...... 68675 7 CFR 983...... 68681 Proposed Rules: 1245...... 68728 14 CFR 39 (8 documents) ...... 68682, 68684, 68686, 68688, 68690, 69693, 68695, 68698 71...... 68701 Proposed Rules: 39 (2 documents) ...... 68728, 68731 17 CFR 242...... 68702 29 CFR 1635...... 68912 33 CFR 117...... 68704 40 CFR Proposed Rules: 81 (2 documents) ...... 68733, 68736 43 CFR 4...... 68704 44 CFR 64...... 68704 67 (2 documents) ...... 68710, 68714 Proposed Rules: 67 (2 documents) ...... 68738, 68744 49 CFR 225...... 68862 50 CFR 17...... 68719 300...... 68725 679...... 68726

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Federal Register Presidential Documents Vol. 75, No. 216

Tuesday, November 9, 2010

Title 3— Executive Order 13556 of November 4, 2010

The President Controlled Unclassified Information

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Purpose. This order establishes an open and uniform program for managing information that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government-wide policies, excluding information that is classified under Executive Order 13526 of December 29, 2009, or the Atomic Energy Act, as amended. At present, executive departments and agencies (agencies) employ ad hoc, agency-specific policies, procedures, and markings to safeguard and control this information, such as information that involves privacy, security, propri- etary business interests, and law enforcement investigations. This inefficient, confusing patchwork has resulted in inconsistent marking and safeguarding of documents, led to unclear or unnecessarily restrictive dissemination poli- cies, and created impediments to authorized information sharing. The fact that these agency-specific policies are often hidden from public view has only aggravated these issues. To address these problems, this order establishes a program for managing this information, hereinafter described as Controlled Unclassified Informa- tion, that emphasizes the openness and uniformity of Government-wide practice. Sec. 2. Controlled Unclassified Information (CUI). (a) The CUI categories and subcategories shall serve as exclusive designa- tions for identifying unclassified information throughout the executive branch that requires safeguarding or dissemination controls, pursuant to and con- sistent with applicable law, regulations, and Government-wide policies. (b) The mere fact that information is designated as CUI shall not have a bearing on determinations pursuant to any law requiring the disclosure of information or permitting disclosure as a matter of discretion, including disclosures to the legislative or judicial branches. (c) The National Archives and Records Administration shall serve as the Executive Agent to implement this order and oversee agency actions to ensure compliance with this order. Sec. 3. Review of Current Designations. (a) Each agency head shall, within 180 days of the date of this order: (1) review all categories, subcategories, and markings used by the agency to designate unclassified information for safeguarding or dissemination controls; and (2) submit to the Executive Agent a catalogue of proposed categories and subcategories of CUI, and proposed associated markings for information designated as CUI under section 2(a) of this order. This submission shall provide definitions for each proposed category and subcategory and iden- tify the basis in law, regulation, or Government-wide policy for safe- guarding or dissemination controls. (b) If there is significant doubt about whether information should be designated as CUI, it shall not be so designated. Sec. 4. Development of CUI Categories and Policies.

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(a) On the basis of the submissions under section 3 of this order or future proposals, and in consultation with affected agencies, the Executive Agent shall, in a timely manner, approve categories and subcategories of CUI and associated markings to be applied uniformly throughout the execu- tive branch and to become effective upon publication in the registry estab- lished under subsection (d) of this section. No unclassified information meeting the requirements of section 2(a) of this order shall be disapproved for inclusion as CUI, but the Executive Agent may resolve conflicts among categories and subcategories of CUI to achieve uniformity and may determine the markings to be used. (b) The Executive Agent, in consultation with affected agencies, shall develop and issue such directives as are necessary to implement this order. Such directives shall be made available to the public and shall provide policies and procedures concerning marking, safeguarding, dissemination, and decontrol of CUI that, to the extent practicable and permitted by law, regulation, and Government-wide policies, shall remain consistent across categories and subcategories of CUI and throughout the executive branch. In developing such directives, appropriate consideration should be given to the report of the interagency Task Force on Controlled Unclassified Infor- mation published in August 2009. The Executive Agent shall issue initial directives for the implementation of this order within 180 days of the date of this order. (c) The Executive Agent shall convene and chair interagency meetings to discuss matters pertaining to the program established by this order. (d) Within 1 year of the date of this order, the Executive Agent shall establish and maintain a public CUI registry reflecting authorized CUI cat- egories and subcategories, associated markings, and applicable safeguarding, dissemination, and decontrol procedures. (e) If the Executive Agent and an agency cannot reach agreement on an issue related to the implementation of this order, that issue may be appealed to the President through the Director of the Office of Management and Budget. (f) In performing its functions under this order, the Executive Agent, in accordance with applicable law, shall consult with representatives of the public and State, local, tribal, and private sector partners on matters related to approving categories and subcategories of CUI and developing implementing directives issued by the Executive Agent pursuant to this order. Sec. 5. Implementation. (a) Within 180 days of the issuance of initial policies and procedures by the Executive Agent in accordance with section 4(b) of this order, each agency that originates or handles CUI shall provide the Executive Agent with a proposed plan for compliance with the requirements of this order, including the establishment of interim target dates. (b) After a review of agency plans, and in consultation with affected agencies and the Office of Management and Budget, the Executive Agent shall establish deadlines for phased implementation by agencies. (c) In each of the first 5 years following the date of this order and biennially thereafter, the Executive Agent shall publish a report on the status of agency implementation of this order. Sec. 6. General Provisions. (a) This order shall be implemented in a manner consistent with: (1) applicable law, including protections of confidentiality and privacy rights; (2) the statutory authority of the heads of agencies, including authorities related to the protection of information provided by the private sector to the Federal Government; and

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(3) applicable Government-wide standards and guidelines issued by the National Institute of Standards and Technology, and applicable policies established by the Office of Management and Budget. (b) The Director of National Intelligence (Director), with respect to the Intelligence Community and after consultation with the heads of affected agencies, may issue such policy directives and guidelines as the Director deems necessary to implement this order with respect to intelligence and intelligence-related information. Procedures or other guidance issued by Intel- ligence Community element heads shall be in accordance with such policy directives or guidelines issued by the Director. Any such policy directives or guidelines issued by the Director shall be in accordance with this order and directives issued by the Executive Agent. (c) This order shall not be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, and legislative proposals. (d) 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, or agents, or any other person. (e) This order shall be implemented subject to the availability of appropria- tions. (f) The Attorney General, upon request by the head of an agency or the Executive Agent, shall render an interpretation of this order with respect to any question arising in the course of its administration. (g) The Presidential Memorandum of May 7, 2008, entitled ‘‘Designation and Sharing of Controlled Unclassified Information (CUI)’’ is hereby re- scinded.

THE WHITE HOUSE, November 4, 2010.

[FR Doc. 2010–28360 Filed 11–8–10; 8:45 am] Billing code 3195–W1–P

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Executive Order 13557 of November 4, 2010

Providing an Order of Succession Within the Department of Justice

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., it is hereby ordered that: Section 1. Order of Succession. Subject to the provisions of section 2 of this order, the following officers, in the order listed, shall act as and perform the functions and duties of the office of Attorney General, during any period in which the Attorney General, the Deputy Attorney General, the Associate Attorney General, and any officers designated by the Attorney General pursu- ant to 28 U.S.C. 508 to act as Attorney General have died, resigned, or otherwise become unable to perform the functions and duties of the office of Attorney General, until such time as at least one of the officers mentioned above is able to perform the functions and duties of that office: (a) United States Attorney for the Eastern District of Virginia; (b) United States Attorney for the District of Minnesota; and (c) United States Attorney for the District of Arizona. Sec. 2. Exceptions. (a) No individual who is serving in an office listed in section 1 of this order in an acting capacity, by virtue of so serving, shall act as Attorney General pursuant to this order. (b) No individual listed in section 1 shall act as Attorney General unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998. (c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Attorney General. Sec. 3. Executive Order 13481 of December 9, 2008, is revoked.

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Sec. 4. 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, or agents, or any other person.

THE WHITE HOUSE, November 4, 2010.

[FR Doc. 2010–28365 Filed 11–8–10; 8:45 am] Billing code 3195–W1–P

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Rules and Regulations Federal Register Vol. 75, No. 216

Tuesday, November 9, 2010

This section of the FEDERAL REGISTER other marketing order regulations by changing the term ‘‘Chromatograph’’ to contains regulatory documents having general viewing a guide at the following Web ‘‘Chromatography’’ in paragraph (d)(3), applicability and legal effect, most of which site: http://www.ams.usda.gov/ changing the certification of lots based are keyed to and codified in the Code of MarketingOrdersSmallBusinessGuide; on aflatoxin levels in the samples in Federal Regulations, which is published under or by contacting Antoinette Carter, paragraph (d)(5), and removing the 50 titles pursuant to 44 U.S.C. 1510. Marketing Order Administration reference to sample #3 in paragraph The Code of Federal Regulations is sold by Branch, Fruit and Vegetable Programs, (d)(6). the Superintendent of Documents. Prices of AMS, USDA, 1400 Independence Final Regulatory Flexibility Analysis new books are listed in the first FEDERAL Avenue, SW., STOP 0237, Washington, REGISTER issue of each week. DC 20250–0237; Telephone: (202) 720– Pursuant to requirements set forth in 2491, Fax: (202) 720–8938, or E-mail: the Regulatory Flexibility Act (RFA) (5 [email protected]. U.S.C. 601–612), the Agricultural DEPARTMENT OF AGRICULTURE Marketing Service (AMS) has SUPPLEMENTARY INFORMATION: This rule considered the economic impact of this Agricultural Marketing Service is issued under Marketing Agreement action on small entities. Accordingly, and Order No. 983, as amended (7 CFR AMS has prepared this final regulatory 7 CFR Part 983 part 983), regulating the handling of flexibility analysis. pistachios grown in California, Arizona, The purpose of the RFA is to fit [Doc. No. AMS–FV–10–0031; FV10–983–1 and New Mexico, hereinafter referred to regulatory actions to the scale of FIR] as the ‘‘order.’’ The order is effective business subject to such actions in order under the Agricultural Marketing Pistachios Grown in California, that small businesses will not be unduly Agreement Act of 1937, as amended Arizona, and New Mexico; Modification or disproportionately burdened. (7 U.S.C. 601–674), hereinafter referred of the Aflatoxin Regulations Marketing orders issued pursuant to the to as the ‘‘Act.’’ Act, and the rules issued thereunder, are AGENCY: Agricultural Marketing Service, The Department of Agriculture unique in that they are brought about USDA. (USDA) is issuing this rule in through group action of essentially conformance with Executive Order ACTION: Affirmation of interim rule as small entities acting on their own final rule. 12866. behalf. The handling of pistachios grown in There are approximately 29 handlers SUMMARY: The Department of California, Arizona, and New Mexico is and 875 producers of pistachios in Agriculture (USDA) is adopting, as a regulated by 7 CFR part 983. Prior to California, Arizona and New Mexico. final rule, without change, an interim this change, pistachios for shipment to Small business firms, which include rule that modified the aflatoxin domestic markets were subject to handlers regulated under the order, sampling and testing regulations different aflatoxin sampling and testing have been defined by the Small prescribed under the California, procedures than pistachios for shipment Business Administration (SBA) (13 CFR Arizona, and New Mexico pistachio to certain export markets. This rule 121.201) as those having annual receipts marketing order (order). The interim continues in effect an interim rule of less than $7,000,000. Small rule streamlined the aflatoxin sampling modifying the aflatoxin sampling and agricultural producers have been and testing procedures under the order’s testing procedures to provide consistent defined as those with annual receipts of rules and regulations for pistachios to be and uniform procedures for pistachios less than $750,000. shipped for domestic human regardless of market destination. These Currently, about 72 percent of the consumption while maintaining changes are intended to streamline California handlers ship less than sufficient aflatoxin controls. These handler operating procedures and $7,000,000 worth of pistachios on an changes are expected to reduce handler reduce operating costs. annual basis and would therefore be operating costs by providing a uniform The specific changes modify the considered small business firms under and consistent aflatoxin sampling and sampling procedure detailing how the the SBA definition. Based on acreage, testing procedure for pistachios shipped samples will be created and analyzed, production, and grower prices reported to all market destinations. depending on the size of the pistachio by the Committee, the average annual lots. They also specify how the lots are revenue for small handlers is DATES: Effective Date: November 10, certified based upon the aflatoxin levels approximately $1,721,911. The industry 2010. found in the samples. Finally, the term has estimated that one of the Arizona FOR FURTHER INFORMATION CONTACT: ‘‘Chromatograph’’ is changed to handlers and all three New Mexico Andrea Ricci, Marketing Specialist, or ‘‘Chromatography’’ and unnecessary handlers would also be considered Kurt J. Kimmel, Regional Manager, language was removed. small businesses. California Marketing Field Office, In an interim rule published in the Data provided by the Committee Marketing Order Administration Federal Register on July 23, 2010, and regarding the size of the 2009 California Branch, Fruit and Vegetable Programs, effective on July 24, 2010, (75 FR 43045, crop indicates that approximately 630 AMS, USDA; Telephone: (559) 487– Doc. No. AMS–FV–10–0031, FV10–983– California growers had 350,000 pounds 5901, Fax: (559) 487–5906, or E-mail: 1 IR), § 983.150 (a), (d)(2), (d)(3), (d)(4), or less of assessable dry weight of [email protected] or and (d)(6) were amended by removing pistachios. Using the most recent grower [email protected]. unnecessary language from § 983.150(a), price of $2.04 per pound for pistachios, Small businesses may obtain changing the creation and analysis of it is estimated that 81 percent of information on complying with this and test samples in paragraph (d)(2), California producers had receipts of

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approximately $714,000, which is less given in the interim rule, we are from mandatory continuing than $750,000, and thus would be adopting the interim rule as a final rule, airworthiness information (MCAI) considered small business according to without change. originated by an aviation authority of the SBA definition. Although there is no To view the interim rule, go to: http: another country to identify and correct official data available to date, as these //www.regulations.gov and type the an unsafe condition on an aviation states were recently added to the order following docket number into the product. The MCAI describes the unsafe and have not completed one full crop keyword search section: FV10–983–1 IR. condition as: year for reporting purposes, the industry Follow the link provided in the The manufacturer has informed Transport estimates that the majority of producers ‘‘Results’’ section of this page. Canada that a certain number of the resolver in Arizona and New Mexico would also This action also affirms information stators, which were installed in the angle of be considered small businesses. contained in the interim rule concerning attack (AOA) transducers, were not cleaned This rule continues in effect the Executive Orders 12866 and 12988, correctly. This condition can degrade the action that modified the aflatoxin Paperwork Reduction Act (44 U.S.C. AOA transducer performance at low sampling and testing regulations chapter 35), and the E-Gov Act (44 temperatures resulting in freezing of the AOA currently prescribed under the U.S.C. 101). transducer resolver, which may provide California, Arizona and New Mexico inaccurate AOA data to the Stall Protection After consideration of all relevant System (SPS). If not corrected, this condition pistachio order, as well as removed material presented, it is found that unnecessary language and corrected can result in early or late activation of the finalizing the interim rule, without stick shaker and/or stick pusher. terminology. The changes to § 983.150 change, as published in the Federal These conditions could result in are expected to reduce handler Register (75 FR 43045, July 23, 2010) reduced ability of the flight crew to operating costs by providing a uniform will tend to effectuate the declared maintain a safe flight and landing of the and consistent aflatoxin sampling and policy of the Act. testing procedure for pistachios shipped airplane. We are issuing this AD to to all market destinations. Authority for List of Subjects in 7 CFR Part 983 require actions to correct the unsafe the change in the order’s rules and Marketing agreements and orders, condition on these products. regulations is provided in § 983.50. Pistachios, Reporting and recordkeeping DATES: This AD becomes effective This action is expected to benefit requirements. December 14, 2010. producers and handlers, regardless of The Director of the Federal Register size and regardless of the market they PART 983—[AMENDED] approved the incorporation by reference ship into, as it streamlines handler of a certain publication listed in this AD operations and increases marketing ■ Accordingly, the interim rule that as of December 14, 2010. flexibility. Reducing the number of amended 7 CFR part 983 that was ADDRESSES: You may examine the AD required samples, the number of published at 75 FR 43045 on July 23, docket on the Internet at http:// aflatoxin analyses, and the total weight 2010, is adopted as a final rule, without www.regulations.gov or in person at the of the lot samples, while increasing the change. U.S. Department of Transportation, weight of the test samples for each lot Dated: November 3, 2010. Docket Operations, M–30, West is expected to result in an estimated David R. Shipman, Building Ground Floor, Room W12–140, annual savings to the industry of Acting Administrator, Agricultural Marketing 1200 New Jersey Avenue, SE., approximately $18,000, including Service. Washington, DC. reductions of $900 for sampling, $1,400 FOR FURTHER INFORMATION CONTACT: for testing, $12,750 for labor, and $3,750 [FR Doc. 2010–28240 Filed 11–8–10; 8:45 am] BILLING CODE 3410–02–P Joseph Licata, Aerospace Engineer, in shipping costs for those small Avionics and Flight Test Branch, handlers that do not do testing on site. ANE–172, FAA, New York Aircraft This action will not impose any Certification Office (ACO), 1600 Stewart additional reporting or recordkeeping DEPARTMENT OF TRANSPORTATION Avenue, Suite 410, Westbury, New York requirements on either small or large 11590; telephone (516) 228–7361; fax pistachio handlers. As with all Federal Federal Aviation Administration (516) 794–5531. marketing order programs, reports and forms are periodically reviewed to 14 CFR Part 39 SUPPLEMENTARY INFORMATION: reduce information requirements and [Docket No. FAA–2010–0700; Directorate Discussion duplication by industry and public Identifier 2010–NM–123–AD; Amendment We issued a notice of proposed 39–16500; AD 2010–23–11] sector agencies. In addition, USDA has rulemaking (NPRM) to amend 14 CFR not identified any relevant Federal rules RIN 2120–AA64 part 39 to include an AD that would that duplicate, overlap or conflict with apply to the specified products. That this rule. Airworthiness Directives; Bombardier, NPRM was published in the Federal Further, the Committee’s meeting was Inc. Model CL–600–2C10 (Regional Jet Register on July 27, 2010 (75 FR 43882). widely publicized throughout the Series 700, 701, & 702), CL–600–2D15 That NPRM proposed to correct an pistachio industry and all interested (Regional Jet Series 705), and CL–600– unsafe condition for the specified persons were invited to attend the 2D24 (Regional Jet Series 900) products. The MCAI states: meeting and participate in Committee Airplanes deliberations. Like all Committee The manufacturer has informed Transport meetings, the meeting was a public AGENCY: Federal Aviation Canada that a certain number of the resolver meeting and all entities, both large and Administration (FAA), Department of stators, which were installed in the angle of Transportation (DOT). attack (AOA) transducers, were not cleaned small, were able to express their views correctly. This condition can degrade the on this issue. ACTION: Final rule. AOA transducer performance at low Comments on the interim rule were temperatures resulting in freezing of the AOA required to be received on or before SUMMARY: We are adopting a new transducer resolver, which may provide September 21, 2010. No comments were airworthiness directive (AD) for the inaccurate AOA data to the Stall Protection received. Therefore, for the reasons products listed above. This AD results System (SPS). If not corrected, this condition

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can result in early or late activation of the section, Congress charges the FAA with Authority: 49 U.S.C. 106(g), 40113, 44701. stick shaker and/or stick pusher. promoting safe flight of civil aircraft in These conditions could result in air commerce by prescribing regulations § 39.13 [Amended] for practices, methods, and procedures reduced ability of the flight crew to ■ 2. The FAA amends § 39.13 by adding the Administrator finds necessary for maintain a safe flight and landing of the the following new AD: airplane. The required actions include safety in air commerce. This regulation an inspection to determine if certain is within the scope of that authority 2010–23–11 Bombardier, Inc.: Amendment AOA transducers are installed and because it addresses an unsafe condition 39–16500. Docket No. FAA–2010–0700; Directorate Identifier 2010–NM–123–AD. replacement of affected transducers. that is likely to exist or develop on You may obtain further information by products identified in this rulemaking Effective Date examining the MCAI in the AD docket. action. (a) This airworthiness directive (AD) becomes effective December 14, 2010. Comments Regulatory Findings We gave the public the opportunity to We determined that this AD will not Affected ADs participate in developing this AD. We have federalism implications under (b) None. considered the comment received. Air Executive Order 13132. This AD will Applicability Line Pilots Association, International not have a substantial direct effect on (c) This AD applies to Bombardier, Inc. (ALPA), supports the NPRM. the States, on the relationship between Model CL–600–2C10 (Regional Jet Series 700, the national government and the States, Conclusion 701, & 702), CL–600–2D15 (Regional Jet or on the distribution of power and Series 705), and CL–600–2D24 (Regional Jet We reviewed the available data, responsibilities among the various Series 900) airplanes, certificated in any including the comment received, and levels of government. category, equipped with Thales angle of determined that air safety and the For the reasons discussed above, I attack transducers having part number (P/N) public interest require adopting the AD certify this AD: C16258AA. as proposed. 1. Is not a ‘‘significant regulatory Subject Differences Between This AD and the action’’ under Executive Order 12866; (d) Air Transport Association (ATA) of MCAI or Service Information 2. Is not a ‘‘significant rule’’ under the America Code 27: Flight Controls. DOT Regulatory Policies and Procedures We have reviewed the MCAI and (44 FR 11034, February 26, 1979); and Reason related service information and, in 3. Will not have a significant (e) The mandatory continuing general, agree with their substance. But economic impact, positive or negative, airworthiness information (MCAI) states: we might have found it necessary to use on a substantial number of small entities The manufacturer has informed Transport different words from those in the MCAI Canada that a certain number of the resolver under the criteria of the Regulatory stators, which were installed in the angle of to ensure the AD is clear for U.S. Flexibility Act. operators and is enforceable. In making attack (AOA) transducers, were not cleaned We prepared a regulatory evaluation correctly. This condition can degrade the these changes, we do not intend to differ of the estimated costs to comply with AOA transducer performance at low substantively from the information this AD and placed it in the AD docket. temperatures resulting in freezing of the AOA provided in the MCAI and related transducer resolver, which may provide service information. Examining the AD Docket inaccurate AOA data to the Stall Protection We might also have required different You may examine the AD docket on System (SPS). If not corrected, this condition actions in this AD from those in the the Internet at http:// can result in early or late activation of the MCAI in order to follow our FAA www.regulations.gov; or in person at the stick shaker and/or stick pusher. These conditions could result in reduced policies. Any such differences are Docket Operations office between 9 a.m. highlighted in a NOTE within the AD. ability of the flight crew to maintain a safe and 5 p.m., Monday through Friday, flight and landing of the airplane. Costs of Compliance except Federal holidays. The AD docket contains the NPRM, the regulatory Compliance We estimate that this AD will affect evaluation, any comments received, and (f) You are responsible for having the 380 products of U.S. registry. We also other information. The street address for actions required by this AD performed within estimate that it will take about 1 work- the Docket Operations office (telephone the compliance times specified, unless the actions have already been done. hour per product to comply with the (800) 647–5527) is in the ADDRESSES basic requirements of this AD. The section. Comments will be available in Inspection average labor rate is $85 per work-hour. the AD docket shortly after receipt. Based on these figures, we estimate the (g) Within 750 flight hours after the List of Subjects in 14 CFR Part 39 effective date of this AD, inspect the serial cost of this AD to the U.S. operators to number of each AOA transducer having P/N be $32,300, or $85 per product. Air transportation, Aircraft, Aviation C16258AA to determine if the serial number Authority for This Rulemaking safety, Incorporation by reference, is identified in paragraph 1.A. of Bombardier Safety. Alert Service Bulletin A670BA–27–054, Title 49 of the United States Code Revision A, dated January 18, 2010, in specifies the FAA’s authority to issue Adoption of the Amendment accordance with the Accomplishment rules on aviation safety. Subtitle I, Instructions of Bombardier Alert Service ■ Accordingly, under the authority section 106, describes the authority of Bulletin A670BA–27–054, Revision A, dated delegated to me by the Administrator, the FAA Administrator. ‘‘Subtitle VII: January 18, 2010. A review of airplane the FAA amends 14 CFR part 39 as Aviation Programs,’’ describes in more maintenance records is acceptable in lieu of follows: this inspection if the serial number of the detail the scope of the Agency’s AOA transducer can be conclusively authority. PART 39—AIRWORTHINESS determined from that review. We are issuing this rulemaking under DIRECTIVES (1) If the serial number is not listed in the authority described in ‘‘Subtitle VII, paragraph 1.A. of Bombardier Alert Service Part A, Subpart III, Section 44701: ■ 1. The authority citation for part 39 Bulletin A670BA–27–054, Revision A, dated General requirements.’’ Under that continues to read as follows: January 18, 2010, no further action is

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required by this AD other than compliance approved the information collection products listed above. This AD results with paragraph (h) of this AD. requirements and has assigned OMB Control from mandatory continuing (2) If the serial number is listed in Number 2120–0056. airworthiness information (MCAI) paragraph 1.A. of Bombardier Alert Service Bulletin A670BA–27–054, Revision A, dated Related Information issued by an aviation authority of January 18, 2010, and has the suffix ‘‘C’’, no (j) Refer to MCAI Canadian Airworthiness another country to identify and correct further action is required by this AD other Directive CF–2010–13, dated May 6, 2010; an unsafe condition on an aviation than compliance with paragraph (h) of this and Bombardier Alert Service Bulletin product. The MCAI describes the unsafe AD. A670BA–27–054, Revision A, dated January condition as: (3) If the serial number is listed paragraph 18, 2010; for related information. It has been found the occurrences of failure 1.A. of Bombardier Alert Service Bulletin Material Incorporated by Reference of the Flow Control Shutoff Valve (FCSOV) A670BA–27–054, Revision A, dated January in the closed position. Failure of the two 18, 2010, and does not have the suffix ‘‘C’’, (k) You must use Bombardier Alert Service before further flight, replace the AOA Bulletin A670BA–27–054, valves (left and right) can cause the loss of transducer with a new or serviceable Revision A, dated January 18, 2010, to do the pneumatic source, and lead to loss of the transducer, in accordance with Part C of the the actions required by this AD, unless the cabin pressurization. Accomplishment Instructions of Bombardier AD specifies otherwise. Since this condition affects flight safety, a Alert Service Bulletin A670BA–27–054, (1) The Director of the Federal Register corrective action is required. Thus, sufficient Revision A, dated January 18, 2010. approved the incorporation by reference of reason exists to request compliance with this AD. Note 1: To replace any AOA transducer, this service information under 5 U.S.C. the replacement AOA transducer must either 552(a) and 1 CFR part 51. We are issuing this AD to require be outside of the affected serial numbers as (2) For service information identified in actions to correct the unsafe condition this AD, contact Bombardier, Inc., 400 Coˆte- identified in paragraph 1.A. of Bombardier on these products. Alert Service Bulletin A670BA–27–054, Vertu Road West, Dorval, Que´bec H4S 1Y9, DATES: This AD becomes effective Revision A, dated January 18, 2010, or have Canada; telephone 514–855–5000; fax 514– the suffix ‘‘C’’. 855–7401; e-mail December 14, 2010. [email protected]; Internet http:// On December 14, 2010, the Director of (h) As of the effective date of this AD, no www.bombardier.com. AOA transducer having both a serial number the Federal Register approved the (3) You may review copies of the service and P/N C16258AA as identified in incorporation by reference of certain information at the FAA, Transport Airplane paragraph 1.A. of Bombardier Alert Service publications listed in this AD. Directorate, 1601 Lind Avenue, SW., Renton, Bulletin A670BA–27–054, Revision A, dated Washington. For information on the ADDRESSES: You may examine the AD January 18, 2010, may be installed on any availability of this material at the FAA, call docket on the Internet at http:// airplane unless the AOA transducer has been 425–227–1221. www.regulations.gov or in person at inspected by the manufacturer and identified (4) You may also review copies of the Document Management Facility, U.S. with the suffix ‘‘C’’. service information that is incorporated by Department of Transportation, Docket FAA AD Differences reference at the National Archives and Operations, M–30, West Building Records Administration (NARA). For Note 2: This AD differs from the MCAI Ground Floor, Room W12–140, 1200 information on the availability of this and/or service information as follows: No New Jersey Avenue, SE., Washington, material at NARA, call 202–741–6030, or go differences. DC 20590. to: http://www.archives.gov/federal_register/ _ _ _ _ For service information identified in Other FAA AD Provisions code of federal regulations/ibr locations. html. this AD, contact EMBRAER Empresa (i) The following provisions also apply to Brasileira de Aerona´utica S.A., Phenom this AD: Issued in Renton, Washington, on October Maintenance Support, Av. Brig. Farina 21, 2010. (1) Alternative Methods of Compliance Lima, 2170, Sao Jose dos Campos—SP, (AMOCs): The Manager, New York Aircraft Michael Kaszycki, Certification Office (ACO), ANE–170, FAA, CEP: 12227–901—P.O. Box: 38/2, Acting Manager, Transport Airplane BRASIL, telephone: ++55 12 3927–5383; has the authority to approve AMOCs for this Directorate, Aircraft Certification Service. AD, if requested using the procedures found fax: ++55 12 3927–2610; E-mail: in 14 CFR 39.19. Send information to ATTN: [FR Doc. 2010–28089 Filed 11–8–10; 8:45 am] [email protected]; Program Manager, Continuing Operational BILLING CODE 4910–13–P Internet: http://www.embraer.com.br. Safety, FAA, New York ACO, 1600 Stewart You may review copies of the Avenue, Suite 410, Westbury, New York referenced service information at the 11590; telephone 516–228–7300; fax 516– DEPARTMENT OF TRANSPORTATION FAA, Small Airplane Directorate, 901 794–5531. Before using any approved AMOC on any airplane to which the AMOC applies, Federal Aviation Administration Locust, Kansas City, Missouri 64106. notify your principal maintenance inspector For information on the availability of (PMI) or principal avionics inspector (PAI), 14 CFR Part 39 this material at the FAA, call 816–329– as appropriate, or lacking a principal 4148. inspector, your local Flight Standards District [Docket No. FAA–2010–0870; Directorate FOR FURTHER INFORMATION CONTACT: Karl Office. The AMOC approval letter must Identifier 2010–CE–045–AD; Amendment Schletzbaum, Aerospace Engineer, FAA, 39–16505; AD 2010–23–16] specifically reference this AD. Small Airplane Directorate, 901 Locust, (2) Airworthy Product: For any requirement RIN 2120–AA64 in this AD to obtain corrective actions from Room 301, Kansas City, Missouri 64106; a manufacturer or other source, use these telephone: (816) 329–4146; fax: (816) actions if they are FAA-approved. Corrective Airworthiness Directives; Empresa 329–4090. Brasileira de Aeronautica S.A. actions are considered FAA-approved if they SUPPLEMENTARY INFORMATION: are approved by the State of Design Authority (EMBRAER) Model EMB–500 Airplanes (or their delegated agent). You are required Discussion AGENCY: Federal Aviation to assure the product is airworthy before it We issued a notice of proposed is returned to service. Administration (FAA), Department of (3) Reporting Requirements: For any Transportation (DOT). rulemaking (NPRM) to amend 14 CFR reporting requirement in this AD, under the ACTION: Final rule. part 39 to include an AD that would provisions of the Paperwork Reduction Act apply to the specified products. That (44 U.S.C. 3501 et seq.), the Office of SUMMARY: We are adopting a new NPRM was published in the Federal Management and Budget (OMB) has airworthiness directive (AD) for the Register on September 1, 2010 (75 FR

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53609). That NPRM proposed to correct have included all cost in our cost List of Subjects in 14 CFR Part 39 estimate. an unsafe condition for the specified Air transportation, Aircraft, Aviation products. The MCAI states: Authority for This Rulemaking safety, Incorporation by reference, It has been found the occurrences of failure Safety. of the Flow Control Shutoff Valve (FCSOV) Title 49 of the United States Code in the closed position. Failure of the two specifies the FAA’s authority to issue Adoption of the Amendment valves (left and right) can cause the loss of rules on aviation safety. Subtitle I, ■ the pneumatic source, and lead to loss of the section 106, describes the authority of Accordingly, under the authority cabin pressurization. the FAA Administrator. ‘‘Subtitle VII: delegated to me by the Administrator, Since this condition affects flight safety, a Aviation Programs,’’ describes in more the FAA amends 14 CFR part 39 as corrective action is required. Thus, sufficient detail the scope of the Agency’s follows: reason exists to request compliance with this authority. AD. We are issuing this rulemaking under PART 39—AIRWORTHINESS The MCAI requires replacing both the authority described in ‘‘Subtitle VII, DIRECTIVES FCSOVs with new and improved Part A, Subpart III, Section 44701: ■ 1. The authority citation for part 39 FCSOVs. You may obtain further General requirements.’’ Under that continues to read as follows: information by examining the MCAI in section, Congress charges the FAA with the AD docket promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. air commerce by prescribing regulations Comments § 39.13 [Amended] for practices, methods, and procedures ■ We gave the public the opportunity to the Administrator finds necessary for 2. The FAA amends § 39.13 by adding participate in developing this AD. We safety in air commerce. This regulation the following new AD: received no comments on the NPRM or is within the scope of that authority 2010–23–16 Empresa Brasileira de on the determination of the cost to the because it addresses an unsafe condition Aeronautica S.A. (EMBRAER): public. that is likely to exist or develop on Amendment 39–16505; Docket No. FAA–2010–0870; Directorate Identifier Conclusion products identified in this rulemaking action. 2010–CE–045–AD. We reviewed the available data and Effective Date Regulatory Findings determined that air safety and the (a) This airworthiness directive (AD) public interest require adopting the AD We determined that this AD will not becomes effective December 14, 2010. as proposed. have federalism implications under Executive Order 13132. This AD will Affected ADs Differences Between This AD and the (b) None. MCAI or Service Information not have a substantial direct effect on the States, on the relationship between Applicability We have reviewed the MCAI and the national government and the States, related service information and, in (c) This AD applies to Empresa Brasileira or on the distribution of power and de Aeronautica S.A. (EMBRAER) Model general, agree with their substance. But responsibilities among the various EMB–500 airplanes, serial numbers 50000005 we might have found it necessary to use levels of government. through 50000118, 50000120, 50000122 different words from those in the MCAI For the reasons discussed above, I through 50000126, 50000128, and 50000131, to ensure the AD is clear for U.S. certify this AD: certificated in any category. operators and is enforceable. In making ‘‘ (1) Is not a significant regulatory Subject these changes, we do not intend to differ action’’ under Executive Order 12866; substantively from the information (2) Is not a ‘‘significant rule’’ under (d) Air Transport Association of America provided in the MCAI and related DOT Regulatory Policies and Procedures (ATA) Code 36: Pneumatic. service information. (44 FR 11034, February 26, 1979); and Reason We might also have required different (3) Will not have a significant (e) The mandatory continuing actions in this AD from those in the economic impact, positive or negative, airworthiness information (MCAI) states: MCAI in order to follow FAA policies. on a substantial number of small entities It has been found the occurrences of failure Any such differences are highlighted in under the criteria of the Regulatory of the Flow Control Shutoff Valve (FCSOV) a NOTE within the AD. Flexibility Act. in the closed position. Failure of the two We prepared a regulatory evaluation valves (left and right) can cause the loss of Costs of Compliance of the estimated costs to comply with the pneumatic source, and lead to loss of the We estimate that this AD will affect this AD and placed it in the AD Docket. cabin pressurization. 79 products of U.S. registry. We also Since this condition affects flight safety, a Examining the AD Docket corrective action is required. Thus, sufficient estimate that it will take about 4 work- reason exists to request compliance with this hours per product to comply with the You may examine the AD docket on AD. basic requirements of this AD. The the Internet at http:// The MCAI requires replacing both FCSOVs average labor rate is $85 per work-hour. www.regulations.gov; or in person at the with new and improved FCSOVs. Required parts will cost about $10,487 Docket Management Facility between per product. 9 a.m. and 5 p.m., Monday through Actions and Compliance Based on these figures, we estimate Friday, except Federal holidays. The AD (f) Unless already done, at the next the cost of the AD on U.S. operators to docket contains the NPRM, the scheduled maintenance check or within 12 be $855,333, or $10,827 per product. regulatory evaluation, any comments months after December 14, 2010 (the effective According to Embraer, the parts cost received, and other information. The date of this AD) or within 600 hours time- in-service after December 14, 2010 (the of this AD may be covered under street address for the Docket Office effective date of this AD), whichever occurs warranty, thereby reducing the cost (telephone (800) 647–5527) is in the first, replace both flow control shutoff valves, impact on affected individuals. We do ADDRESSES section. Comments will be part number (P/N) 1300230–13 and P/N not control warranty coverage for available in the AD docket shortly after 1300230–23, with P/N 1300230–15 and P/N affected individuals. As a result, we receipt. 1300230–25. Do the replacements following

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EMBRAER Phenom Service Bulletin 500–21– this service information under 5 U.S.C. reports of cracking in the vertical radius 0001, dated December 9, 2009. 552(a) and 1 CFR part 51. of the upper cap of the center wing rear (2) For service information identified in FAA AD Differences spar, and the horizontal flange on the this AD, contact EMBRAER Empresa inboard side of the of the rear spar Brasileira de Aerona´utica S.A., Phenom Note: This AD differs from the MCAI and/ upper cap, which resulted from stress or service information as follows: No Maintenance Support, Av. Brig. Farina Lima, differences. 2170, Sao Jose dos Campos—SP, CEP: 12227– corrosion. We are issuing this AD to 901—P.O. Box: 38/2, BRASIL, telephone: detect and correct cracking in the Other FAA AD Provisions ++55 12 3927–5383; fax: ++55 12 3927–2610; vertical leg or the horizontal flange of (g) The following provisions also apply to E-mail: [email protected]; the upper cap of the left or right center this AD: Internet: http://www.embraer.com.br. wing rear spar, which could cause a (1) Alternative Methods of Compliance (3) You may review copies of the possible fuel leak, damage to the wing (AMOCs): The Manager, Standards Office, referenced service information at the FAA, skin, and structural failure of the upper FAA, has the authority to approve AMOCs Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information cap, and result in reduced structural for this AD, if requested using the procedures integrity of the airplane. found in 14 CFR 39.19. Send information to on the availability of this material at the ATTN: Karl Schletzbaum, Aerospace FAA, call 816–329–4148. DATES: This AD is effective December Engineer, FAA, Small Airplane Directorate, (4) You may also review copies of the 14, 2010. 901 Locust, Room 301, Kansas City, Missouri service information incorporated by reference The Director of the Federal Register 64106; telephone: (816) 329–4146; fax: (816) for this AD at the National Archives and approved the incorporation by reference 329–4090. Before using any approved AMOC Records Administration (NARA). For of a certain publication listed in the AD on any airplane to which the AMOC applies, information on the availability of this as of December 14, 2010. notify your appropriate principal inspector material at NARA, call (202) 741–6030, or go (PI) in the FAA Flight Standards District to: http://www.archives.gov/federal_register/ ADDRESSES: For service information Office (FSDO), or lacking a PI, your local code_of_federal_regulations/ identified in this AD, contact Boeing FSDO. ibr_locations.html. Commercial Airplanes, Attention: Data (2) Airworthy Product: For any requirement Issued in Kansas City, Missouri, on & Services Management, 3855 in this AD to obtain corrective actions from October 29, 2010. Lakewood Boulevard, MC D800–0019, a manufacturer or other source, use these John Colomy, Long Beach, California 90846–0001; actions if they are FAA-approved. Corrective telephone 206–544–5000, extension 2; actions are considered FAA-approved if they Acting Manager, Small Airplane Directorate, Aircraft Certification Service. fax 206–766–5683; e-mail are approved by the State of Design Authority [email protected]; Internet (or their delegated agent). You are required [FR Doc. 2010–27974 Filed 11–8–10; 8:45 am] https://www.myboeingfleet.com. You to assure the product is airworthy before it BILLING CODE 4910–13–P is returned to service. may review copies of the referenced (3) Reporting Requirements: For any service information at the FAA, reporting requirement in this AD, a Federal DEPARTMENT OF TRANSPORTATION Transport Airplane Directorate, 1601 agency may not conduct or sponsor, and a Lind Avenue, SW., Renton, Washington. person is not required to respond to, nor Federal Aviation Administration For information on the availability of shall a person be subject to a penalty for this material at the FAA, call 425–227– failure to comply with a collection of 1221. information subject to the requirements of 14 CFR Part 39 the Paperwork Reduction Act unless that [Docket No. FAA–2010–0705; Directorate Examining the AD Docket collection of information displays a current Identifier 2009–NM–206–AD; Amendment You may examine the AD docket on valid OMB Control Number. The OMB 39–16499; AD 2010–23–10] Control Number for this information the Internet at http:// collection is 2120–0056. Public reporting for RIN 2120–AA64 www.regulations.gov; or in person at the this collection of information is estimated to Docket Management Facility between be approximately 5 minutes per response, Airworthiness Directives; McDonnell 9 a.m. and 5 p.m., Monday through including the time for reviewing instructions, Douglas Corporation Model DC–9–14, Friday, except Federal holidays. The AD completing and reviewing the collection of DC–9–15, and DC–9–15F Airplanes; docket contains this AD, the regulatory information. All responses to this collection and Model DC–9–20, DC–9–30, DC–9– evaluation, any comments received, and of information are mandatory. Comments 40, and DC–9–50 Series Airplanes other information. The address for the concerning the accuracy of this burden and Docket Office (phone: 800–647–5527) is suggestions for reducing the burden should AGENCY: Federal Aviation be directed to the FAA at: 800 Independence Administration (FAA), DOT. Document Management Facility, U.S. Department of Transportation, Docket Ave., SW., Washington, DC 20591, Attn: ACTION: Final rule. Information Collection Clearance Officer, Operations, M–30, West Building AES–200. SUMMARY: We are superseding an Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, Related Information existing airworthiness directive (AD) for the products listed above. That AD DC 20590. (h) Refer to MCAI AGEˆ NCIA NACIONAL FOR FURTHER INFORMATION CONTACT: DE AVIAC¸A˜ O CIVIL—BRAZIL (ANAC) AD currently requires repetitive high No. 2010–08–01, dated September 3, 2010; frequency eddy current inspections to Wahib Mina, Aerospace Engineer, and EMBRAER Phenom Service Bulletin detect cracking in the vertical radius Airframe Branch, ANM–120L, FAA, Los 500–21–0001, dated December 9, 2009, for (also known as the ‘‘vertical leg’’) of the Angeles Aircraft Certification Office, related information. upper cap of the center wing rear spar, 3960 Paramount Boulevard, Lakewood, Material Incorporated by Reference and repair if necessary. This new AD California 90712–4137; telephone (562) expands the area to be inspected by 627–5324; fax (562) 627–5210. (i) You must use EMBRAER Phenom including inspections to detect cracking Service Bulletin 500–21–0001, dated SUPPLEMENTARY INFORMATION: of the horizontal flange of the upper cap December 9, 2009, to do the actions required Discussion by this AD, unless the AD specifies of the left and right center wing rear otherwise. spar, and repair if necessary. This new We issued a notice of proposed (1) The Director of the Federal Register AD also adds certain airplanes to the rulemaking (NPRM) to amend 14 CFR approved the incorporation by reference of applicability. This AD was prompted by part 39 to supersede airworthiness

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directive (AD) 2004–23–11, Amendment necessary. In addition, that NPRM changes. We have determined that these 39–13866 (69 FR 65522, November 15, proposed to add certain airplanes to the minor changes: 2004). That AD applies to the specified applicability. • Are consistent with the intent that products. The NPRM was published in was proposed in the NPRM for the Federal Register on August 5, 2010 Comments correcting the unsafe condition; and • (75 FR 47242). That NPRM proposed to We gave the public the opportunity to Do not add any additional burden continue to require repetitive high participate in developing this AD. We upon the public than was already frequency eddy current inspections to received no comments on the NPRM or proposed in the NPRM. detect cracks in the vertical radius (also known as the ‘‘vertical leg’’) of the upper on the determination of the cost to the Costs of Compliance cap of the center wing rear spar, and public. There are approximately 510 repair if necessary. That NPRM also Conclusion airplanes of the affected design in the proposed to expand the area to be worldwide fleet. We estimate that 322 inspected by including inspections to We reviewed the relevant data and airplanes of U.S. registry will be affected detect cracking of the horizontal flange determined that air safety and the by this AD. The following table provides of the upper cap of the left and right public interest require adopting the AD the estimated costs for U.S. operators to center wing rear spar, and repair if as proposed, except for minor editorial comply with this AD.

ESTIMATED COSTS

Average Number of Action Work hours labor rate per Parts Cost per airplane U.S.- Fleet cost registered hour airplanes

Inspection ...... 3 $85 $0 $255 per inspection 322 $82,110 per inspection cycle. cycle.

Authority for This Rulemaking (2) Is not a ‘‘significant rule’’ under Effective Date DOT Regulatory Policies and Procedures Title 49 of the United States Code (a) This airworthiness directive (AD) is (44 FR 11034, February 26, 1979), effective December 14, 2010. specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, (3) Will not affect intrastate aviation Affected ADs Section 106, describes the authority of in Alaska, and (b) This AD supersedes AD 2004–23–11, the FAA Administrator. Subtitle VII, (4) Will not have a significant Amendment 39–13866. Aviation Programs, describes in more economic impact, positive or negative, Applicability detail the scope of the Agency’s on a substantial number of small entities authority. under the criteria of the Regulatory (c) This AD applies to McDonnell Douglas Flexibility Act. Corporation Model DC–9–14, DC–9–15, DC– We are issuing this rulemaking under 9–15F, DC–9–21, DC–9–31, DC–9–32, DC–9– the authority described in Subtitle VII, List of Subjects in 14 CFR Part 39 32 (VC–9C), DC–9–32F, DC–9–33F, DC–9–34, Part A, Subpart III, Section 44701, DC–9–34F, DC–9–32F (C–9A, C–9B), DC–9– ‘‘General requirements.’’ Under that Air transportation, Aircraft, Aviation 41, and DC–9–51 airplanes; certificated in section, Congress charges the FAA with safety, Incorporation by reference, any category; as identified in Boeing Service promoting safe flight of civil aircraft in Safety. Bulletin DC9–57–223, Revision 1, dated air commerce by prescribing regulations August 13, 2009. Adoption of the Amendment for practices, methods, and procedures Subject the Administrator finds necessary for ■ Accordingly, under the authority safety in air commerce. This regulation (d) Air Transport Association (ATA) of delegated to me by the Administrator, America Code 57: Wings. is within the scope of that authority the FAA amends 14 CFR part 39 as Unsafe Condition because it addresses an unsafe condition follows: that is likely to exist or develop on (e) This AD results from reports of cracking products identified in this rulemaking PART 39—AIRWORTHINESS in the vertical radius (also known as the action. DIRECTIVES ‘‘vertical leg’’) of the upper cap of the center wing rear spar, and the horizontal flange on Regulatory Findings ■ 1. The authority citation for part 39 the inboard side of the rear spar upper cap, We have determined that this AD will continues to read as follows: which resulted from stress corrosion. The not have federalism implications under Federal Aviation Administration is issuing Authority: 49 U.S.C. 106(g), 40113, 44701. this AD to detect and correct cracking in the Executive Order 13132. This AD will vertical leg or the horizontal flange of the § 39.13 [Amended] not have a substantial direct effect on upper cap of the left or right center wing rear the States, on the relationship between ■ 2. The FAA amends § 39.13 by spar, which could cause a possible fuel leak, the national government and the States, removing airworthiness directive (AD) damage to the wing skin, and structural or on the distribution of power and 2004–23–11, Amendment 39–13866 (69 failure of the upper cap, and result in responsibilities among the various FR 65522, November 15, 2004), and reduced structural integrity of the airplane. levels of government. adding the following new AD: Compliance For the reasons discussed above, I 2010–23–10 McDonnell Douglas (f) You are responsible for having the certify that this AD: Corporation: Amendment 39–16499; actions required by this AD performed within (1) Is not a ‘‘significant regulatory Docket No. FAA–2010–0705; Directorate the compliance times specified, unless the action’’ under Executive Order 12866, Identifier 2009–NM–206–AD. actions have already been done.

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Restatement of Requirements of AD 2004– Alternative Methods of Compliance Issued in Renton, Washington, on October 23–11, With Revised Service Information (AMOCs) 21, 2010. Inspection (k)(1) The Manager, Los Angeles ACO, Michael Kaszycki, Acting Manager, Transport Airplane (g) For all airplanes except Model DC–9– FAA, has the authority to approve AMOCs Directorate, Aircraft Certification Service. 15F airplanes, at the later of the times for this AD, if requested using the procedures specified in paragraphs (g)(1) and (g)(2) of found in 14 CFR 39.19. Send information to [FR Doc. 2010–28084 Filed 11–8–10; 8:45 am] this AD: Do a high frequency eddy current ATTN: Wahib Mina, Aerospace Engineer, BILLING CODE 4910–13–P inspection to detect cracks in the vertical Airframe Branch, ANM–120L, Los Angeles radius of the upper cap of the center wing ACO, FAA, 3960 Paramount Boulevard, rear spar, in accordance with the Lakewood, California 90712–4137; telephone DEPARTMENT OF TRANSPORTATION Accomplishment Instructions of Boeing (562) 627–5324; fax (562) 627–5210. Service Bulletin DC9–57–223, dated July 21, (2) To request a different method of Federal Aviation Administration 2003; or Revision 1, dated August 13, 2009. compliance or a different compliance time After the effective date of this AD, only for this AD, follow the procedures in 14 CFR 14 CFR Part 39 Revision 1 may be used. 39.19. Before using any approved AMOC on (1) Before the accumulation of 25,000 total [Docket No. FAA–2010–0483; Directorate any airplane to which the AMOC applies, flight cycles. Identifier 2010–NM–065–AD; Amendment (2) Within 15,000 flight cycles or 5 years notify your principal maintenance inspector 39–16502; AD 2010–23–13] after December 20, 2004 (the effective date of (PMI) or principal avionics inspector (PAI), RIN 2120–AA64 AD 2004–23–11), whichever occurs first. as appropriate, or lacking a principal inspector, your local Flight Standards District Corrective Action Office. The AMOC approval letter must Airworthiness Directives; The Boeing (h)(1) If no crack is found during any specifically refer to this AD. Company Model 757 Airplanes inspection required by paragraph (g) of this (3) An AMOC that provides an acceptable AGENCY: Federal Aviation AD, then repeat the inspection thereafter at level of safety may be used for any repair Administration (FAA), DOT. intervals not to exceed 15,000 flight cycles or required by this AD if it is approved by the ACTION: Final rule. 5 years, whichever occurs first, until the Boeing Commercial Airplanes Organization initial inspection required by paragraph (i) of Designation Authorization (ODA) that has this AD is done. SUMMARY: We are adopting a new been authorized by the Manager, Los Angeles (2) If any crack is found during the airworthiness directive (AD) for all inspection required by paragraph (g) of this ACO, to make those findings. For a repair Model 757 airplanes. This AD requires AD, before further flight, repair per a method method to be approved, the repair must meet changing the lower fixed leading edge approved by the Manager, Los Angeles the certification basis of the airplane, and the panel assemblies immediately outboard Aircraft Certification Office (ACO), FAA. For approval must specifically refer to this AD. of the nacelles at slats 4 and 7. This AD a repair method to be approved by the (4) AMOCs approved previously in results from reports of Model 757 Manager, Los Angeles ACO, as required by accordance with AD 2004–23–11, airplanes in service that have drain this paragraph, the Manager’s approval letter Amendment 39–13866, are approved as holes and unsealed panel assemblies in must specifically refer to this AD. AMOCs for the corresponding provisions of the fixed leading edge adjacent to the paragraph (h)(2) of this AD. New Requirements of This AD inboard end of slats 4 and 7 that are too Inspection Material Incorporated by Reference close to the hot portion of the engines. (i) At the later of the times specified in (l) You must use Boeing Service Bulletin We are issuing this AD to prevent fuel paragraphs (i)(1) and (i)(2) of this AD: Do a DC9–57–223, Revision 1, dated August 13, leaking onto an engine and a consequent high frequency eddy current inspection to 2009, to do the actions required by this AD, fire. detect cracking in the vertical leg (also unless the AD specifies otherwise. DATES: This AD is effective December known as the ‘‘vertical radius’’) and (1) The Director of the Federal Register 14, 2010. horizontal flange of the left and right rear approved the incorporation by reference of The Director of the Federal Register spar upper cap, inboard and outboard sides, this service information under 5 U.S.C. approved the incorporation by reference at the bulkhead at wing station Xcw=58.500, 552(a) and 1 CFR part 51. of a certain publication listed in the AD in accordance with the Accomplishment (2) For service information identified in as of December 14, 2010. Instructions of Boeing Service Bulletin DC9– this AD, contact Boeing Commercial 57–223, Revision 1, dated August 13, 2009. ADDRESSES: For service information Airplanes, Attention: Data & Services If no cracking is found, repeat the inspection identified in this AD, contact Boeing Management, 3855 Lakewood Boulevard, MC thereafter at intervals not to exceed 15,000 D800–0019, Long Beach, California 90846– Commercial Airplanes, Attention: Data flight cycles or 5 years, whichever occurs & Services Management, P.O. Box 3707, first. Accomplishment of the initial 0001; telephone 206–544–5000, extension 2; fax 206–766–5683; e-mail MC 2H–65, Seattle, Washington 98124– inspection required by paragraph (i) of this 2207; telephone 206–544–5000, AD terminates the requirements of [email protected]; Internet https:// extension 1; fax 206–766–5680; e-mail paragraphs (g) and (h)(1) of this AD. www.myboeingfleet.com. (1) Before the accumulation of 25,000 total (3) You may review copies of the service [email protected]; Internet flight cycles. information at the FAA, 1601 Lind Avenue, https://www.myboeingfleet.com. (2) Within 15,000 flight cycles or 5 years SW., Renton, Washington. For information Examining the AD Docket after accomplishing the most recent high on the availability of this material at the frequency eddy current inspection required FAA, call 425–227–1221. You may examine the AD docket on by paragraph (g) of this AD, whichever (4) You may also review copies of the the Internet at http:// occurs first. service information that is incorporated by www.regulations.gov; or in person at the Corrective Action reference at the National Archives and Docket Management Facility between 9 a.m. and 5 p.m., Monday through (j) If any cracking is found during any Records Administration (NARA). For inspection required by paragraph (i) of this information on the availability of this Friday, except Federal holidays. The AD AD, before further flight, repair the cracking material at an NARA facility, call 202–741– docket contains this AD, the regulatory using a method approved in accordance with 6030, or go to http://www.archives.gov/ evaluation, any comments received, and the procedures specified in paragraph (k) of federal_register/code_of_federal_regulations/ other information. The address for the this AD. ibr_locations.html. Docket Office (telephone 800–647–5527)

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is the Document Management Facility, with the change described previously. List of Subjects in 14 CFR Part 39 U.S. Department of Transportation, We also determined that this change Air transportation, Aircraft, Aviation Docket Operations, M–30, West will not increase the economic burden safety, Incorporation by reference, Building Ground Floor, Room W12–140, on any operator or increase the scope of Safety. 1200 New Jersey Avenue, SE., the AD. Washington, DC 20590. Adoption of the Amendment Costs of Compliance FOR FURTHER INFORMATION CONTACT: ■ Accordingly, under the authority Tak Kobayashi, Aerospace Engineer, We estimate that this AD affects 697 delegated to me by the Administrator, Propulsion Branch, ANM–140S, FAA, airplanes of U.S. registry. We also the FAA amends 14 CFR part 39 as Seattle Aircraft Certification Office, estimate that it takes 9 work-hours per follows: 1601 Lind Avenue, SW., Renton, product to comply with this AD. The Washington 98057–3356; telephone average labor rate is $85 per work-hour. PART 39—AIRWORTHINESS (425) 917–6499; fax (425) 917–6590. Based on these figures, we estimate the DIRECTIVES SUPPLEMENTARY INFORMATION cost of this AD to the U.S. operators to : ■ 1. The authority citation for part 39 be $533,205, or $765 per product. Discussion continues to read as follows: We issued a notice of proposed Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. rulemaking (NPRM) to amend 14 CFR Title 49 of the United States Code § 39.13 [Amended] part 39 to include an airworthiness specifies the FAA’s authority to issue ■ 2. The FAA amends § 39.13 by adding directive (AD) that would apply to all rules on aviation safety. Subtitle I, the following new airworthiness Model 757 airplanes. That NPRM was section 106, describes the authority of directive (AD): published in the Federal Register on the FAA Administrator. ‘‘Subtitle VII: June 3, 2010 (75 FR 31329). That NPRM Aviation Programs,’’ describes in more 2010–23–13 The Boeing Company: proposed to require changing the lower detail the scope of the Agency’s Amendment 39–16502. Docket No. fixed leading edge panel assemblies authority. FAA–2010–0483; Directorate Identifier immediately outboard of the nacelles at 2010–NM–065–AD. slats 4 and 7. We are issuing this rulemaking under the authority described in ‘‘Subtitle VII, Effective Date Comments Part A, Subpart III, Section 44701: (a) This AD is effective December 14, 2010. We gave the public the opportunity to General requirements.’’ Under that Affected ADs participate in developing this AD. We section, Congress charges the FAA with (b) None. considered the comments received from promoting safe flight of civil aircraft in Applicability the commenters. air commerce by prescribing regulations for practices, methods, and procedures (c) This AD applies to all The Boeing Support for Proposed AD the Administrator finds necessary for Company Model 757–200, –200PF, –200CB, Boeing concurred with the contents of safety in air commerce. This regulation and –300 series airplanes, certificated in any the proposed AD. FedEx, Continental is within the scope of that authority category. Airlines, and American Airlines had no because it addresses an unsafe condition Subject technical objection to changing the that is likely to exist or develop on (d) Air Transport Association (ATA) of lower fixed leading edge panel products identified in this rulemaking America Code 57: Wings. assemblies immediately outboard of the action. Unsafe Condition nacelles at slats 4 and 7, as specified in Regulatory Findings the proposed AD. (e) This AD results from reports of Model 757 airplanes in service that have drain holes Request To Correct Part Number of This AD will not have federalism and unsealed panel assemblies in the fixed Washer implications under Executive Order leading edge adjacent to the inboard end of 13132. This AD will not have a slats 4 and 7 that are too close to the hot FedEx, Continental Airlines, and substantial direct effect on the States, on portion of the engines. The Federal Aviation American Airlines requested that we the relationship between the national Administration is issuing this AD to prevent correct the part number of a washer government and the States, or on the fuel leaking onto an engine and a consequent used in Figures 1 and 4 of Boeing distribution of power and fire. Special Attention Service Bulletin 757– responsibilities among the various Compliance 57–0070, dated January 27, 2010. The levels of government. commenters stated that Boeing Service (f) You are responsible for having the Bulletin Information Notice 757–57– For the reasons discussed above, I actions required by this AD performed within certify that this AD: the compliance times specified, unless the 0070 IN 01, dated March 17, 2010, actions have already been done. corrects the part number of the washer, (1) Is not a ‘‘significant regulatory and that by including this correct part action’’ under Executive Order 12866, Action number in the proposed AD, requests (2) Is not a ‘‘significant rule’’ under (g) Within 60 months after the effective for alternative methods of compliance DOT Regulatory Policies and Procedures date of this AD, change the lower fixed (AMOC) will be reduced. (44 FR 11034, February 26, 1979), and leading edge panel assemblies immediately We agree with the request as stated. outboard of the nacelles at slats 4 and 7, in (3) Will not have a significant We have added the correct part number accordance with the Accomplishment economic impact, positive or negative, Instructions of Boeing Special Attention to paragraph (g) of this AD. on a substantial number of small entities Service Bulletin 757–57–0070, dated January Conclusion under the criteria of the Regulatory 27, 2010; except, where the service bulletin Flexibility Act. specifies washer part number (P/N) We reviewed the relevant data, NAS11490632J for the modification of the considered the comments received, and You can find our regulatory lower fixed leading edge panel assemblies, determined that air safety and the evaluation and the estimated costs of this AD requires installation of P/N public interest require adopting the AD compliance in the AD Docket. NAS1149D0632J.

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Alternative Methods of Compliance DEPARTMENT OF TRANSPORTATION Engineer, Airframe and Mechanical (AMOCs) Systems Branch, ANE–171, FAA, New (h)(1) The Manager, Seattle Aircraft Federal Aviation Administration York Aircraft Certification Office, 1600 Certification Office (ACO), FAA, has the Stewart Avenue, Suite 410, Westbury, authority to approve AMOCs for this AD, if 14 CFR Part 39 New York 11590; telephone (516) 228– requested using the procedures found in 14 [Docket No. FAA–2010–0548; Directorate 7340; fax (516) 794–5531. CFR 39.19. Send information to ATTN: Tak Identifier 2010–NM–041–AD; Amendment SUPPLEMENTARY INFORMATION: Kobayashi, Aerospace Engineer, Propulsion 39–16497; AD 2010–23–08] Branch, ANM–140S, FAA, Seattle Aircraft Discussion RIN 2120–AA64 Certification Office, 1601 Lind Avenue, SW., We issued a notice of proposed Renton, Washington 98057–3356; telephone Airworthiness Directives; Bombardier, rulemaking (NPRM) to amend 14 CFR (425) 917–6499; fax (425) 917–6590. Inc. Model BD–700–1A10 and BD–700– part 39 to include an AD that would Information may be e-mailed to: 9-ANM- 1A11 Airplanes apply to the specified products. That [email protected]. NPRM was published in the Federal (2) To request a different method of AGENCY: Federal Aviation Register on June 4, 2010 (75 FR 31731). compliance or a different compliance time Administration (FAA), Department of That NPRM proposed to correct an for this AD, follow the procedures in 14 CFR Transportation (DOT). unsafe condition for the specified 39.19. Before using any approved AMOC on ACTION: Final rule. products. The MCAI states: any airplane to which the AMOC applies, Following five reported cases of balance notify your principal maintenance inspector SUMMARY: We are adopting a new washer screw failure on similar RATs [ram (PMI) or principal avionics inspector (PAI), airworthiness directive (AD) for the air turbine]/air driven generators installed on as appropriate, or lacking a principal products listed above. This AD results other aircraft types, an investigation by inspector, your local Flight Standards District from mandatory continuing Hamilton Sundstrand determined that a Office. The AMOC approval letter must airworthiness information (MCAI) specific batch of the screws had a specifically reference this AD. originated by an aviation authority of metallographic non-conformity that increased their susceptibility to brittle Material Incorporated by Reference another country to identify and correct an unsafe condition on an aviation fracture. Subsequently, it was established (i) You must use Boeing Special Attention that 187 RATs [Part Number (P/N) GL456– product. The MCAI describes the unsafe 1101–7 and Hamilton Sundstrand P/Ns in the Service Bulletin 757–57–0070, dated January condition as: 27, 2010, to do the actions required by this 762826 series] had non-conforming screws installed either during production or possibly AD, unless the AD specifies otherwise. Following five reported cases of balance during maintenance or repair at Hamilton (1) The Director of the Federal Register washer screw failure on similar RATs [ram air turbines]/air driven generators installed Sundstrand repair stations. approved the incorporation by reference of on other aircraft types, an investigation Failure of a balance washer screw can this service information under 5 U.S.C. * * * determined that a specific batch of the result in loss of the related balance washer, 552(a) and 1 CFR part 51. screws had a metallographic non-conformity with consequent turbine imbalance. Such (2) For service information identified in that increased their susceptibility to brittle imbalance could potentially result in RAT this AD, contact Boeing Commercial fracture. * * * structural failure (including blade failure), Airplanes, Attention: Data & Services Failure of a balance washer screw can loss of RAT electrical power and structural Management, P.O. Box 3707, MC 2H–65, result in loss of the related balance washer, damage to the aircraft and, if deployment was Seattle, Washington 98124–2207; telephone with consequent turbine imbalance. Such activated by a dual engine shutdown, could 206–544–5000, extension 1; fax 206–766– imbalance could potentially result in RAT also result in loss of hydraulic power for the flight controls [and consequent reduced 5680; e-mail [email protected]; structural failure (including blade failure), ability of the flightcrew to maintain the safe Internet https://www.myboeingfleet.com. loss of RAT electrical power and structural damage to the aircraft and, if deployment was flight and landing of the airplane]. (3) You may review copies of the service activated by a dual engine shutdown, could This [Canadian] directive mandates information at the FAA, Transport Airplane also result in loss of hydraulic power for the checking of the RAT and replacing the Directorate, 1601 Lind Avenue, SW., Renton, flight controls [and consequent reduced balance washer screws, if required. It also Washington. For information on the ability of the flightcrew to maintain the safe prohibits future installation of unmodified availability of this material at the FAA, call flight and landing of the airplane]. RATs. 425–227–1221. * * * * * You may obtain further information by (4) You may also review copies of the examining the MCAI in the AD docket. service information that is incorporated by We are issuing this AD to require reference at the National Archives and actions to correct the unsafe condition Actions Since NPRM Was Issued on these products. Records Administration (NARA). For We have determined that this AD information on the availability of this DATES: This AD becomes effective should refer to the latest service material at NARA, call 202–741–6030, or go December 14, 2010. information. We have reviewed _ to: http://www.archives.gov/federal register/ The Director of the Federal Register Bombardier Service Bulletin 700–1A11– _ _ _ _ code of federal regulations/ibr locations. approved the incorporation by reference 24–014, Revision 02, dated March 15, html. of certain publications listed in this AD 2010; and Bombardier Service Bulletin Issued in Renton, Washington, on October as of December 14, 2010. 700–24–075, Revision 02, dated March 23, 2010. ADDRESSES: You may examine the AD 15, 2010; which introduce minor Michael Kaszycki, docket on the Internet at http:// changes, but do not add any additional www.regulations.gov or in person at the work. We have revised this final rule to Acting Manager, Transport Airplane U.S. Department of Transportation, Directorate, Aircraft Certification Service. include the latest version of the Docket Operations, M–30, West applicable Bombardier service [FR Doc. 2010–28160 Filed 11–8–10; 8:45 am] Building Ground Floor, Room W12–140, information and to provide credit for BILLING CODE 4910–13–P 1200 New Jersey Avenue, SE., work done before the effective date of Washington, DC. this AD, in accordance with the FOR FURTHER INFORMATION CONTACT: previous revisions of the service Christopher Alfano, Aerospace information.

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Comments products identified in this rulemaking Effective Date We gave the public the opportunity to action. (a) This airworthiness directive (AD) participate in developing this AD. We Regulatory Findings becomes effective December 14, 2010. received no comments on the NPRM or Affected ADs We determined that this AD will not on the determination of the cost to the (b) None. public. have federalism implications under Executive Order 13132. This AD will Applicability Conclusion not have a substantial direct effect on (c) This AD applies to Bombardier, Inc. We reviewed the available data and the States, on the relationship between Model BD–700–1A10 and BD–700–1A11 determined that air safety and the the national government and the States, airplanes, serial numbers 9002 and public interest require adopting the AD or on the distribution of power and subsequent; certificated in any category. with the changes described previously. responsibilities among the various Subject We determined that these changes will levels of government. not increase the economic burden on For the reasons discussed above, I (d) Air Transport Association (ATA) of any operator or increase the scope of the certify this AD: America Code 24: Electrical power. AD. 1. Is not a ‘‘significant regulatory Reason ’’ Differences Between This AD and the action under Executive Order 12866; (e) The mandatory continuing MCAI or Service Information 2. Is not a ‘‘significant rule’’ under the airworthiness information (MCAI) states: DOT Regulatory Policies and Procedures Following five reported cases of balance We have reviewed the MCAI and (44 FR 11034, February 26, 1979); and washer screw failure on similar RATs [ram related service information and, in 3. Will not have a significant air turbines]/air driven generators installed general, agree with their substance. But economic impact, positive or negative, on other aircraft types, an investigation by we might have found it necessary to use on a substantial number of small entities Hamilton Sundstrand determined that a specific batch of the screws had a different words from those in the MCAI under the criteria of the Regulatory metallographic non-conformity that to ensure the AD is clear for U.S. Flexibility Act. operators and is enforceable. In making increased their susceptibility to brittle We prepared a regulatory evaluation these changes, we do not intend to differ fracture. Subsequently, it was established of the estimated costs to comply with substantively from the information that 187 RATs [Part Number (P/N) GL456– this AD and placed it in the AD docket. provided in the MCAI and related 1101–7 and Hamilton Sundstrand P/Ns in the 762826 series] had non-conforming screws service information. Examining the AD Docket installed either during production or possibly We might also have required different You may examine the AD docket on during maintenance or repair at Hamilton actions in this AD from those in the the Internet at http:// Sundstrand repair stations. MCAI in order to follow our FAA www.regulations.gov; or in person at the Failure of a balance washer screw can policies. Any such differences are Docket Operations office between 9 a.m. result in loss of the related balance washer, highlighted in a NOTE within the AD. and 5 p.m., Monday through Friday, with consequent turbine imbalance. Such imbalance could potentially result in RAT Costs of Compliance except Federal holidays. The AD docket structural failure (including blade failure), We estimate that this AD will affect contains the NPRM, the regulatory loss of RAT electrical power and structural 115 products of U.S. registry. We also evaluation, any comments received, and damage to the aircraft and, if deployment was estimate that it will take about 1 work- other information. The street address for activated by a dual engine shutdown, could hour per product to comply with the the Docket Operations office (telephone also result in loss of hydraulic power for the basic requirements of this AD. The (800) 647–5527) is in the ADDRESSES flight controls [and consequent reduced average labor rate is $85 per work-hour. section. Comments will be available in ability of the flightcrew to maintain the safe the AD docket shortly after receipt. flight and landing of the airplane]. Based on these figures, we estimate the This [Canadian] directive mandates cost of this AD to the U.S. operators to List of Subjects in 14 CFR Part 39 checking of the RAT and replacing the be $9,775, or $85 per product. balance washer screws, if required. It also Air transportation, Aircraft, Aviation Authority for This Rulemaking prohibits future installation of unmodified safety, Incorporation by reference, RATs. Title 49 of the United States Code Safety. Compliance specifies the FAA’s authority to issue Adoption of the Amendment rules on aviation safety. Subtitle I, (f) You are responsible for having the section 106, describes the authority of ■ Accordingly, under the authority actions required by this AD performed within the FAA Administrator. ‘‘Subtitle VII: delegated to me by the Administrator, the compliance times specified, unless the Aviation Programs’’ describes in more the FAA amends 14 CFR part 39 as actions have already been done. detail the scope of the Agency’s follows: Inspection authority. (g) For airplanes having serial numbers We are issuing this rulemaking under PART 39—AIRWORTHINESS 9002 through 9380 inclusive: At the earliest the authority described in ‘‘Subtitle VII, DIRECTIVES of the times identified in paragraphs (g)(1), (g)(2), (g)(3) and (g)(4) of this AD, inspect to Part A, Subpart III, Section 44701: ■ General requirements.’’ Under that 1. The authority citation for part 39 determine the serial number of the installed section, Congress charges the FAA with continues to read as follows: ram air turbine (RAT), in accordance with the promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. Accomplishment Instructions of the applicable service bulletin listed in Table 1 air commerce by prescribing regulations § 39.13 [Amended] for practices, methods, and procedures of this AD. This inspection may be ■ 2. The FAA amends § 39.13 by adding conducted visually, which requires lowering the Administrator finds necessary for the RAT. A review of airplane maintenance safety in air commerce. This regulation the following new AD: records is acceptable in lieu of this is within the scope of that authority 2010–23–08 Bombardier, Inc.: Amendment inspection if the serial number of the RAT because it addresses an unsafe condition 39–16497. Docket No. FAA–2010–0548; can be conclusively determined from that that is likely to exist or develop on Directorate Identifier 2010–NM–041–AD. review.

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(1) Within 500 flight hours or 24 months (3) Prior to the next in-flight or on-ground (h) If the RAT serial number, as determined after the effective date of this AD, whichever operational test of the RAT, whichever in paragraph (g) of this AD, is not listed in occurs first; or occurs first after the effective date of this AD; paragraph 1.A of the applicable service (2) Prior to the next in-flight or on-ground or bulletin listed in Table 1 of this AD, no functional test of the RAT, whichever occurs (4) Prior to the next scheduled RAT in- further action is required by this AD, except first after the effective date of this AD; or flight deployment. as required by paragraph (j) of this AD.

TABLE 1—SERVICE BULLETINS

Model— Bombardier Service Bulletin— Revision— Dated—

BD–700–1A11 ...... 700–1A11–24–014 ...... 02 March 15, 2010. BD–700–1A10 ...... 700–24–075 ...... 02 March 15, 2010.

(i) If the RAT serial number, determined in further action is required by this AD, except listed in paragraph 1.A. of the applicable paragraph (g) of this AD, is listed in as required by paragraph (j) of this AD. service bulletin listed in Table 1 of this AD paragraph 1.A. of the applicable service (2) If the symbol ‘‘24–7’’ is not marked on unless the balance washer screws have bulletin listed in Table 1 of this AD, before the RAT identification plate, before further already been replaced and the symbol further flight, inspect to determine if the flight, replace all balance washer screws with ‘‘24–7’’ is marked on the RAT identification symbol ‘‘24–7’’ is marked on the RAT new balance washer screws, part number plate. identification plate, in accordance with the MS24667–14, and mark the RAT Accomplishment Instructions of the identification plate with the symbol ‘‘24–7,’’ Credit for Actions Accomplished in applicable service bulletin listed in Table 1 in accordance with the Accomplishment Accordance With Previous Service of this AD. A review of airplane maintenance Instructions of the applicable service bulletin Information records is acceptable in lieu of this listed in Table 1 of this AD. (k) Actions accomplished before the inspection if the symbol ‘‘24–7’’ mark can be (j) For all airplanes: As of the effective date effective date of this AD, in accordance with conclusively determined from that review. of this AD, no person may install on any the applicable service bulletin listed in (1) If the symbol ‘‘24–7’’ is marked on the airplane a replacement or spare RAT (P/N Table 2 of this AD, are considered acceptable RAT identification plate, the balance washer GL456–1101–7; Hamilton Sundstrand P/Ns for compliance with the corresponding action screws have already been replaced and no in the 762826 series) having one of the S/Ns specified in this AD.

TABLE 2—CREDIT SERVICE BULLETINS

Model— Bombardier Service Bulletin— Revision— Dated—

BD–700–1A11 ...... 700–1A11–24–014 ...... 01 July 15, 2009. BD–700–1A10 ...... 700–24–075 ...... 01 July 15, 2009.

FAA AD Differences as appropriate, or lacking a principal March 15, 2010; or Bombardier Service inspector, your local Flight Standards District Bulletin 700–1A11–24–014, Revision 02, Note 1: This AD differs from the MCAI Office. The AMOC approval letter must dated March 15, 2010; as applicable; to do and/or service information as follows: specifically reference this AD. Although Canadian Airworthiness Directive the actions required by this AD, unless the (2) Airworthy Product: For any requirement AD specifies otherwise. CF–2010–01, dated January 18, 2010, in this AD to obtain corrective actions from (1) The Director of the Federal Register recommends accomplishing the visual a manufacturer or other source, use these inspection prior to the next scheduled in- actions if they are FAA-approved. Corrective approved the incorporation by reference of flight operational test of the RAT, we have actions are considered FAA-approved if they this service information under 5 U.S.C. determined that interval would not address are approved by the State of Design Authority 552(a) and 1 CFR part 51. the identified unsafe condition soon enough (or their delegated agent). You are required (2) For service information identified in to ensure an adequate level of safety for the to assure the product is airworthy before it this AD, contact Bombardier, Inc., 400 Coˆte- affected fleet in light of the degree of urgency is returned to service. Vertu Road West, Dorval, Que´bec H4S 1Y9, associated with the subject unsafe condition. (3) Reporting Requirements: For any Canada; telephone 514–855–5000; fax This difference has been coordinated with reporting requirement in this AD, under the Transport Canada Civil Aviation (TCCA). 514–855–7401; e-mail provisions of the Paperwork Reduction Act [email protected]; Internet http:// Other FAA AD Provisions (44 U.S.C. 3501 et seq.), the Office of www.bombardier.com. Management and Budget (OMB) has (3) You may review copies of the service (l) The following provisions also apply to approved the information collection this AD: requirements and has assigned OMB Control information at the FAA, Transport Airplane (1) Alternative Methods of Compliance Number 2120–0056. Directorate, 1601 Lind Avenue, SW., Renton, (AMOCs): The Manager, New York Aircraft Washington. For information on the Certification Office (ACO), ANE–170, FAA, Related Information availability of this material at the FAA, call has the authority to approve AMOCs for this (m) Refer to MCAI TCCA Airworthiness 425–227–1221. AD, if requested using the procedures found Directive CF–2010–01, dated January 18, (4) You may also review copies of the in 14 CFR 39.19. Send information to ATTN: 2010; and Bombardier Service Bulletins service information that is incorporated by Program Manager, Continuing Operational 700–24–075, Revision 02, dated March 15, reference at the National Archives and Safety, FAA, New York ACO, 1600 Stewart 2010, and 700–1A11–24–014, Revision 02, Records Administration (NARA). For Avenue, Suite 410, Westbury, New York, dated March 15, 2010; for related information on the availability of this 11590; telephone 516–228–7300; fax 516– information. 794–5531. Before using any approved AMOC material at NARA, call 202–741–6030, or go on any airplane to which the AMOC applies, Material Incorporated by Reference to: http://www.archives.gov/federal_register/ notify your principal maintenance inspector (n) You must use Bombardier Service code_of_federal_regulations/ (PMI) or principal avionics inspector (PAI), Bulletins 700–24–075, Revision 02, dated ibr_locations.html.

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Issued in Renton, Washington on October • Federal eRulemaking Portal: Go to some MSN, and a partial inspection for MSN 21, 2010. http://www.regulations.gov. Follow the 15, 20 and 22. This partial inspection has Michael Kaszycki, instructions for submitting comments. now been assessed to be insufficient to cover Acting Manager, Transport Airplane • Fax: (202) 493–2251. the unsafe condition. Directorate, Aircraft Certification Service. • Mail: U.S. Department of This [EASA] AD, which supersedes EASA Transportation, Docket Operations, AD 2009–0066, requires to perform: [FR Doc. 2010–28174 Filed 11–8–10; 8:45 am] • An additional inspection on MSN 15, 20 BILLING CODE 4910–13–P M–30, West Building Ground Floor, and 22 to render it complete, and Room W12–140, 1200 New Jersey • A complete inspection on additional Avenue, SE., Washington, DC 20590. MSN. DEPARTMENT OF TRANSPORTATION • Hand Delivery: U.S. Department of Transportation, Docket Operations, Nonconforming installation or a failure Federal Aviation Administration M–30, West Building Ground Floor, of the OHDS could allow undetected Room W12–40, 1200 New Jersey leakage of bleed air from the hot engine/ 14 CFR Part 39 Avenue, SE., Washington, DC, between auxiliary power unit causing damage to [Docket No. FAA–2010–1102; Directorate 9 a.m. and 5 p.m., Monday through the airplane structure and various Identifier 2010–NM–016–AD; Amendment Friday, except Federal holidays. airplane components and systems. You 39–16507; AD 2010–23–18] Examining the AD Docket may obtain further information by examining the MCAI in the AD docket. RIN 2120–AA64 You may examine the AD docket on Relevant Service Information Airworthiness Directives; Airbus Model the Internet at http:// A380–800 Series Airplanes www.regulations.gov; or in person at the Airbus has issued Mandatory Service Docket Operations office between 9 a.m. Bulletin A380–36–8009, including AGENCY: Federal Aviation and 5 p.m., Monday through Friday, Service Bulletin Report Sheet, dated Administration (FAA), Department of except Federal holidays. The AD docket December 7, 2009. The actions Transportation (DOT). contains this AD, the regulatory described in this service information are ACTION: Final rule; request for evaluation, any comments received, and intended to correct the unsafe condition comments. other information. The street address for identified in the MCAI. the Docket Operations office (telephone SUMMARY: We are adopting a new (800) 647–5527) is in the ADDRESSES FAA’s Determination and Requirements airworthiness directive (AD) for the section. Comments will be available in of This AD products listed above. This AD results the AD docket shortly after receipt. from mandatory continuing This product has been approved by FOR FURTHER INFORMATION CONTACT: airworthiness information (MCAI) the aviation authority of another originated by an aviation authority of Todd Thompson, Aerospace Engineer, country, and is approved for operation another country to identify and correct Aerospace Engineer, International in the United States. Pursuant to our an unsafe condition on an aviation Branch, ANM–116, Transport Airplane bilateral agreement with the State of product. The MCAI describes the unsafe Directorate, FAA, 1601 Lind Avenue, Design Authority, we have been notified condition as: SW., Renton, Washington 98057–3356; of the unsafe condition described in the telephone (425) 227–1175; fax (425) MCAI and service information During inspection in production and on in- 227–1149. service aircraft, a number of OverHeat referenced above. We are issuing this Detection System (OHDS) installation non- SUPPLEMENTARY INFORMATION: AD because we evaluated all pertinent conformities have been identified along the Discussion information and determined the unsafe bleed air ducting. condition exists and is likely to exist or Some installation issues which may lead to The European Aviation Safety Agency develop on other products of the same a degraded leak detection capability have (EASA), which is the Technical Agent type design. been reported. In case of hot air leakage, the for the Member States of the European potential degradation of the OHDS would not There are no products of this type Community, has issued EASA currently registered in the United States. allow preventing damages to structure or Airworthiness Directive 2009–0265, components, and therefore could lead to an However, this rule is necessary to unsafe condition. dated December 16, 2009 (referred to ensure that the described unsafe after this as ‘‘the MCAI’’), to correct an condition is addressed if any of these * * * * * unsafe condition for the specified Nonconforming installation or a failure products are placed on the U.S. Register products. The MCAI states: of the OHDS could allow undetected in the future. leakage of bleed air from the hot engine/ During inspection in production and on in- service aircraft, a number of OverHeat Differences Between the AD and the auxiliary power unit causing damage to MCAI or Service Information the airplane structure and various Detection System (OHDS) installation non- airplane components and systems. This conformities have been identified along the We have reviewed the MCAI and bleed air ducting. AD requires actions that are intended to Some installation issues which may lead to related service information and, in address the unsafe condition described a degraded leak detection capability have general, agree with their substance. But in the MCAI. been reported. In case of hot air leakage, the we might have found it necessary to use DATES: This AD becomes effective potential degradation of the OHDS would not different words from those in the MCAI November 24, 2010. allow preventing damages to structure or to ensure the AD is clear for U.S. The Director of the Federal Register components, and therefore could lead to an operators and is enforceable. In making approved the incorporation by reference unsafe condition. these changes, we do not intend to differ of a certain publication listed in the AD To ensure that in-service aeroplanes are substantively from the information as of November 24, 2010. free of such non-conformities, EASA AD provided in the MCAI and related 2009–0066 required an inspection of the We must receive comments on this OHDS installation along the bleed air ducting service information. AD by December 27, 2010. and, in case of findings, to bring back the We might also have required different ADDRESSES: You may send comments by installation into the compliant configuration. actions in this AD from those in the any of the following methods: That AD required a complete inspection for MCAI in order to follow FAA policies.

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Any such differences are highlighted in or on the distribution of power and potential degradation of the OHDS would not a NOTE within the AD. responsibilities among the various allow preventing damages to structure or levels of government. components, and therefore could lead to an FAA’s Determination of the Effective For the reasons discussed above, I unsafe condition. Date certify this AD: * * * * * Since there are currently no domestic 1. Is not a ‘‘significant regulatory Nonconforming installation or a failure of the operators of this product, notice and action’’ under Executive Order 12866; OHDS could allow undetected leakage of opportunity for public comment before ‘‘ ’’ bleed air from the hot engine/auxiliary power 2. Is not a significant rule under the unit causing damage to the airplane structure issuing this AD are unnecessary. DOT Regulatory Policies and Procedures and various airplane components and Comments Invited (44 FR 11034, February 26, 1979); and systems. 3. Will not have a significant This AD is a final rule that involves economic impact, positive or negative, Compliance requirements affecting flight safety, and on a substantial number of small entities (f) You are responsible for having the we did not precede it by notice and under the criteria of the Regulatory actions required by this AD performed within opportunity for public comment. We Flexibility Act. the compliance times specified, unless the actions have already been done. invite you to send any written relevant We prepared a regulatory evaluation data, views, or arguments about this AD. of the estimated costs to comply with Inspection and Corrective Actions Send your comments to an address this AD and placed it in the AD docket. (g) Within 3 months after the effective date listed under the ADDRESSES section. of this AD: Do a one-time detailed visual Include ‘‘Docket No. FAA–2010–1102; List of Subjects in 14 CFR Part 39 inspection to ensure the correct installation Directorate Identifier 2010–NM–016– Air transportation, Aircraft, Aviation of the OHDS sensing elements and insulation AD’’ at the beginning of your comments. safety, Incorporation by reference, muffs, in accordance with the We specifically invite comments on the Safety. Accomplishment Instructions of Airbus overall regulatory, economic, Mandatory Service Bulletin A380–36–8009, Adoption of the Amendment including Service Bulletin Report Sheet, environmental, and energy aspects of dated December 7, 2009. this AD. We will consider all comments ■ Accordingly, under the authority (h) If, during any inspection required by received by the closing date and may delegated to me by the Administrator, paragraph (g) of this AD, any sensing element amend this AD because of those the FAA amends 14 CFR part 39 as or insulation muff is found to have been comments. follows: installed incorrectly, before further flight, We will post all comments we bring the installation into compliant receive, without change, to http:// PART 39—AIRWORTHINESS configuration, in accordance with Airbus www.regulations.gov, including any DIRECTIVES Mandatory Service Bulletin A380–36–8009, personal information you provide. We dated December 7, 2009. ■ (i) Submit a report of the findings (both will also post a report summarizing each 1. The authority citation for part 39 continues to read as follows: positive and negative) of the inspection substantive verbal contact we receive required by paragraph (g) of this AD to about this AD. Authority: 49 U.S.C. 106(g), 40113, 44701. Airbus, Customer Services Directorate, 1 Rond Point Maurice Bellonte, 31707 Blagnac § 39.13 [Amended] Authority for This Rulemaking Cedex, France; telephone +33 5 61 93 33 33; Title 49 of the United States Code ■ 2. The FAA amends § 39.13 by adding fax +33 5 61 93 28 06; e-mail specifies the FAA’s authority to issue the following new AD: [email protected]; Internet http:// rules on aviation safety. Subtitle I, www.airbus.com, at the applicable time 2010–23–18 Airbus: Amendment 39–16507. specified in paragraph (i)(1) or (i)(2) of this section 106, describes the authority of Docket No. FAA–2010–1102; Directorate ‘‘ AD. The report must include the inspection the FAA Administrator. Subtitle VII: Identifier 2010–NM–016–AD. results, a description of any discrepancies Aviation Programs,’’ describes in more Effective Date found, the airplane serial number, and the detail the scope of the Agency’s number of landings and flight hours on the authority. (a) This airworthiness directive (AD) airplane. We are issuing this rulemaking under becomes effective November 24, 2010. (1) If the inspection was done on or after the authority described in ‘‘Subtitle VII, Affected ADs the effective date of this AD: Submit the report within 30 days after the inspection. Part A, Subpart III, Section 44701: (b) None. General requirements.’’ Under that (2) If the inspection was done before the section, Congress charges the FAA with Applicability effective date of this AD: Submit the report within 30 days after the effective date of this (c) This AD applies to Airbus Model A380– promoting safe flight of civil aircraft in AD. air commerce by prescribing regulations 841, –842, and –861 airplanes, certificated in for practices, methods, and procedures any category, with serial numbers 15, 17, 19, FAA AD Differences 20, 21, and 22. the Administrator finds necessary for Note 1: This AD differs from the MCAI safety in air commerce. This regulation Subject and/or service information as follows: No is within the scope of that authority (d) Air Transport Association (ATA) of differences. because it addresses an unsafe condition America Code 36: Pneumatic. that is likely to exist or develop on Other FAA AD Provisions products identified in this rulemaking Reason (j) The following provisions also apply to action. (e) The mandatory continued airworthiness this AD: information (MCAI) states: (1) Alternative Methods of Compliance Regulatory Findings During inspection in production and on in- (AMOCs): The Manager, International We determined that this AD will not service aircraft, a number of OverHeat Branch, Transport Airplane Directorate, FAA, Detection System (OHDS) installation non- has the authority to approve AMOCs for this have federalism implications under conformities have been identified along the AD, if requested using the procedures found Executive Order 13132. This AD will bleed air ducting. in 14 CFR 39.19. Send information to ATTN: not have a substantial direct effect on Some installation issues which may lead to Todd Thompson, Aerospace Engineer, the States, on the relationship between a degraded leak detection capability have International Branch, ANM–116, Transport the national government and the States, been reported. In case of hot air leakage, the Airplane Directorate, FAA, 1601 Lind

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Avenue, SW., Renton, Washington 98057– Issued in Renton, Washington, on October • Fax: (202) 493–2251. 3356; telephone (425) 227–1175; fax (425) 26, 2010. • Mail: U.S. Department of 227–1149. Before using any approved AMOC Ali Bahrami, Transportation, Docket Operations, on any airplane to which the AMOC applies, Manager, Transport Airplane Directorate, M–30, West Building Ground Floor, notify your principal maintenance inspector Aircraft Certification Service. Room W12–140, 1200 New Jersey (PMI) or principal avionics inspector (PAI), [FR Doc. 2010–28166 Filed 11–8–10; 8:45 am] Avenue, SE., Washington, DC 20590. as appropriate, or lacking a principal BILLING CODE 4910–13–P • Hand Delivery: U.S. Department of inspector, your local Flight Standards District Transportation, Docket Operations, Office. The AMOC approval letter must M–30, West Building Ground Floor, specifically reference this AD. DEPARTMENT OF TRANSPORTATION Room W12–140, 1200 New Jersey (2) Airworthy Product: For any requirement Avenue, SE., Washington, DC, between in this AD to obtain corrective actions from Federal Aviation Administration 9 a.m. and 5 p.m., Monday through a manufacturer or other source, use these Friday, except Federal holidays. actions if they are FAA-approved. Corrective 14 CFR Part 39 Examining the AD Docket actions are considered FAA-approved if they [Docket No. FAA–2010–1106; Directorate are approved by the State of Design Authority Identifier 2010–NM–237–AD; Amendment You may examine the AD docket on (or their delegated agent). You are required 39–16508; AD 2010–23–19] the Internet at http:// to assure the product is airworthy before it www.regulations.gov; or in person at the RIN 2120–AA64 is returned to service. Docket Operations office between 9 a.m. (3) Reporting Requirements: For any Airworthiness Directives; Bombardier, and 5 p.m., Monday through Friday, reporting requirement in this AD, under the Inc. Model CL–600–2C10 (Regional Jet except Federal holidays. The AD docket provisions of the Paperwork Reduction Act Series 700, 701, & 702), Model CL–600– contains this AD, the regulatory (44 U.S.C. 3501 et seq.), the Office of 2D15 (Regional Jet Series 705), and evaluation, any comments received, and Management and Budget (OMB) has Model CL–600–2D24 (Regional Jet other information. The street address for approved the information collection Series 900) Airplanes the Docket Operations office (telephone requirements and has assigned OMB Control (800) 647–5527) is in the ADDRESSES Number 2120–0056. AGENCY: Federal Aviation section. Comments will be available in Related Information Administration (FAA), Department of the AD docket shortly after receipt. Transportation (DOT). (k) Refer to Mandatory Continuing FOR FURTHER INFORMATION CONTACT: ACTION: Final rule; request for Airworthiness Information (MCAI) European Fabio Buttitta, Aerospace Engineer, comments. Aviation Safety Agency (EASA) Airframe and Mechanical Systems Airworthiness Directive 2009–0265, dated SUMMARY: We are adopting a new Branch, ANE–171, FAA, New York December 16, 2009, and Airbus Mandatory airworthiness directive (AD) for the Aircraft Certification Office (ACO), 1600 Service Bulletin A380–36–8009, dated products listed above. This AD results Stewart Avenue, Suite 410, Westbury, December 7, 2009, for related information. from mandatory continuing New York 11590; telephone (516) 228– 7303; fax (516) 794–5531. Material Incorporated by Reference airworthiness information (MCAI) originated by an aviation authority of SUPPLEMENTARY INFORMATION: (l) You must use Airbus Mandatory Service another country to identify and correct Bulletin A380–36–8009, including Service Discussion an unsafe condition on an aviation Bulletin Report Sheet, dated December 7, product. The MCAI describes the unsafe Transport Canada Civil Aviation, 2009, to do the actions required by this AD, condition as: which is the aviation authority for unless the AD specifies otherwise. Canada, has issued Canadian (1) The Director of the Federal Register Two cases of main landing gear (MLG) Airworthiness Directive CF–2010–36, approved the incorporation by reference of failure to fully extend have been reported. An dated October 18, 2010 (referred to after this service information under 5 U.S.C. MLG failing to extend may result in an unsafe asymmetric landing configuration. this as ‘‘the MCAI’’), to correct an unsafe 552(a) and 1 CFR part 51. Preliminary investigation has shown that condition for the specified products. (2) For service information identified in interference between the MLG door and the The MCAI states: this AD, contact Airbus SAS—EANA MLG fairing seal prevented the MLG door Two cases of main landing gear (MLG) (Airworthiness Office); 1 Rond Point Maurice from opening. failure to fully extend have been reported. An Bellonte, 31707 Blagnac Cedex, France; * * * * * MLG failing to extend may result in an telephone +33 562 110 253; Fax +33 562 110 unsafe asymmetric landing configuration. 307; e-mail account.airworth- The unsafe condition is possible loss of controllability of the airplane during Preliminary investigation has shown that [email protected]; Internet http:// interference between the MLG door and the www.airbus.com. landing. This AD requires actions that MLG fairing seal prevented the MLG door (3) You may review copies of the service are intended to address the unsafe from opening. information at the FAA, Transport Airplane condition described in the MCAI. This [Canadian airworthiness] directive Directorate, 1601 Lind Avenue, SW., Renton, DATES: This AD becomes effective mandates [repetitive detailed] inspection[s Washington. For information on the November 24, 2010. for damage] and rectification, as required, of availability of this material at the FAA, call The Director of the Federal Register the MLG fairing and seal, MLG door, and 425–227–1221. approved the incorporation by reference adjacent structures. (4) You may also review copies of the of a certain publication listed in the AD The unsafe condition is possible loss of service information that is incorporated by as of November 24, 2010. controllability of the airplane during reference at the National Archives and We must receive comments on this landing. Damage includes the following: Records Administration (NARA). For AD by December 27, 2010. • Wear lines, cracks, fraying, tears, information on the availability of this ADDRESSES: You may send comments by and evidence of chafing of the rubber material at NARA, call 202–741–6030, or go any of the following methods: seal of the MLG fairing; to: http://www.archives.gov/federal_register/ • Federal eRulemaking Portal: Go to • Missing and broken rollers, loose code_of_federal_regulations/ http://www.regulations.gov. Follow the and missing fasteners, and damaged and ibr_locations.html. instructions for submitting comments. missing stops of the MLG inboard doors;

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and damage along the edge of the MLG AD. The FAA has found that the risk to not have a substantial direct effect on inboard door adjacent to the MLG the flying public justifies waiving notice the States, on the relationship between fairing; and comment prior to adoption of this the national government and the States, • Missing forward and aft stops, loose rule because the main landing gear may or on the distribution of power and and missing fasteners of the MLG fail to extend, which could result in an responsibilities among the various fairing; and damage along the edge of asymmetric landing configuration. levels of government. the MLG fairing adjacent to the MLG Therefore, we determined that notice For the reasons discussed above, I door; and and opportunity for public comment certify this AD: • Missing stops, loose and missing before issuing this AD are impracticable 1. Is not a ‘‘significant regulatory fasteners, and missing wedges of the and that good cause exists for making action’’ under Executive Order 12866; stops and wedge on the forward and aft this amendment effective in fewer than 2. Is not a ‘‘significant rule’’ under the spars. 30 days. DOT Regulatory Policies and Procedures Rectification (i.e., corrective actions) (44 FR 11034, February 26, 1979); and includes replacing the rubber seal or Comments Invited 3. Will not have a significant removing the MLG inboard door, and This AD is a final rule that involves economic impact, positive or negative, contacting Bombardier for repair requirements affecting flight safety, and on a substantial number of small entities instructions and doing the repair. You we did not precede it by notice and under the criteria of the Regulatory may obtain further information by opportunity for public comment. We Flexibility Act. examining the MCAI in the AD docket. invite you to send any written relevant We prepared a regulatory evaluation data, views, or arguments about this AD. of the estimated costs to comply with Relevant Service Information Send your comments to an address this AD and placed it in the AD docket. Bombardier has issued Alert Service listed under the ADDRESSES section. List of Subjects in 14 CFR Part 39 Include ‘‘Docket No. FAA–2010–1106; Bulletin A670BA–32–030, Revision A, Air transportation, Aircraft, Aviation including Appendix A, dated October Directorate Identifier 2010–NM–237– AD’’ at the beginning of your comments. safety, Incorporation by reference, 22, 2010. The actions described in this Safety. service information are intended to We specifically invite comments on the correct the unsafe condition identified overall regulatory, economic, Adoption of the Amendment in the MCAI. environmental, and energy aspects of ■ this AD. We will consider all comments Accordingly, under the authority FAA’s Determination and Requirements received by the closing date and may delegated to me by the Administrator, of This AD amend this AD because of those the FAA amends 14 CFR part 39 as This product has been approved by comments. follows: the aviation authority of another We will post all comments we PART 39—AIRWORTHINESS country, and is approved for operation receive, without change, to http:// DIRECTIVES in the United States. Pursuant to our www.regulations.gov, including any bilateral agreement with the State of personal information you provide. We ■ 1. The authority citation for part 39 Design Authority, we have been notified will also post a report summarizing each continues to read as follows: of the unsafe condition described in the substantive verbal contact we receive Authority: 49 U.S.C. 106(g), 40113, 44701. MCAI and service information about this AD. referenced above. We are issuing this § 39.13 [Amended] Authority for This Rulemaking AD because we evaluated all pertinent ■ 2. The FAA amends § 39.13 by adding information and determined the unsafe Title 49 of the United States Code the following new AD: condition exists and is likely to exist or specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, 2010–23–19 Bombardier, Inc.: Amendment develop on other products of the same 39–16508. Docket No. FAA–2010–1106; type design. section 106, describes the authority of Directorate Identifier 2010–NM–237–AD. the FAA Administrator. ‘‘Subtitle VII: Differences Between the AD and the Aviation Programs,’’ describes in more Effective Date MCAI or Service Information detail the scope of the Agency’s (a) This airworthiness directive (AD) We have reviewed the MCAI and authority. becomes effective November 24, 2010. related service information and, in We are issuing this rulemaking under Affected ADs the authority described in ‘‘Subtitle VII, general, agree with their substance. But (b) None. we might have found it necessary to use Part A, Subpart III, Section 44701: different words from those in the MCAI General requirements.’’ Under that Applicability to ensure the AD is clear for U.S. section, Congress charges the FAA with (c) This AD applies to the Bombardier, Inc. operators and is enforceable. In making promoting safe flight of civil aircraft in airplanes identified in paragraphs (c)(1) and these changes, we do not intend to differ air commerce by prescribing regulations (c)(2) of this AD, certificated in any category. substantively from the information for practices, methods, and procedures (1) Model CL–600–2C10 (Regional Jet Series 700, 701, & 702) airplanes, having provided in the MCAI and related the Administrator finds necessary for serial numbers (S/Ns) 10003 and subsequent. service information. safety in air commerce. This regulation (2) Model CL–600–2D15 (Regional Jet We might also have required different is within the scope of that authority Series 705) and CL–600–2D24 (Regional Jet actions in this AD from those in the because it addresses an unsafe condition Series 900) airplanes, having S/Ns 15001 and MCAI in order to follow FAA policies. that is likely to exist or develop on subsequent. Any such differences are highlighted in products identified in this rulemaking Subject a NOTE within the AD. action. (d) Air Transport Association (ATA) of FAA’s Determination of the Effective Regulatory Findings America Code 32: Landing gear. Date We determined that this AD will not Reason An unsafe condition exists that have federalism implications under (e) The mandatory continued airworthiness requires the immediate adoption of this Executive Order 13132. This AD will information (MCAI) states:

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Two cases of main landing gear (MLG) (3) Do a detailed inspection of the MLG (1) Alternative Methods of Compliance failure to fully extend have been reported. An fairing for damage (including missing (AMOCs): The Manager, New York ACO, MLG failing to extend may result in an forward and aft stops, loose and missing ANE–170, FAA, has the authority to approve unsafe asymmetric landing configuration. fasteners), and damage along the edge of the AMOCs for this AD, if requested using the Preliminary investigation has shown that MLG fairing adjacent to the MLG door. procedures found in 14 CFR 39.19. Send interference between the MLG door and the (4) Do a detailed inspection for damage information to ATTN: Program Manager, MLG fairing seal prevented the MLG door (including missing stops, loose and missing Continuing Operational Safety, FAA, New from opening. fasteners, and missing wedges) of the stops York ACO, 1600 Stewart Avenue, Suite 410, * * * * * and wedge on the forward and aft spars. Westbury, New York 11590; telephone 516– The unsafe condition is possible loss of (i) If damage to only the rubber seal on the 228–7300; fax 516–794–5531. Before using MLG fairing is found during any inspection controllability of the airplane during landing. any approved AMOC on any airplane to required by paragraph (g) or (h) of this AD: which the AMOC applies, notify your Compliance Before further flight, do either action in principal maintenance inspector (PMI) or (f) You are responsible for having the paragraph (i)(1) or (i)(2) of this AD. (1) Replace the rubber seal on the MLG principal avionics inspector (PAI), as actions required by this AD performed within appropriate, or lacking a principal inspector, the compliance times specified, unless the fairing with a new rubber seal, in accordance ‘‘ your local Flight Standards District Office. actions have already been done. with PART B—Replacement of the Forward Rubber Seal on the MLG Fairing’’ of the The AMOC approval letter must specifically Repetitive Inspections and Corrective Accomplishment Instructions of Bombardier reference this AD. Actions Alert Service Bulletin A670BA–32–030, (2) Airworthy Product: For any requirement in this AD to obtain corrective actions from (g) For airplanes having S/Ns 10003 to Revision A, dated October 22, 2010. a manufacturer or other source, use these 10313 inclusive, 15001 to 15238 inclusive, (2) Remove the MLG inboard door, in actions if they are FAA-approved. Corrective and 15240 to 15255 inclusive: Within 50 accordance with ‘‘PART C—Removal of MLG ’’ actions are considered FAA-approved if they flight cycles after the effective date of this Inboard Door of the Accomplishment AD, do the inspections specified in Instructions of Bombardier Alert Service are approved by the State of Design Authority paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of Bulletin A670BA–32–030, Revision A, dated (or their delegated agent). You are required this AD, in accordance with ‘‘PART A— October 22, 2010. For airplanes on which the to assure the product is airworthy before it MLG inboard door is re-installed, do the Inspection of the MLG Inboard Doors, MLG is returned to service. installation of the MLG inboard door in Fairing and Adjacent Structure’’ of the (3) Reporting Requirements: For any accordance with ‘‘PART D—Installation of Accomplishment Instructions of Bombardier reporting requirement in this AD, under the MLG Inboard Door’’ of the Accomplishment Alert Service Bulletin A670BA–32–030, provisions of the Paperwork Reduction Act Instructions of Bombardier Alert Service Revision A, dated October 22, 2010. Repeat (44 U.S.C. 3501 et seq.), the Office of Bulletin A670BA–32–030, Revision A, dated the inspections thereafter at intervals not to Management and Budget (OMB) has October 22, 2010. exceed 600 flight hours. approved the information collection (j) If damage other than the damage (1) Do a detailed inspection for damage requirements and has assigned OMB Control identified in paragraph (i) of this AD is found Number 2120–0056. (including wear lines, cracks, fraying, tears, during any inspection required by paragraph and evidence of chafing) of the rubber seal (g) or (h) of this AD: Before further flight, Related Information of the MLG fairing. contact the Bombardier Regional Aircraft (2) Do a detailed inspection for damage (n) Refer to MCAI Canadian Airworthiness Customer Response Center for repair Directive CF–2010–36, dated October 18, (including missing and broken rollers, loose instructions and do the repair. and missing fasteners, damaged and missing 2010; and Bombardier Alert Service Bulletin (k) Submit a report of the positive findings A670BA–32–030, Revision A, dated October stops) of the MLG inboard doors, and damage of the initial inspection required by 22, 2010; for related information. along the edge of the MLG inboard door paragraph (g) or (h), as applicable, of this AD adjacent to the MLG fairing. to Bombardier, at the applicable time Material Incorporated by Reference (3) Do a detailed inspection of the MLG specified in paragraph (k)(1) or (k)(2) of this (o) You must use Bombardier Alert Service fairing for damage (including missing AD. The report must include the information Bulletin A670BA–32–030, Revision A, forward and aft stops, loose and missing specified in Appendix A of Bombardier Alert including Appendix A, dated October 22, fasteners), and damage along the edge of the Service Bulletin A670BA–32–030, Revision 2010, to do the actions required by this AD, MLG fairing adjacent to the MLG door. A, dated October 22, 2010. (4) Do a detailed inspection for damage (1) If the inspection was done on or after unless the AD specifies otherwise. (including missing stops, loose and missing the effective date of this AD: Submit the (1) The Director of the Federal Register fasteners, and missing wedges) of the stops report within 30 days after the inspection. approved the incorporation by reference of and wedge on the forward and aft spars. (2) If the inspection was done before the this service information under 5 U.S.C. (h) For airplanes not identified in effective date of this AD: Submit the report 552(a) and 1 CFR part 51. paragraph (g) of this AD: Within 600 flight within 30 days after the effective date of this (2) For service information identified in hours after the effective date of this AD, do AD. this AD, contact Bombardier, Inc., 400 Coˆte- the inspections specified in paragraphs Vertu Road West, Dorval, Que´bec H4S 1Y9, (h)(1), (h)(2), (h)(3), and (h)(4) of this AD, in Credit for Actions Accomplished in Canada; telephone 514–855–5000; fax 514– accordance with ‘‘PART A—Inspection of the Accordance With Previous Service 855–7401; e-mail MLG Inboard Doors, MLG Fairing and Information [email protected]; Internet http:// Adjacent Structure’’ of the Accomplishment (l) Actions accomplished before the www.bombardier.com. Instructions of Bombardier Alert Service effective date of this AD according to (3) You may review copies of the service Bulletin A670BA–32–030, Revision A, dated Bombardier Alert Service Bulletin A670BA– information at the FAA, Transport Airplane October 22, 2010. Repeat the inspections 32–030, dated October 18, 2010, are Directorate, 1601 Lind Avenue, SW., Renton, thereafter at intervals not to exceed 600 flight considered acceptable for compliance with Washington. For information on the hours. the corresponding action specified in this availability of this material at the FAA, call (1) Do a detailed inspection for damage AD. 425–227–1221. (4) You may also review copies of the (including wear lines, cracks, fraying, tears, FAA AD Differences and evidence of chafing) of the rubber seal service information that is incorporated by of the MLG fairing. Note 1: This AD differs from the MCAI reference at the National Archives and (2) Do a detailed inspection for damage and/or service information as follows: No Records Administration (NARA). For (including missing and broken rollers, loose differences. information on the availability of this and missing fasteners, damaged and missing material at NARA, call 202–741–6030, or go stops) of the MLG inboard doors, and damage Other FAA AD Provisions to: http://www.archives.gov/federal_register/ along the edge of the MLG inboard door (m) The following provisions also apply to code_of_federal_regulations/ibr_locations. adjacent to the MLG fairing. this AD: html.

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Issued in Renton, Washington, on of certain publications listed in this AD Airplane Models Certificated Since the November 1, 2010. as of December 14, 2010. NPRM Was Published Jeffrey E. Duven, ADDRESSES: You may examine the AD In August 2010, after the NPRM was Acting Manager, Transport Airplane docket on the Internet at http:// published, the FAA type-certificated Directorate, Aircraft Certification Service. www.regulations.gov or in person at the two new Airbus models: Models A330– [FR Doc. 2010–28162 Filed 11–8–10; 8:45 am] U.S. Department of Transportation, 223F and –243F, and we find that those BILLING CODE 4910–13–P Docket Operations, M–30, West models are also subject to the unsafe Building Ground Floor, Room W12–140, condition identified this AD action. We 1200 New Jersey Avenue, SE., have added those models to the subject DEPARTMENT OF TRANSPORTATION Washington, DC. heading on page 1 and to paragraph FOR FURTHER INFORMATION CONTACT: (c)(1) of this AD. Since no airplanes of Federal Aviation Administration Vladimir Ulyanov, Aerospace Engineer, those models are presently on the U.S. Register, additional notice and 14 CFR Part 39 International Branch, ANM–116, Transport Airplane Directorate, FAA, opportunity for public comment on that [Docket No. FAA–2010–0675; Directorate 1601 Lind Avenue, SW., Renton, topic before issuing this AD are Identifier 2010–NM–061–AD; Amendment Washington 98057–3356; telephone unnecessary. 39–16501; AD 2010–23–12] (425) 227–1138; fax (425) 227–1149. Conclusion RIN 2120–AA64 SUPPLEMENTARY INFORMATION: We reviewed the available data, Airworthiness Directives; Airbus Model Discussion including the comment received, and A330–201, –202, –203, –223, –223F, We issued a notice of proposed determined that air safety and the –243, and –243F Airplanes, Model rulemaking (NPRM) to amend 14 CFR public interest require adopting the AD A330–300 Series Airplanes, and Model part 39 to include an AD that would with the changes described previously. A340–200, A340–300, A340–500, and apply to the specified products. That We also determined that these changes A340–600 Series Airplanes NPRM was published in the Federal will not increase the economic burden Register on July 7, 2010 (75 FR 38947). on any operator or increase the scope of AGENCY: Federal Aviation That NPRM proposed to correct an the AD. Administration (FAA), Department of unsafe condition for the specified Transportation (DOT). Differences Between This AD and the products. The MCAI states: MCAI or Service Information ACTION: Final rule. During Airbus Final Assembly Line We have reviewed the MCAI and SUMMARY: We are adopting a new reception flight tests, AoA [angle of attack] related service information and, in data from two different aeroplanes were general, agree with their substance. But airworthiness directive (AD) for the found inaccurate. Inaccuracy was confirmed products listed above. This AD results by flight data analysis. we might have found it necessary to use from mandatory continuing Investigation conducted by Thales on the different words from those in the MCAI airworthiness information (MCAI) removed probes revealed oil residue between to ensure the AD is clear for U.S. originated by an aviation authority of the stator and the rotor parts of the AoA vane operators and is enforceable. In making another country to identify and correct position resolvers. This oil residue was due these changes, we do not intend to differ an unsafe condition on an aviation to incorrect cleaning of the machining oil substantively from the information product. The MCAI describes the unsafe during the manufacturing process of the AoA provided in the MCAI and related condition as: resolvers. At low temperatures, this oil service information. residue becomes viscous (typically in cruise) We might also have required different * * * * * causing lag of AoA vane movement. Such condition could lead to discrepant actions in this AD from those in the Investigation conducted by Thales on MCAI in order to follow our FAA * * * probes revealed oil residue between AoA measurement. If not corrected, and if the stator and the rotor parts of the AoA two or three AoA probes were policies. Any such differences are [angle of attack] vane position resolvers. This simultaneously affected and provided wrong highlighted in a NOTE within the AD. indications of the AoA to a similar extent, it oil residue was due to incorrect cleaning of Costs of Compliance the machining oil during the manufacturing could lead to a late activation of the angle of process of the AoA resolvers. At low attack protection, which in combination with We estimate that this AD will affect temperatures, this oil residue becomes flight at high angle of attack would constitute about 44 products of U.S. registry. viscous (typically in cruise) causing lag of an unsafe condition. (There are currently no Model A340 AoA vane movement. Therefore, this [European Aviation Safety airplanes on the U.S. Register.) We also Such condition could lead to discrepant Agency (EASA)] AD requires a one time estimate that it will take about 3 work- AoA measurement. If not corrected, and if inspection of the Thales Avionics AoA probe P/N [part number] C16291AA in order to hours per product to comply with the two or three AoA probes were basic requirements of this AD. The simultaneously affected and provided wrong identify the suspect parts and to remove indications of the AoA to a similar extent, it them from service. average labor rate is $85 per work-hour. could lead to a late activation of the angle of This [EASA] AD revision is issued to Based on these figures, we estimate the attack protection, which in combination with specify that the identification of the affected cost of this AD to the U.S. operators to flight at high angle of attack would constitute AoA probes is also possible in accordance be $11,220, or $255 per product. an unsafe condition. with aeroplane maintenance records data analysis. Authority for This Rulemaking * * * * * You may obtain further information by Title 49 of the United States Code We are issuing this AD to require examining the MCAI in the AD docket. specifies the FAA’s authority to issue actions to correct the unsafe condition rules on aviation safety. Subtitle I, on these products. Comments section 106, describes the authority of DATES: This AD becomes effective We gave the public the opportunity to the FAA Administrator. ‘‘Subtitle VII: December 14, 2010. participate in developing this AD. We Aviation Programs,’’ describes in more The Director of the Federal Register considered the comment received. The detail the scope of the Agency’s approved the incorporation by reference commenter supports the NPRM. authority.

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We are issuing this rulemaking under List of Subjects in 14 CFR Part 39 During Airbus Final Assembly Line reception flight tests, AoA data from two the authority described in ‘‘Subtitle VII, Air transportation, Aircraft, Aviation Part A, Subpart III, Section 44701: different aeroplanes were found inaccurate. safety, Incorporation by reference, Inaccuracy was confirmed by flight data General requirements.’’ Under that Safety. section, Congress charges the FAA with analysis. Adoption of the Amendment Investigation conducted by Thales on the promoting safe flight of civil aircraft in removed probes revealed oil residue between air commerce by prescribing regulations Accordingly, under the authority the stator and the rotor parts of the AoA vane for practices, methods, and procedures delegated to me by the Administrator, position resolvers. This oil residue was due the Administrator finds necessary for the FAA amends 14 CFR part 39 as to incorrect cleaning of the machining oil safety in air commerce. This regulation follows: during the manufacturing process of the AoA is within the scope of that authority resolvers. At low temperatures, this oil because it addresses an unsafe condition PART 39—AIRWORTHINESS residue becomes viscous (typically in cruise) that is likely to exist or develop on DIRECTIVES causing lag of AoA vane movement. products identified in this rulemaking Such condition could lead to discrepant action. ■ 1. The authority citation for part 39 AoA measurement. If not corrected, and if continues to read as follows: two or three AoA probes were Regulatory Findings simultaneously affected and provided wrong Authority: 49 U.S.C. 106(g), 40113, 44701. indications of the AoA to a similar extent, it We determined that this AD will not could lead to a late activation of the angle of § 39.13 [Amended] have federalism implications under attack protection, which in combination with Executive Order 13132. This AD will ■ 2. The FAA amends § 39.13 by adding flight at high angle of attack would constitute not have a substantial direct effect on the following new AD: an unsafe condition. the States, on the relationship between Therefore, this [European Aviation Safety the national government and the States, 2010–23–12 Airbus: Amendment 39–16501. Agency (EASA)] AD requires a one time Docket No. FAA–2010–0675; Directorate inspection of the Thales Avionics AoA probe or on the distribution of power and Identifier 2010–NM–061–AD. responsibilities among the various P/N C16291AA in order to identify the levels of government. Effective Date suspect parts and to remove them from service. For the reasons discussed above, I (a) This airworthiness directive (AD) This [EASA] AD revision is issued to certify this AD: becomes effective December 14, 2010. 1. Is not a ‘‘significant regulatory specify that the identification of the affected Affected ADs AoA probes is also possible in accordance action’’ under Executive Order 12866; (b) None. with aeroplane maintenance records data 2. Is not a ‘‘significant rule’’ under the analysis. DOT Regulatory Policies and Procedures Applicability Compliance (44 FR 11034, February 26, 1979); and (c) This AD applies to the airplanes 3. Will not have a significant identified in paragraphs (c)(1) and (c)(2) of (f) You are responsible for having the economic impact, positive or negative, this AD. actions required by this AD performed within on a substantial number of small entities (1) Airbus Model A330–201, A330–202, the compliance times specified, unless the under the criteria of the Regulatory A330–203, A330–223, A330–223F, A330– actions have already been done. Flexibility Act. 243, A330–243F, A330–301, A330–302, Inspection of AoA Probes We prepared a regulatory evaluation A330–303, A330–321, A330–322, A330–323, A330–341, A330–342 and A330–343 (g) Within 3 months after the effective date of the estimated costs to comply with of this AD, perform a detailed visual this AD and placed it in the AD docket. airplanes, certificated in any category; all manufacturer serial numbers, equipped with inspection of the Thales Avionics AoA Examining the AD Docket Thales Avionics angle of attack (AoA) probes probes having P/N C16291AA for a serial number identification, in accordance with You may examine the AD docket on having part number (P/N) C16291AA. (2) Airbus Model A340–211, A340–212, the Accomplishment Instructions of the the Internet at http:// A340–213, A340–311, A340–312, A340–313, applicable service information identified in www.regulations.gov; or in person at the A340–541, and A340–642 airplanes, Table 1 of this AD. A review of airplane Docket Operations office between 9 a.m. certificated in any category, all manufacturer maintenance records is acceptable in lieu of and 5 p.m., Monday through Friday, serial numbers, equipped with Thales this inspection if the serial number of the except Federal holidays. The AD docket Avionics AoA probes having P/N C16291AA. AoA probe can be conclusively determined from that review. If no AoA probe having P/ contains the NPRM, the regulatory Subject evaluation, any comments received, and N C16291AA and a serial number identified in Thales Service Bulletin C16291A–34–007, other information. The street address for (d) Air Transport Association (ATA) of America Code 34: Navigation. Revision 01, dated December 3, 2009, is the Docket Operations office (telephone identified during the inspection required by (800) 647–5527) is in the ADDRESSES Reason this paragraph of this AD, no further action section. Comments will be available in (e) The mandatory continuing is required by this AD, except for paragraph the AD docket shortly after receipt. airworthiness information (MCAI) states: (i) of this AD.

TABLE 1—APPLICABLE SERVICE INFORMATION

Model Document Date

Model A330–200 and A330–300 series airplanes ...... Airbus Mandatory Service Bulletin A330–34–3232 ...... January 20, 2010. Model A340–200 and A340–300 series airplanes ...... Airbus Mandatory Service Bulletin A340–34–4239 ...... January 20, 2010. Model A340–500 and A340–600 series airplanes ...... Airbus Mandatory Service Bulletin A340–34–5072 ...... January 20, 2010.

Replacement of Identified AoA Probes paragraph (g) of this AD corresponds to a 01, dated December 3, 2009: At the (h) If the serial number of the AoA probe suspect AoA probe specified in Thales applicable time specified in paragraph (h)(1) identified during the inspection required by Service Bulletin C16291A–34–007, Revision or (h)(2) of this AD, replace the affected AoA

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probe with a serviceable AoA probe in December 3, 2009, unless the AoA is fitted using any approved AMOC on any airplane accordance with one of the four options with an inspection label stating that Thales to which the AMOC applies, notify your specified in and in accordance with the Service Bulletin C16291A–34–007, Revision principal maintenance inspector (PMI) or Accomplishment Instructions of the 01, dated December 3, 2009, has been principal avionics inspector (PAI), as applicable service bulletin specified in Table accomplished. appropriate, or lacking a principal inspector, 1 of this AD. your local Flight Standards District Office. FAA AD Differences (1) For airplanes on which Airbus The AMOC approval letter must specifically Modification 53368 (back-up speed scale) has Note 1: This AD differs from the MCAI reference this AD. been embodied in production or Airbus and/or service information as follows: EASA (2) Airworthy Product: For any requirement Service Bulletin A330–34–3213, Airbus Airworthiness Directive 2010–0016R1, dated in this AD to obtain corrective actions from Service Bulletin A340–34–4213, or Airbus February 9, 2010, does not include Models a manufacturer or other source, use these Service Bulletin A340–34–5060, as A330–223F and A330–243F. We find that actions if they are FAA-approved. Corrective applicable, has been embodied in service: those models need to be included in this AD actions are considered FAA-approved if they Within 3 months after the effective date of action, and have coordinated this difference are approved by the State of Design Authority this AD. with EASA and Airbus. (2) For airplanes on which Airbus (or their delegated agent). You are required to assure the product is airworthy before it Modification 53368 (back-up speed scale) has Other FAA AD Provisions not been embodied in production and Airbus is returned to service. Service Bulletin A330–34–3213, Airbus (j) The following provisions also apply to (3) Reporting Requirements: For any Service Bulletin A340–34–4213, or Airbus this AD: reporting requirement in this AD, under the Service Bulletin A340–34–5060, as (1) Alternative Methods of Compliance provisions of the Paperwork Reduction Act applicable, has not been embodied in service: (AMOCs): The Manager, International (44 U.S.C. 3501 et seq.), the Office of Within 15 months after the effective date of Branch, ANM–116, Transport Airplane Management and Budget (OMB) has this AD. Directorate, FAA, has the authority to approved the information collection approve AMOCs for this AD, if requested requirements and has assigned OMB Control Parts Installation using the procedures found in 14 CFR 39.19. Number 2120–0056. (i) As of the effective date of this AD, no Send information to ATTN: Vladimir person may install, on any airplane, a Thales Ulyanov, Aerospace Engineer, International Related Information Avionics AoA probe having Branch, ANM–116, Transport Airplane (k) Refer to MCAI EASA Airworthiness P/N C16291AA and a serial number Directorate, FAA, 1601 Lind Avenue, SW., Directive 2010–0016R1, dated February 9, identified in Thales Service Bulletin Renton, Washington 98057–3356; telephone 2010, and the service information identified C16291A–34–007, Revision 01, dated (425) 227–1138; fax (425) 227–1149. Before in Table 2 of this AD, for related information.

TABLE 2—RELATED SERVICE INFORMATION

Document Revision Date

Airbus Mandatory Service Bulletin A330–34–3232 ...... Original ...... January 20, 2010. Airbus Mandatory Service Bulletin A340–34–4239 ...... Original ...... January 20, 2010. Airbus Mandatory Service Bulletin A340–34–5072 ...... Original ...... January 20, 2010. Thales Service Bulletin C16291A–34–007 ...... Revision 01 ...... December 3, 2009.

Material Incorporated by Reference France; telephone +33 5 61 93 36 96; fax +33 Directorate, 1601 Lind Avenue, SW., Renton, (l) You must use the service information 5 61 93 45 80; e-mail airworthiness.A330- Washington. For information on the contained in Table 3 of this AD to do the [email protected]; Internet http:// availability of this material at the FAA, call actions required by this AD, unless the AD www.airbus.com. For Thales Avionics service 425–227–1221. specifies otherwise. information identified in this AD, contact (4) You may also review copies of the (1) The Director of the Federal Register Thales—Aerospace Division, 105, avenue du service information that is incorporated by approved the incorporation by reference of General Eisenhower—BP 63647, 31036 reference at the National Archives and this service information under 5 U.S.C. Toulouse Cedex 1, France; telephone +33 Records Administration (NARA). For 552(a) and 1 CFR part 51. (0)5 61 19 65 00; fax +33 (0)5 61 19 66 00; information on the availability of this (2) For Airbus service information Internet http://www.thalesgroup.com/ material at NARA, call 202–741–6030, or go identified in this AD, contact Airbus SAS– aerospace. to: http://www.archives.gov/federal_register/ Airworthiness Office—EAL, 1 Rond Point (3) You may review copies of the service code_of_federal_regulations/ibr_ Maurice Bellonte, 31707 Blagnac Cedex, information at the FAA, Transport Airplane locations.html.

TABLE 3—MATERIAL INCORPORATED BY REFERENCE

Document Revision Date

Airbus Mandatory Service Bulletin A330–34–3232, excluding Appendix 01 ...... Original ...... January 20, 2010. Airbus Mandatory Service Bulletin A340–34–4239, excluding Appendix 01 ...... Original ...... January 20, 2010. Airbus Mandatory Service Bulletin A340–34–5072, excluding Appendix 01 ...... Original ...... January 20, 2010. Thales Service Bulletin C16291A–34–007 ...... Revision 01 ...... December 3, 2009.

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Issued in Renton, Washington, on October proposal. No comments were received. Title 49 of the United States Code. 22, 2010. This amendment is the same as that Subtitle I, Section 106 describes the Michael Kaszycki, proposed in the NPRM. authority of the FAA Administrator. Acting Manager, Transport Airplane Subtitle VII, Aviation Programs, The Rule Directorate, Aircraft Certification Service. describes in more detail the scope of the [FR Doc. 2010–28087 Filed 11–8–10; 8:45 am] This action amends Title 14 Code of agency’s authority. BILLING CODE 4910–13–P Federal Regulations (14 CFR) part 71 This rulemaking is promulgated establishing two RNAV T-routes, T–267 under the authority described in and T–271, and modifying three RNAV Subtitle VII, Part A, Subpart I, Section DEPARTMENT OF TRANSPORTATION T-routes and one Q-route in Alaska. In 40103. Under that section, the FAA is response to comments received for a charged with prescribing regulations to Federal Aviation Administration NPRM published February 12, 2009, (74 assign the use of the airspace necessary FR 7012), a new T-route (T–267) is to ensure the safety of aircraft and the 14 CFR Part 71 established, which will circumvent the efficient use of airspace. This regulation [Docket No. FAA–2010–0397; Airspace ocean near Kotzebue, AK, allowing IFR is within the scope of that authority as Docket No. 10–AAL–7] aircraft to fly closer to the shoreline. it establishes and amends RNAV routes Also, one modified T-route continues in Alaska. RIN 2120–AA66 south from Frederick’s Point Non- Environmental Review Establishment and Amendment of Area directional Beacon, for connectivity Navigation (RNAV) Routes; Alaska between Juneau and Ketchikan, AK. The FAA has determined that this Two T-routes are modified to allow action qualifies for categorical exclusion AGENCY: Federal Aviation lower minimum en route altitudes to be under the National Environmental Administration (FAA), DOT. flown. Additionally, one Q-route is Policy Act in accordance with FAA ACTION: Final rule. revised to provide a more direct route Order 1050.1E, Environmental Impacts: between Anchorage and Galena, AK. Policies and Procedures, paragraph SUMMARY: This action establishes two The RNAV routes described in this rule and modifies four Area Navigation 311a. This airspace action is not will enhance safety, and facilitate more expected to cause any potentially (RNAV) routes in Alaska. T and Q- flexible and efficient use of the routes are Air Traffic Service (ATS) significant environmental impacts, and navigable airspace for en route IFR no extraordinary circumstances exist routes, based on RNAV, for use by operations in Alaska. aircraft having instrument flight rules that warrant preparation of an High Altitude RNAV routes are environmental assessment. (IFR)-approved Global Positioning published in paragraph 2006, and Low System (GPS)/Global Navigation Altitude RNAV routes are published in List of Subjects in 14 CFR Part 71 Satellite System (GNSS) equipment, or paragraph 6011, in FAA Order 7400.9U Distance Measuring Equipment (DME)/ Airspace, Incorporation by reference, dated August 18, 2010, and effective Navigation (air). DME Inertial Reference Unit (IRU) September, 15, 2010, which is navigation capability. The FAA is taking incorporated by reference in 14 CFR Adoption of the Amendment this action to enhance safety and 71.1. The airspace designations listed in ■ improve the efficient use of the this document will be published In consideration of the foregoing, the navigable airspace in Alaska. subsequently in the Order. Federal Aviation Administration DATES: Effective date 0901 UTC, January The FAA has determined that this amends 14 CFR part 71 as follows: 13, 2011. The Director of the Federal regulation only involves an established PART 71—DESIGNATION OF CLASS A, Register approves this incorporation by body of technical regulations for which B, C, D, AND E AIRSPACE AREAS; AIR reference action under 1 CFR part 51, frequent and routine amendments are TRAFFIC SERVICE ROUTES; AND subject to the annual revision of FAA necessary to keep them operationally REPORTING POINTS Order 7400.9 and publication of current. Therefore, this regulation: (1) Is conforming amendments. not a ‘‘significant regulatory action ■ 1. The authority citation for part 71 FOR FURTHER INFORMATION CONTACT: Ken ‘‘under Executive Order 12866; (2) is not continues to read as follows: a ‘‘significant rule’’ under Department of McElroy, Airspace, Regulations and Authority: 49 U.S.C. 106(g), 40103, 40113, ATC Procedures Group, Office of Transportation (DOT) Regulatory 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Airspace Services, Federal Aviation Policies and Procedures (44 FR 11034; 1963 Comp., p. 389. Administration, 800 Independence February 26, 1979); and (3) does not Avenue, SW., Washington, DC 20591; warrant preparation of a regulatory § 71.1 [Amended] telephone: (202) 267–8783. evaluation as the anticipated impact is ■ 2. The incorporation by reference in so minimal. Since this is a routine History 14 CFR 71.1 of the Federal Aviation matter that will only affect air traffic Administration Order 7400.9U, On June 7, 2010, the FAA published procedures and air navigation, it is Airspace Designations and Reporting in the Federal Register a notice of certified that this rule, when Points, dated August 18, 2010, and proposed rulemaking (NPRM) to promulgated, will not have a significant effective September 15, 2010, is establish and amend Area Navigation economic impact on a substantial amended as follows: Routes in Alaska (75 FR 32120). number of small entities under the Interested parties were invited to criteria of the Regulatory Flexibility Act. Paragraph 2006 United States Area participate in this rulemaking effort by The FAA’s authority to issue rules Navigation Routes submitting written comments on the regarding aviation safety is found in * * * * *

Q–8 ANC to GAL [Revised] GAL ...... VOR/DME ...... (Lat. 64°44′17″ N., long. 156°46′38″ W.) ANC ...... VOR/DME ...... (Lat. 61°09′03″ N., long. 150°12′24″ W.)

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* * * * * Paragraph 6011 United States Area Navigation Routes * * * * *

T–227 SYA to SCC [Modified] SYA ...... VORTAC ...... (Lat. 52°43′06″ N., long. 174°03′44″ E.) JANNT ...... WP ...... (Lat. 52°04′18″ N., long. 178°15′37″ W.) BAERE ...... WP ...... (Lat. 52°12′12″ N., long. 176°08′09″ W.) ALEUT ...... FIX ...... (Lat. 54°14′17″ N., long. 166°32′52″ W.) MORDI ...... FIX ...... (Lat. 54°52′50″ N., long. 165°03′15″ W.) GENFU ...... FIX ...... (Lat. 55°23′19″ N., long. 163°06′22″ W.) BINAL ...... FIX ...... (Lat. 55°46′00″ N., long. 161°59′56″ W.) PDN ...... NDB/DME ...... (Lat. 56°57′15″ N., long. 158°38′51″ W.) BATTY ...... FIX ...... (Lat. 59°03′57″ N., long. 155°04′42″ W.) AMOTT ...... FIX ...... (Lat. 60°53′56″ N., long. 151°21′46″ W.) ANC ...... VOR/DME ...... (Lat. 61°09′03″ N., long. 150°12′24″ W.) FAI ...... VORTAC ...... (Lat. 64°48′00″ N., long. 148°00′43″ W.) SCC ...... VOR/DME ...... (Lat. 70°11′57″ N., long. 148°24′58″ W.)

******* T–266 CGL to ANN [Modified] CGL ...... NDB ...... (Lat. 58°21′33″ N., long. 134°41′58″ W.) FPN ...... NDB ...... (Lat. 56°47′32″ N., long. 132°49′16″ W.) ANN ...... VOR/DME ...... (Lat. 55°03′37″ N., long. 131°34′42″ W.)

******* T–267 OME to OTZ [New] OME ...... VOR/DME ...... (Lat. 64°29′06″ N., long. 165°15′11″ W.) BALIN ...... FIX ...... (Lat. 64°33′55″ N., long. 161°34′32″ W.) OTZ ...... VOR/DME ...... (Lat. 66°53′09″ N., long. 162°32′24″ W.)

******* T–271 CDB to AMOTT [New] CDB ...... VORTAC ...... (Lat. 55°16′03″ N., long. 162°46′27″ W.) BINAL ...... FIX ...... (Lat. 55°46′00″ N., long. 161°59′56″ W.) AKN ...... VORTAC ...... (Lat. 58°43′29″ N., long. 156°45′08″ W.) AMOTT ...... FIX ...... (Lat. 60°53′56″ N., long. 151°21′46″ W.)

******* T–273 FAI to ROCES [Modified] FAI ...... VORTAC ...... (Lat. 64°48′00″ N., long. 148°00′43″ W.) AYKID ...... FIX ...... (Lat. 65°50′58″ N., long. 147°16′34″ W.) TUVVO ...... FIX ...... (Lat. 67°37′20″ N., long. 146°04′49″ W.) ROCES ...... WP ...... (Lat. 70°08′34″ N., long. 144°08′16″ W.)

Issued in Washington, DC, on November 2, compliance date for the amendments to programming and testing for compliance 2010. Rule 201 and Rule 200(g) of Regulation with the requirements of the Rule. Edith V. Parish, SHO under the Securities Exchange Act DATES: The effective date for Rule 201 Manager, Airspace, Regulations and ATC of 1934 (‘‘Exchange Act’’). Rule 201 (17 CFR 242.201) and Rule 200(g) (17 Procedures Group. adopts a short sale-related circuit CFR 242.200(g)) remains March 10, [FR Doc. 2010–28192 Filed 11–8–10; 8:45 am] breaker that, if triggered, will impose a 2010. The compliance date for both BILLING CODE 4910–13–P restriction on the prices at which securities may be sold short (‘‘short sale Rules has been extended from price test restriction’’). The amendments November 10, 2010 to February 28, SECURITIES AND EXCHANGE to Rule 200(g) provide that a broker- 2011. COMMISSION dealer may mark certain qualifying short FOR FURTHER INFORMATION CONTACT: sale orders ‘‘short exempt.’’ The Josephine Tao, Assistant Director, or 17 CFR Part 242 Commission is extending the Angela Moudy, Attorney-Advisor, [Release No. 34–63247; File No. S7–08–09] compliance date for the amendments to Division of Trading and Markets, at Rule 201 and Rule 200(g) to give certain RIN 3235–AK35 (202) 551–5720, Securities and exchanges additional time to modify Exchange Commission, 100 F Street, their current procedures for conducting Regulation SHO NE., Washington, DC 20549–6628. single-priced opening, reopening, and AGENCY: Securities and Exchange closing transactions for covered SUPPLEMENTARY INFORMATION: securities that have triggered Rule 201’s Commission. I. Introduction ACTION: Final rule; extension of circuit breaker in a manner that is compliance date. consistent with the goals and On February 26, 2010, the requirements of Rule 201. Further, the Commission adopted amendments to SUMMARY: The Commission is extending extended compliance period will give Rule 201 and Rule 200(g) of Regulation for a limited period of time the industry participants additional time for

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SHO.1 Rule 201 requires that a trading the requirements and goals of Rule 201’s prior to the November 10, 2010 center establish, maintain, and enforce short sale price test restriction.5 compliance date. All industry written policies and procedures In addition, we believe that an participants will receive additional time reasonably designed to prevent the extended compliance period may to comply with Rule 201 and Rule execution or display of a short sale benefit industry participants by 200(g) beyond the compliance date order of a covered security at a price providing more time for programming originally set forth in the Rule 201 that is less than or equal to the current and testing for compliance with the Adopting Release. Further, the national best bid if the price of that Rule’s requirements. We have been Commission recognizes that it is covered security decreases by 10% or informed that there have been some imperative for industry participants to more from its closing price as delays in the programming process, due receive notice of the extended in part to certain information, which determined by the listing market for the compliance date, and providing was necessary to effectively program for covered security as of the end of regular immediate effectiveness upon compliance with Rule 201, being trading hours on the prior day.2 In publication of this release will allow addition, the Rule requires that the provided by various parties, including exchanges and data vendors, on dates industry participants to adjust their trading center establish, maintain, and 7 that were later than originally implementation plans accordingly. enforce written policies and procedures anticipated. As a result, we have been The Commission identified certain reasonably designed to impose this informed that there may be an increased costs and benefits associated with the short sale price test restriction for the risk of technical or market problems if amendments to Rule 201 and Rule remainder of the day and the following full implementation of Rule 201 is 200(g) of Regulation SHO in the Rule day when a national best bid for the required by November 10, 2010. 201 Adopting Release. The extension of covered security is calculated and As a result of these considerations, the compliance date for the disseminated on a current and and in order to avoid any potential amendments to Rule 201 and Rule continuing basis by a plan processor adverse effects on the markets from 200(g) of Regulation SHO will delay the pursuant to an effective national market implementation of Rule 201 under the benefits of the Rules, but the system plan.3 The amendments to Rule circumstances, we have determined to Commission believes that the limited 200(g) provide that broker-dealers may extend the compliance date to February extension is necessary and appropriate mark certain short sale orders ‘‘short 28, 2011 because we understand that because it will provide (1) certain exempt.’’ 4 this would provide the exchanges and exchanges additional time to modify other industry participants with Commission staff has been working their current procedures for conducting sufficient time to resolve the issues with the markets and their participants single-priced transactions for covered since Rule 201 was adopted to resolve surrounding implementation of Rule 201. securities that have triggered Rule 201’s operational issues relating to circuit breaker in a manner that is implementation of the Rule. As part of II. Conclusion consistent with the goals and these efforts, we have become aware For the reasons cited above, the requirements of Rule 201, and (2) that certain exchanges require Commission, for good cause, finds that industry participants additional time for additional time to address their notice and solicitation of comment programming and testing for compliance procedures for conducting single-priced regarding the extension of the with the requirements of Rule 201 and opening, reopening, and closing compliance date set forth herein are Rule 200(g). The extension also will ‘‘ transactions ( single-priced impractical, unnecessary, or contrary to delay the costs of complying with the transactions’’) for covered securities that the public interest.6 The Commission amendments.8 The Commission believes have triggered the Rule’s circuit breaker. notes that the compliance date is a few that the extension does not impose any Specifically, we have been advised that days away, and that a limited extension burden on competition not necessary or certain exchanges may encounter of the compliance date will facilitate the appropriate in furtherance of the difficulties in applying Rule 201, which orderly implementation of Rule 201. In purposes of the Exchange Act, because, uses the national best bid as a reference light of this time constraint, full notice as noted above, the extension will give point, to their single-priced and comment could not be completed exchanges additional time to modify transactions. These transactions involve certain of their current procedures, and the queuing and ultimate execution of 5 A significant percentage of total trading volume multiple orders at a single price, and the can be executed in single-priced transactions. For industry participants additional time for single equilibrium price determined example, one exchange executes approximately programming and testing, in a manner 25% of its total trading volume in its opening and through this process is based on orders that is consistent with the goals and closing transactions. requirements of the amendments to Rule on the exchange, without any reference 6 See Section 553(b)(3)(B) of the Administrative to the national best bid at the time of Procedure Act (5 U.S.C. 553(b)(3)(B)) (stating that 201 and Rule 200(g) of Regulation SHO. execution. Due to potential operational an agency may dispense with prior notice and By the Commission. comment when it finds, for good cause, that notice concerns, we are providing additional and comment are ‘‘impractical, unnecessary, or time for exchanges that currently contrary to the public interest’’). This finding also 7 The compliance date extensions set forth in this conduct single-priced transactions satisfies the requirements of 5 U.S.C. 808(2), release are effective upon publication in the Federal through a formalized and transparent allowing the rules to become effective Register. Section 553(d)(1) of the Administrative notwithstanding the requirement of 5 U.S.C. 801 (if Procedure Act allows effective dates that are less process to address this issue in a a federal agency finds that notice and public than 30 days after publication for a ‘‘substantive manner that would be consistent with comment are ‘‘impractical, unnecessary or contrary rule which grants or recognizes an exemption or to the public interest,’’ a rule ‘‘shall take effect at ’’ such time as the Federal agency promulgating the relieves a restriction. 5 U.S.C. 553(d)(1). 1 Exchange Act Release No. 61595 (Feb. 26, 2010), rule determines’’). Also, because the Regulatory 8 The Commission identified in the Rule 201 75 FR 11232 (Mar. 10, 2010) (‘‘Rule 201 Adopting Flexibility Act (5 U.S.C. 601–612) only requires Adopting Release certain ongoing costs associated Release’’). agencies to prepare analyses when the with the amendments to Rule 201 and Rule 200(g) 2 See 17 CFR 242.201(b)(1)(i). Administrative Procedures Act requires general of Regulation SHO. Because of the extension of the 3 See 17 CFR 242.201(b)(1)(ii). notice of rulemaking, that Act does not apply to the compliance date, such costs could be avoided from 4 See 17 CFR 242.200(g)(2). actions that we are taking in this release. November 10, 2010 to February 28, 2011.

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Dated: November 4, 2010. The waterway has seasonal DEPARTMENT OF HOMELAND Elizabeth M. Murphy, recreational vessels, and commercial SECURITY Secretary. vessels of various sizes. Federal Emergency Management [FR Doc. 2010–28327 Filed 11–8–10; 8:45 am] The owner of the bridge, New Jersey Agency BILLING CODE 8011–01–P Transit, requested a temporary deviation to facilitate necessary electrical system 44 CFR Part 64 upgrades and asbestos removal at the bridge. [Docket ID FEMA–2010–0003; Internal DEPARTMENT OF HOMELAND Agency Docket No. FEMA–8155] SECURITY Under this temporary deviation the Upper Hack Bridge, mile 6.9, across the Suspension of Community Eligibility Coast Guard Hackensack River may remain in the closed position from 8 a.m. on AGENCY: Federal Emergency 33 CFR Part 117 November 18, 2010 through 6 p.m. on Management Agency, DHS. November 19, 2010. Vessels that can ACTION: Final rule. [Docket No. USCG–2010–0977] pass under the bridge without a bridge SUMMARY: This rule identifies opening may do so at all times. Drawbridge Operation Regulations; communities, where the sale of flood Hackensack River, Jersey City, NJ In accordance with 33 CFR 117.35(e), insurance has been authorized under the bridge must return to its regular the National Flood Insurance Program AGENCY: Coast Guard, DHS. operating schedule immediately at the (NFIP), that are scheduled for ACTION: Notice of temporary deviation end of the designated time period. This suspension on the effective dates listed from regulations. deviation from the operating regulations within this rule because of is authorized under 33 CFR 117.35. noncompliance with the floodplain SUMMARY: The Commander, First Coast management requirements of the Dated: October 27, 2010. Guard District, has issued a temporary program. If the Federal Emergency deviation from the regulation governing Gary Kassof, Management Agency (FEMA) receives the operation of the Upper Hack Bridge Bridge Program Manager, First Coast Guard documentation that the community has at mile 6.9, across the Hackensack River, District. adopted the required floodplain at Secaucus, New Jersey. Under this [FR Doc. 2010–28204 Filed 11–8–10; 8:45 am] management measures prior to the temporary deviation the bridge may BILLING CODE 4910–15–P effective suspension date given in this remain in the closed position for two rule, the suspension will not occur and days in November to facilitate bridge a notice of this will be provided by repairs. publication in the Federal Register on a DATES: This deviation is effective from DEPARTMENT OF THE INTERIOR subsequent date. 8 a.m. on November 18, 2010 through 6 DATES: Effective Dates: The effective p.m. on November 19, 2010. Office of the Secretary date of each community’s scheduled ADDRESSES: Documents mentioned in suspension is the third date (‘‘Susp.’’) this preamble as being available in the 43 CFR Part 4 listed in the third column of the docket are part of docket USCG–2010– following tables. 0977 and are available online at RIN 1094–AA53 FOR FURTHER INFORMATION CONTACT: If http://www.regulations.gov, inserting you want to determine whether a USCG–2010–0977 in the ‘‘Keyword’’ and Interior Board of Land Appeals and particular community was suspended then clicking ‘‘Search’’. They are also Other Appeals Procedures on the suspension date or for further available for inspection or copying at Correction information, contact David Stearrett, the Docket Management Facility (M–30), Mitigation Directorate, Federal U.S. Department of Transportation, In rule document 2010–26200 Emergency Management Agency, 500 C West Building Ground Floor, Room beginning on page 64655 in the issue of Street, SW., Washington, DC 20472, W12–140, 1200 New Jersey Avenue, SE., Wednesday, October 20, 2010 make the (202) 646–2953. Washington, DC 20590, between 9 a.m. following correction: SUPPLEMENTARY INFORMATION: The NFIP and 5 p.m., Monday through Friday, enables property owners to purchase except Federal holidays. § 4.400 [Corrected] flood insurance which is generally not FOR FURTHER INFORMATION CONTACT: If On page 64664, in § 4.400, in the otherwise available. In return, you have questions on this rule, call or second column, in the first and second communities agree to adopt and e-mail Mr. Joe Arca, Project Officer, lines, ‘‘provided in the Bureau decision administer local floodplain management First Coast Guard District, telephone ’’ ‘‘ aimed at protecting lives and new (212) 668–7165. If you have questions under appeal should read provided in the Bureau or Office decision under construction from future flooding. on viewing the docket, call Renee V. Section 1315 of the National Flood appeal.’’ Wright, Program Manager, Docket Insurance Act of 1968, as amended, 42 Operations, telephone 202–366–9826. [FR Doc. C1–2010–26200 Filed 11–8–10; 8:45 am] U.S.C. 4022, prohibits flood insurance SUPPLEMENTARY INFORMATION: The Upper BILLING CODE 1505–01–D coverage as authorized under the NFIP, Hack Bridge, across the Hackensack 42 U.S.C. 4001 et seq.; unless an River at mile 6.9 has a vertical clearance appropriate public body adopts in the closed position of 8 feet at mean adequate floodplain management high water and 13 feet at mean low measures with effective enforcement water. The existing drawbridge measures. The communities listed in operation regulations are listed at 33 this document no longer meet that CFR 117.723(d). statutory requirement for compliance

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with program regulations, 44 CFR part prohibition against certain types of available in the communities unless 59. Accordingly, the communities will Federal assistance becomes effective for remedial action takes place. be suspended on the effective date in the communities listed on the date Regulatory Classification. This final the third column. As of that date, flood shown in the last column. The rule is not a significant regulatory action insurance will no longer be available in Administrator finds that notice and under the criteria of section 3(f) of the community. However, some of these public comment under 5 U.S.C. 553(b) Executive Order 12866 of September 30, communities may adopt and submit the are impracticable and unnecessary 1993, Regulatory Planning and Review, required documentation of legally because communities listed in this final 58 FR 51735. enforceable floodplain management rule have been adequately notified. Executive Order 13132, Federalism. measures after this rule is published but Each community receives 6-month, This rule involves no policies that have prior to the actual suspension date. 90-day, and 30-day notification letters federalism implications under Executive These communities will not be addressed to the Chief Executive Officer Order 13132. suspended and will continue their stating that the community will be Executive Order 12988, Civil Justice eligibility for the sale of insurance. A suspended unless the required Reform. This rule meets the applicable notice withdrawing the suspension of floodplain management measures are standards of Executive Order 12988. the communities will be published in met prior to the effective suspension Paperwork Reduction Act. This rule the Federal Register. date. Since these notifications were does not involve any collection of made, this final rule may take effect information for purposes of the In addition, FEMA has identified the within less than 30 days. Paperwork Reduction Act, 44 U.S.C. Special Flood Hazard Areas (SFHAs) in National Environmental Policy Act. 3501 et seq. these communities by publishing a This rule is categorically excluded from Flood Insurance Rate Map (FIRM). The the requirements of 44 CFR part 10, List of Subjects in 44 CFR Part 64 date of the FIRM, if one has been Environmental Considerations. No Flood insurance, Floodplains. published, is indicated in the fourth environmental impact assessment has ■ Accordingly, 44 CFR part 64 is column of the table. No direct Federal been prepared. financial assistance (except assistance Regulatory Flexibility Act. The amended as follows: pursuant to the Robert T. Stafford Administrator has determined that this PART 64—[AMENDED] Disaster Relief and Emergency rule is exempt from the requirements of Assistance Act not in connection with a the Regulatory Flexibility Act because ■ 1. The authority citation for part 64 flood) may legally be provided for the National Flood Insurance Act of continues to read as follows: construction or acquisition of buildings 1968, as amended, 42 U.S.C. 4022, Authority: 42 U.S.C. 4001 et seq.; in identified SFHAs for communities prohibits flood insurance coverage Reorganization Plan No. 3 of 1978, 3 CFR, not participating in the NFIP and unless an appropriate public body 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, identified for more than a year, on adopts adequate floodplain management 3 CFR, 1979 Comp.; p. 376. FEMA’s initial flood insurance map of measures with effective enforcement the community as having flood-prone measures. The communities listed no § 64.6 [Amended] areas (section 202(a) of the Flood longer comply with the statutory ■ 2. The tables published under the Disaster Protection Act of 1973, 42 requirements, and after the effective authority of § 64.6 are amended as U.S.C. 4106(a), as amended). This date, flood insurance will no longer be follows:

Date certain fed- Community Effective date authorization/cancellation of Current effective eral assistance State and location No. sale of flood insurance in community map date no longer avail- able in SFHAs

Region II New York: Afton, Town of, Chenango County ...... 361084 December 26, 1975, Emerg; October 15, Nov. 26, 2010 Nov. 26, 2010. 1981, Reg; November 26, 2010, Susp. Afton, Village of, Chenango County ...... 360979 March 13, 1975, Emerg; October 15, 1981, ...... *do ...... do. Reg; November 26, 2010, Susp. Bainbridge, Town of, Chenango County 361085 March 18, 1976, Emerg; November 18, ...... do ...... do. 1983, Reg; November 26, 2010, Susp. Bainbridge, Village of, Chenango Coun- 360158 December 4, 1974, Emerg; October 5, ...... do ...... do. ty. 1984, Reg; November 26, 2010, Susp. Columbus, Town of, Chenango County 361086 November 18, 1975, Emerg; April 8, 1983, ...... do ...... do. Reg; November 26, 2010, Susp. Coventry, Town of, Chenango County .. 361375 September 20, 1976, Emerg; October 15, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. German, Town of, Chenango County ... 361587 November 18, 1983, Emerg; September 24, ...... do ...... do. 1984, Reg; November 26, 2010, Susp. Greene, Town of, Chenango County .... 361087 January 12, 1976, Emerg; August 3, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Greene, Village of, Chenango County .. 360159 March 4, 1977, Emerg; August 3, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Guilford, Town of, Chenango County .... 361088 March 4, 1976, Emerg; July 6, 1984, Reg; ...... do ...... do. November 26, 2010, Susp. Lincklaen, Town of, Chenango County 361376 May 14, 1976, Emerg; March 23, 1984, ...... do ...... do. Reg; November 26, 2010, Susp. McDonough, Town of, Chenango Coun- 361377 March 26, 1976, Emerg; June 5, 1985, ...... do ...... do. ty. Reg; November 26, 2010, Susp.

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Date certain fed- Community Effective date authorization/cancellation of Current effective eral assistance State and location No. sale of flood insurance in community map date no longer avail- able in SFHAs

New Berlin, Town of, Chenango County 361303 December 10, 1975, Emerg; June 5, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. New Berlin, Village of, Chenango Coun- 360160 September 11, 1975, Emerg; November 4, ...... do ...... do. ty. 1983, Reg; November 26, 2010, Susp. North Norwich, Town of, Chenango 361089 May 25, 1976, Emerg; August 24, 1984, ...... do ...... do. County. Reg; November 26, 2010, Susp. Norwich, City of, Chenango County ...... 360161 April 26, 1974, Emerg; December 18, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Norwich, Town of, Chenango County... 360162 August 7, 1975, Emerg; November 15, ...... do ...... do. 1984, Reg; November 26, 2010, Susp. Otselic, Town of, Chenango County ..... 361090 June 15, 1976, Emerg; June 5, 1985, Reg; ...... do ...... do. November 26, 2010, Susp. Oxford, Town of, Chenango County ..... 361304 March 21, 1975, Emerg; August 24, 1984, ...... do ...... do. Reg; November 26, 2010, Susp. Oxford, Village of, Chenango County ... 360163 June 4, 1975, Emerg; September 10, 1984, ...... do ...... do. Reg; November 26, 2010, Susp. Pitcher, Town of, Chenango County..... 361092 September 26, 1975, Emerg; March 4, ...... do ...... do. 1986, Reg; November 26, 2010, Susp. Plymouth, Town of, Chenango County 361305 September 30, 1975, Emerg; November 4, ...... do ...... do. 1983, Reg; November 26, 2010, Susp. Preston, Town of, Chenango County .... 361306 December 27, 1976, Emerg; April 1, 1983, ...... do ...... do. Reg; November 26, 2010, Susp. Sherburne, Village of, Chenango Coun- 360164 August 18, 1975, Emerg; September 10, ...... do ...... do. ty. 1984, Reg; November 26, 2010, Susp. Smithville, Town of, Chenango County 361040 April 17, 1980, Emerg; November 4, 1983, ...... do ...... do. Reg; November 26, 2010, Susp. Smyrna, Town of, Chenango County .... 361308 February 2, 1976, Emerg; September 24, ...... do ...... do. 1984, Reg; November 26, 2010, Susp. Smyrna, Village of, Chenango County .. 361378 November 12, 1975, Emerg; October 15, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. Region III Pennsylvania: Barnett, Township of, Forest County .... 421643 March 7, 1977, Emerg; December 1, 1986, ...... do ...... do. Reg; November 26, 2010, Susp. Green, Township of, Forest County ...... 421644 January 16, 1980, Emerg; June 19, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Harmony, Township of, Forest County 421645 August 14, 1975, Emerg; November 5, ...... do ...... do. 1986, Reg; November 26, 2010, Susp. Hickory, Township of, Forest County .... 421646 December 17, 1975, Emerg; November 19, ...... do ...... do. 1986, Reg; November 26, 2010, Susp. Howe, Township of, Forest County ...... 421647 September 16, 1975, Emerg; June 1, 1987, ...... do ...... do. Reg; November 26, 2010, Susp. Jenks, Township of, Forest County ...... 422422 November 1, 1976, Emerg; February 15, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. Kingsley, Township of, Forest County .. 422423 February 25, 1977, Emerg; June 1, 1987, ...... do ...... do. Reg; November 26, 2010, Susp. Tionesta, Borough of, Forest County .... 421648 May 12, 1975, Emerg; November 5, 1986, ...... do ...... do. Reg; November 26, 2010, Susp. Tionesta, Township of, Forest County .. 420468 February 28, 1977, Emerg; February 15, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. Region IV Alabama: Coosa County, Unincorporated Areas .. 010052 August 7, 1975, Emerg; August 15, 1984, ...... do ...... do. Reg; November 26, 2010, Susp. Goodwater, Town of, Coosa County..... 010387 March 25, 2008, Emerg; November 26, ...... do ...... do. 2010, Reg; November 26, 2010, Susp. Mississippi: Abbeville, Town of, Lafayette County ... 280309 February 24, 2010, Emerg; November 26, ...... do ...... do. 2010, Reg; November 26, 2010, Susp. Lafayette County, Unincorporated 280093 N/A, Emerg; December 8, 2006, Reg; No- ...... do ...... do. Areas. vember 26, 2010, Susp. Oxford, City of, Lafayette County ...... 280094 August 30, 1973, Emerg; September 29, ...... do ...... do. 1978, Reg; November 26, 2010, Susp. Tennessee: Bledsoe County, Unincorporated Areas 470219 November 1, 2007, Emerg; March 1, 2008, ...... do ...... do. Reg; November 26, 2010, Susp. Pikeville, City of, Bledsoe County ...... 470011 September 10, 1975, Emerg; May 17, 1988, ...... do ...... do. Reg; November 26, 2010, Susp.

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Date certain fed- Community Effective date authorization/cancellation of Current effective eral assistance State and location No. sale of flood insurance in community map date no longer avail- able in SFHAs

Region V Illinois: Brookport, City of, Massac County ...... 170468 May 23, 1997, Emerg; November 26, 2010, ...... do ...... do. Reg; November 26, 2010, Susp. Massac County, Unincorporated Areas 170467 July 25, 1975, Emerg; July 5, 1983, Reg; ...... do ...... do. November 26, 2010, Susp. Michigan: Bellevue, Village of, Eaton County ...... 260566 August 20, 1975, Emerg; July 3, 1986, Reg; ...... do ...... do. November 26, 2010, Susp. Carmel, Township of, Eaton County ..... 260682 June 11, 1976, Emerg; January 31, 1979, ...... do ...... do. Reg; November 26, 2010, Susp. Charlotte, City of, Eaton County ...... 260065 May 16, 1975, Emerg; July 2, 1981, Reg; ...... do ...... do. November 26, 2010, Susp. Delta, Charter Township of, Eaton 260066 December 5, 1974, Emerg; March 2, 1981, ...... do ...... do. County. Reg; November 26, 2010, Susp. Dimondale, Village of, Eaton County .... 260333 September 21, 1976, Emerg; September ...... do ...... do. 30, 1980, Reg; November 26, 2010, Susp. Eaton Rapids, City of, Eaton County .... 260067 June 18, 1975, Emerg; October 15, 1982, ...... do ...... do. Reg; November 26, 2010, Susp. Eaton Rapids, Township of, Eaton 260391 June 2, 1978, Emerg; December 15, 1983, ...... do ...... do. County. Reg; November 26, 2010, Susp. Grand Ledge, City of, Clinton and 260068 July 18, 1975, Emerg; January 2, 1981, ...... do ...... do. Eaton Counties. Reg; November 26, 2010, Susp. Olivet, City of, Eaton County ...... 260069 September 3, 1975, Emerg; November 9, ...... do ...... do. 1979, Reg; November 26, 2010, Susp. Oneida, Charter Township of, Eaton 260070 December 29, 1978, Emerg; July 16, 1981, ...... do ...... do. County. Reg; November 26, 2010, Susp. Potterville, City of, Eaton County...... 260711 March 9, 1978, Emerg; September 28, ...... do ...... do. 1979, Reg; November 26, 2010, Susp. Windsor, Charter Township of, Eaton 260071 May 20, 1975, Emerg; January 2, 1981, ...... do ...... do. County. Reg; November 26, 2010, Susp. Minnesota: Balaton, City of, Lyon County ...... 270553 July 26, 1974, Emerg; August 19, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Ghent, City of, Lyon County ...... 270257 September 3, 1975, Emerg; June 8, 1984, ...... do ...... do. Reg; November 26, 2010, Susp. Lynd, City of, Lyon County...... 270584 November 8, 1974, Emerg; August 19, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. Lyon County, Unincorporated Areas ..... 270256 June 28, 1974, Emerg; June 1, 1998, Reg; ...... do ...... do. November 26, 2010, Susp. Marshall, City of, Lyon County ...... 270258 March 23, 1973, Emerg; September 30, ...... do ...... do. 1977, Reg; November 26, 2010, Susp. Minneota, City of, Lyon County ...... 270259 April 30, 1974, Emerg; April 6, 2000, Reg; ...... do ...... do. November 26, 2010, Susp. Russell, City of, Lyon County ...... 270600 January 30, 1976, Emerg; July 6, 1984, ...... do ...... do. Reg; November 26, 2010, Susp. Region VI Arkansas: Bellefonte, Town of, Boone County ...... 050018 May 5, 1975, Emerg; November 1, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Bergman, Town of, Boone County ...... 050385 June 27, 1975, Emerg; February 1, 1987, ...... do ...... do. Reg; November 26, 2010, Susp. Boone County, Unincorporated Areas .. 050016 November 1, 1989, Emerg; January 1, ...... do ...... do. 1992, Reg; November 26, 2010, Susp. Clarksville, City of, Johnson County ..... 050112 June 26, 1975, Emerg; September 30, ...... do ...... do. 1982, Reg; November 26, 2010, Susp. Diamond City, City of, Boone County ... 050407 January 13, 1976, Emerg; February 1, ...... do ...... do. 1987, Reg; November 26, 2010, Susp. Harrison, City of, Boone County ...... 050020 December 30, 1971, Emerg; July 16, 1980, ...... do ...... do. Reg; November 26, 2010, Susp. Hartman, Town of, Johnson County ..... 050251 November 10, 2009, Emerg; November 26, ...... do ...... do. 2010, Reg; November 26, 2010, Susp. Lamar, City of, Johnson County ...... 050113 April 3, 1975, Emerg; July 1, 1987, Reg; ...... do ...... do. November 26, 2010, Susp. Louisiana: Church Point, Town of, Acadia Parish .. 220002 June 23, 1975, Emerg; November 5, 1980, ...... do ...... do. Reg; November 26, 2010, Susp. Crowley, City of, Acadia Parish ...... 225195 August 27, 1971, Emerg; June 30, 1972, ...... do ...... do. Reg; November 26, 2010, Susp.

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Date certain fed- Community Effective date authorization/cancellation of Current effective eral assistance State and location No. sale of flood insurance in community map date no longer avail- able in SFHAs

Deridder, City of, Beauregard Parish .... 220027 September 9, 1974, Emerg; October 19, ...... do ...... do. 1982, Reg; November 26, 2010, Susp. Duson, Town of, Acadia and Lafayette 220104 November 11, 1975, Emerg; September 30, ...... do ...... do. Parishes. 1981, Reg; November 26, 2010, Susp. Estherwood, Village of, Acadia Parish .. 220004 June 12, 1975, Emerg; February 4, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Iota, Town of, Acadia Parish ...... 220005 January 21, 1975, Emerg; July 18, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Mermentau, Village of, Acadia Parish ... 220006 January 12, 1976, Emerg; March 2, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Merryville, Town of, Beauregard Parish 220028 November 1, 1974, Emerg; February 1, ...... do ...... do. 1987, Reg; November 26, 2010, Susp. Morse, Village of, Acadia Parish ...... 220007 December 8, 1976, Emerg; April 15, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Rayne, City of, Acadia Parish ...... 220008 August 27, 1974, Emerg; March 2, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Oklahoma: Adair County, Unincorporated Areas .... 400501 February 17, 1987, Emerg; April 1, 1988, ...... do ...... do. Reg; November 26, 2010, Susp. Stillwell, City of, Adair County...... 400001 November 14, 1975, Emerg; August 4, ...... do ...... do. 1987, Reg; November 26, 2010, Susp. Texas: Moulton, City of, Lavaca County ...... 480433 July 13, 1979, Emerg; March 4, 1986, Reg; ...... do ...... do. November 26, 2010, Susp. Wilson County, Unincorporated Areas .. 480230 January 10, 1974, Emerg; March 15, 1978, ...... do ...... do. Reg; November 26, 2010, Susp. Yoakum, City of, Dewitt and Lavaca 480434 October 8, 1981, Emerg; September 1, ...... do ...... do. Counties. 1987, Reg; November 26, 2010, Susp. Region VII Missouri: Butler County, Unincorporated Areas ... 290044 April 26, 1984, Emerg; April 3, 1985, Reg; ...... do ...... do. November 26, 2010, Susp. Concordia, City of, Lafayette County .... 290745 December 17, 1975, Emerg; February 9, ...... do ...... do. 1979, Reg; November 26, 2010, Susp. Emma, City of, Lafayette and Saline 290587 August 26, 1976, Emerg; March 25, 1977, ...... do ...... do. Counties. Reg; November 26, 2010, Susp. Fisk, City of, Butler County ...... 290045 August 8, 1975, Emerg; September 16, ...... do ...... do. 1981, Reg; November 26, 2010, Susp. Granby, City of, Newton County ...... 290263 August 26, 1975, Emerg; July 3, 1985, Reg; ...... do ...... do. November 26, 2010, Susp. Lafayette County, Unincorporated 290812 June 20, 1983, Emerg; September 4, 1986, ...... do ...... do. Areas. Reg; November 26, 2010, Susp. Lexington, City of, Lafayette County ..... 290707 February 17, 1995, Emerg; November 7, ...... do ...... do. 2001, Reg; November 26, 2010, Susp. Neelyville, City of, Butler County ...... 290046 July 3, 1975, Emerg; May 5, 1981, Reg; ...... do ...... do. November 26, 2010, Susp. Neosho, City of, Newton County ...... 290265 April 22, 1975, Emerg; July 5, 1982, Reg; ...... do ...... do. November 26, 2010, Susp. Odessa, City of, Lafayette County ...... 290669 April 29, 1976, Emerg; April 11, 1979, Reg; ...... do ...... do. November 26, 2010, Susp. Poplar Bluff, City of, Butler County ...... 290047 July 29, 1975, Emerg; February 4, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Qulin, City of, Butler County ...... 290048 September 10, 1975, Emerg; October 15, ...... do ...... do. 1981, Reg; November 26, 2010, Susp. Redings Mill, Village of, Newton County 290484 June 5, 1975, Emerg; March 4, 1985, Reg; ...... do ...... do. November 26, 2010, Susp. Saginaw, Village of, Newton County ..... 290486 September 2, 1975, Emerg; September 4, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. Seneca, City of, Newton County ...... 290269 August 30, 1973, Emerg; March 15, 1977, ...... do ...... do. Reg; November 26, 2010, Susp. Nebraska: Amherst, Village of, Buffalo County ...... 310245 June 4, 1975, Emerg; September 27, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Avoca, Village of, Cass and Otoe 310247 August 3, 1979, Emerg; August 3, 1979, ...... do ...... do. Counties. Reg; November 26, 2010, Susp. Buffalo County, Unincorporated Areas .. 310419 July 10, 1986, Emerg; March 1, 1990, Reg; ...... do ...... do. November 26, 2010, Susp. Elm Creek, Village of, Buffalo County ... 310014 November 10, 1975, Emerg; August 19, ...... do ...... do. 1987, Reg; November 26, 2010, Susp.

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Date certain fed- Community Effective date authorization/cancellation of Current effective eral assistance State and location No. sale of flood insurance in community map date no longer avail- able in SFHAs

Gibbon, City of, Buffalo County...... 310015 June 25, 1975, Emerg; September 27, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. Greenwood, Village of, Cass County .... 310374 June 30, 1977, Emerg; June 3, 1980, Reg; ...... do ...... do. November 26, 2010, Susp. Kearney, City of, Buffalo County ...... 310016 June 23, 1975, Emerg; July 5, 1984, Reg; ...... do ...... do. November 26, 2010, Susp. Murray, Village of, Cass County ...... 310305 June 30, 1976, Emerg; January 5, 1978, ...... do ...... do. Reg; November 26, 2010, Susp. Nehawka, Village of, Cass County ...... 310032 April 17, 1975, Emerg; February 15, 1978, ...... do ...... do. Reg; November 26, 2010, Susp. Pleasanton, Village of, Buffalo County .. 310017 May 6, 1975, Emerg; September 27, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Ravenna, City of, Buffalo County ...... 310018 June 16, 1975, Emerg; September 4, 1985, ...... do ...... do. Reg; November 26, 2010, Susp. Shelton, Village of, Buffalo County ...... 310019 October 30, 1975, Emerg; September 27, ...... do ...... do. 1985, Reg; November 26, 2010, Susp. South Bend, Village of, Cass County .... 310034 July 20, 1984, Emerg; July 20, 1984, Reg; ...... do ...... do. November 26, 2010, Susp. Union, Village of, Cass County ...... 310035 March 11, 1975, Emerg; April 3, 1978, Reg; ...... do ...... do. November 26, 2010, Susp. Region IX California: Del Norte County, Unincorporated 065025 September 4, 1970, Emerg; January 24, ...... do ...... do. Areas. 1983, Reg; November 26, 2010, Susp. Region X Idaho: Blaine County, Unincorporated Areas ... 165167 May 14, 1971, Emerg; March 16, 1981, ...... do ...... do. Reg; November 26, 2010, Susp. Bellevue, City of, Blaine County...... 160021 May 29, 1975, Emerg; August 1, 1978, ...... do ...... do. Reg; November 26, 2010, Susp. Carey, City of, Blaine County ...... 160234 N/A, Emerg; March 22, 2006, Reg; Novem- ...... do ...... do. ber 26, 2010, Susp. Hailey, City of, Blaine County ...... 160022 May 28, 1974, Emerg; April 17, 1978, Reg; ...... do ...... do. November 26, 2010, Susp. Ketchum, City of, Blaine County ...... 160023 May 9, 1974, Emerg; June 15, 1978, Reg; ...... do ...... do. November 26, 2010, Susp. Sun Valley, City of, Blaine County ...... 160024 September 6, 1974, Emerg; April 17, 1978, ...... do ...... do. Reg; November 26, 2010, Susp. Oregon: Columbia County, Unincorporated 410034 April 11, 1974, Emerg; August 16, 1988, ...... do ...... do. Areas. Reg; November 26, 2010, Susp. Clatskanie, City of, Columbia County ... 410035 May 21, 1975, Emerg; September 29, 1986, ...... do ...... do. Reg; November 26, 2010, Susp. Columbia City, City of, Columbia Coun- 410036 December 27, 1974, Emerg; June 5, 1985, ...... do ...... do. ty. Reg; November 26, 2010, Susp. Portland, City of, Clackamas, Mult- 410183 May 19, 1972, Emerg; October 15, 1980, ...... do ...... do. nomah, and Washington counties. Reg; November 26, 2010, Susp. Prescott, City of, Columbia County ...... 410037 December 17, 1987, Emerg; August 16, ...... do ...... do. 1988, Reg; November 26, 2010, Susp. Rainier, City of, Columbia County ...... 410038 July 7, 1975, Emerg; August 16, 1988, Reg; ...... do ...... do. November 26, 2010, Susp. Scappoose, City of, Columbia County .. 410039 October 15, 1974, Emerg; August 16, 1988, ...... do ...... do. Reg; November 26, 2010, Susp. St. Helens, City of, Columbia County ... 410040 June 27, 1974, Emerg; September 29, ...... do ...... do. 1986, Reg; November 26, 2010, Susp. Vernonia, City of, Columbia County ...... 410041 April 26, 1974, Emerg; August 16, 1988, ...... do ...... do. Reg; November 26, 2010, Susp. * -do- = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.

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Dated: October 29, 2010. at the office of the Chief Executive 10, Environmental Consideration. An Sandra K. Knight, Officer of each community. The environmental impact assessment has Deputy Federal Insurance and Mitigation respective addresses are listed in the not been prepared. Administrator, Mitigation. table below. Regulatory Flexibility Act. As flood [FR Doc. 2010–28206 Filed 11–8–10; 8:45 am] FOR FURTHER INFORMATION CONTACT: Roy elevation determinations are not within BILLING CODE 9110–12–P E. Wright, Deputy Director, Risk the scope of the Regulatory Flexibility Analysis Division, Federal Insurance Act, 5 U.S.C. 601–612, a regulatory and Mitigation Administration, Federal flexibility analysis is not required. DEPARTMENT OF HOMELAND Emergency Management Agency, 500 C Regulatory Classification. This final SECURITY Street, SW., Washington, DC 20472, rule is not a significant regulatory action (202) 646–3461, or (e-mail) Federal Emergency Management under the criteria of section 3(f) of [email protected]. Agency Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, SUPPLEMENTARY INFORMATION: The 44 CFR Part 67 Federal Emergency Management Agency 58 FR 51735. Executive Order 13132, Federalism. [Docket ID FEMA–2010–0003] (FEMA) makes the final determinations listed below for the modified BFEs for This final rule involves no policies that Final Flood Elevation Determinations each community listed. These modified have federalism implications under elevations have been published in Executive Order 13132. AGENCY: Federal Emergency newspapers of local circulation and Executive Order 12988, Civil Justice Management Agency, DHS. ninety (90) days have elapsed since that Reform. This final rule meets the ACTION: Final rule. publication. The Deputy Federal applicable standards of Executive Order Insurance and Mitigation Administrator 12988. SUMMARY: Base (1% annual-chance) has resolved any appeals resulting from Flood Elevations (BFEs) and modified List of Subjects in 44 CFR Part 67 BFEs are made final for the this notification. This final rule is issued in accordance Administrative practice and communities listed below. The BFEs with section 110 of the Flood Disaster procedure, Flood insurance, Reporting and modified BFEs are the basis for the Protection Act of 1973, 42 U.S.C. 4104, and recordkeeping requirements. floodplain management measures that and 44 CFR part 67. FEMA has each community is required either to ■ Accordingly, 44 CFR part 67 is developed criteria for floodplain adopt or to show evidence of being amended as follows: management in floodprone areas in already in effect in order to qualify or accordance with 44 CFR part 60. remain qualified for participation in the PART 67—[AMENDED] Interested lessees and owners of real National Flood Insurance Program property are encouraged to review the ■ 1. The authority citation for part 67 (NFIP). proof Flood Insurance Study and FIRM continues to read as follows: DATES: The date of issuance of the Flood available at the address cited below for Authority: 42 U.S.C. 4001 et seq.; Insurance Rate Map (FIRM) showing each community. The BFEs and Reorganization Plan No. 3 of 1978, 3 CFR, BFEs and modified BFEs for each modified BFEs are made final in the 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, community. This date may be obtained communities listed below. Elevations at 3 CFR, 1979 Comp., p. 376. by contacting the office where the maps selected locations in each community are available for inspection as indicated are shown. § 67.11 [Amended] in the table below. National Environmental Policy Act. ■ 2. The tables published under the ADDRESSES: The final BFEs for each This final rule is categorically excluded authority of § 67.11 are amended as community are available for inspection from the requirements of 44 CFR part follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) State City/town/county Source of flooding Location # Depth in feet above ground ∧ Elevation in meters (MSL) modified

Unincorporated Areas of Siskiyou County, California Docket Nos.: FEMA–B–7762, FEMA–B–7795, and FEMA–B–1053

California ...... Unincorporated Areas of Siskiyou Oregon Slough ...... City of Montague and Unincorporated +2503 County. Siskiyou County corporate limits...... Approximately 0.4 mile downstream of +2515 Ager Road...... Approximately 325 feet downstream of +2523 Ager Road. California ...... Unincorporated Areas of Siskiyou Panther Creek Shallow flooding areas between #1, #3 County. (shallow flood- Squaw Valley Creek and McCloud ing). River Railroad. California ...... Unincorporated Areas of Siskiyou Panther Creek Approximately 1,200 feet southwest of #2 County. (shallow flood- the intersection of Squaw Valley ing). Road and State Route 89 (flooding extends west towards Modoc Ave- nue).

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) State City/town/county Source of flooding Location # Depth in feet above ground ∧ Elevation in meters (MSL) modified

California ...... Unincorporated Areas of Siskiyou Panther Creek Immediately south of and adjacent to #2 County. Overflow (shal- State Route 89, starting near the low flooding). intersection of Squaw Valley Road and State Route 89 (flooding en- compasses portions of both sides of Squaw Valley Road for approxi- mately 3,000 feet). California ...... Unincorporated Areas of Siskiyou Squaw Valley At the downstream side of Cemetery +3094 County. Creek. Road...... Approximately 100 feet upstream of +3403 McCloud River Railroad. California ...... Unincorporated Areas of Siskiyou Squaw Valley Shallow flooding areas between Cem- #1, #3 County. Creek (shallow etery Road and McCloud River Rail- flooding). road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Siskiyou County Maps are available for inspection at the Siskiyou County Public Health and Community Development Department, 806 South Main Street, Yreka, CA.

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) modified

Cherokee County, Alabama, and Incorporated Areas Docket No.: FEMA–B–1080

Coosa River ...... Approximately 1,080 feet downstream of State Route 35 .. +575 Town of Gaylesville. Approximately 2.0 miles upstream of State Route 35 ...... +579 Weiss Lake ...... Entire shoreline ...... +573 Town of Cedar Bluff.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Town of Cedar Bluff Maps are available for inspection at 3420 Spring Street, Cedar Bluff, AL 35959. Town of Gaylesville Maps are available for inspection at 4740 Main Street, Gaylesville, AL 35973.

City and County of Honolulu, Hawaii Docket No.: FEMA–B–1076

Pacific Ocean ...... Approximately 1,275 feet north of the intersection of Lihue ∧1 City and County of Honolulu. Drive and Plantation Road. Approximately 5,025 feet southeast of the intersection of ∧81 Poipu Drive and Nawilliwilli Street. Pacific Ocean/Pearl Harbor ...... Approximately 700 feet east of the intersection of Wasp #2 City and County of Honolulu. Boulevard and Lexington Boulevard. Approximately 600 feet south of the intersection of Lehua #2 Avenue and Coral Avenue. Approximately 880 feet northwest of the intersection of #1 Kamehameha Street and Kalaloa Street. Approximately 325 feet southeast of the intersection of #2 Ibis Avenue and Heron Avenue.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) modified

Approximately 3,250 feet southwest of the intersection of #2 Plantation Road and Waipio Point Access Road. Approximately 450 feet east of the intersection of 101st ∧1 Street and Heron Avenue. Approximately 1,775 feet southwest of the intersection of ∧11 Signer Boulevard and 2nd Street. Approximately 1,565 feet south of the intersection of Sign- #2 er Boulevard and 2nd Street.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City and County of Honolulu Maps are available for inspection at the Honolulu City and County Emergency Management Department, 650 South King Street, Honolulu, HI 96813.

Vermilion Parish, Louisiana, and Incorporated Areas Docket Nos.: FEMA–B–7773 and FEMA–B–7786

Gulf of Mexico ...... Base Flood Elevation changes of 7 feet in the form of VE- +7 Town of Gueydan. Zones. Gulf of Mexico ...... Base Flood Elevation changes ranging from 9 to 11 feet +9–11 Town of Delcambre. in the form of AE- and VE-Zones. Gulf of Mexico ...... Base Flood Elevation changes ranging from 10 to 13 feet +10–13 Town of Erath. in the form of AE- and VE-Zones. Gulf of Mexico ...... Base Flood Elevations changes ranging from 11 to 18 +11–18 Unincorporated Areas of feet in the form of AE- and VE-Zones. Vermilion Parish. Gulf of Mexico ...... At the confluence of the Gulf of Mexico and Vermilion Bay +15 Unincorporated Areas of Vermilion Parish. Entire coastline east of the intersection with Rollover +17 Bayou. Vermilion Bay ...... At the divergence from the Gulf of Mexico ...... +14 Unincorporated Areas of Vermilion Parish. At the confluence with the Gulf of Mexico ...... +15

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Town of Delcambre Maps are available for inspection at 107 North Railroad Street, Delcambre, LA 70528. Town of Erath Maps are available for inspection at 115 West Edwards Street, Erath, LA 70533. Town of Gueydan Maps are available for inspection at 600 Main Street, Gueydan, LA 70542. Unincorporated Areas of Vermilion Parish Maps are available for inspection at 100 North State Street, Suite 200, Abbeville, LA 70510.

Ransom County, North Dakota, and Incorporated Areas Docket No.: FEMA–B–1053

Sheyenne River ...... Approximately 1,064 feet upstream of the Richland Coun- +990 City of Fort Ransom, City of ty boundary. Lisbon, Unincorporated Areas of Ransom County. Approximately 7,465 feet downstream of State Highway +1160 46.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) modified

ADDRESSES City of Fort Ransom Maps are available for inspection at P.O. Box 17, Fort Ransom, ND 58033. City of Lisbon Maps are available for inspection at P.O. Box 1079, Lisbon, ND 58054. Unincorporated Areas of Ransom County Maps are available for inspection at 204 5th Avenue West, Lisbon, ND 58054.

Crawford County, Ohio, and Incorporated Areas Docket No.: FEMA–B–1078

Sandusky River ...... Approximately 0.8 mile downstream of Gay Street ...... +970 Unincorporated Areas of Crawford County. Approximately 0.6 mile downstream of U.S. Route 30 ...... +985 Zuber Ditch ...... Approximately 0.6 mile upstream of the confluence with +1131 Unincorporated Areas of the Olentangy River. Crawford County. Approximately 900 feet downstream of North Market +1131 Street.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Crawford County Maps are available for inspection at the Crawford County Administration Building, 112 East Mansfield Street, Bucyrus, OH 44820.

Gallia County, Ohio, and Incorporated Areas Docket No.: FEMA–B–1083

Campaign Creek (backwater ef- Approximately 640 feet upstream of Bulaville Pike ...... +571 Unincorporated Areas of fects from Ohio River). Gallia County. Approximately 0.7 mile upstream of Bulaville Pike ...... +571 Clear Fork (backwater effects At the confluence with Raccoon Creek ...... +566 Unincorporated Areas of from Ohio River). Gallia County. Approximately 0.6 mile downstream of State Route 141 ... +566 Little Swan Creek (backwater At the confluence with Swan Creek ...... +561 Unincorporated Areas of effects from Ohio River). Gallia County. Approximately 0.7 mile upstream of the confluence with +561 Swan Creek. Raccoon Creek ...... Approximately 1.9 mile downstream of State Route 160 in +605 Unincorporated Areas of the Village of Vinton. Gallia County, Village of Vinton. Approximately 0.8 mile upstream of State Route 160 in +613 the Village of Vinton. Raccoon Creek (backwater ef- Approximately 0.6 mile upstream of the confluence with +566 Unincorporated Areas of fects from Ohio River). Little Raccoon Creek. Gallia County. Approximately 0.7 mile upstream of Lincoln Pike ...... +566 Swan Creek (backwater effects Approximately 1,020 feet downstream of Swan Creek +561 Unincorporated Areas of from Ohio River). Road. Gallia County. Approximately 1,360 feet downstream of Peters Branch +561 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Gallia County Maps are available for inspection at 111 Jackson Pike, Suite 1569, Gallipolis, OH 45631. Village of Vinton Maps are available for inspection at 111 Jackson Pike, Suite 1569, Gallipolis, OH 45631.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities above ground affected ∧ Elevation in meters (MSL) modified

Huron County, Ohio, and Incorporated Areas Docket No.: FEMA–B–1080

East Branch Huron River ...... Approximately 50 feet downstream of Norfolk and West- +666 Unincorporated Areas of ern Railroad. Huron County. Approximately 0.5 mile downstream of West Main Street .. +672 Approximately 50 feet downstream of West Main Street ... +674 Just downstream of State Route 61 ...... +677 Norwalk Creek ...... Just downstream of State Route 61 ...... +677 Unincorporated Areas of Huron County. Approximately 1,800 feet upstream of State Route 61 ...... +680 Norwalk Creek ...... Approximately 700 feet downstream of Southwest Street .. +688 City of Norwalk, Unincor- porated Areas of Huron County. Approximately 400 feet downstream of East Elm Street .... +709

* National Geodetic Vertical Datum + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Norwalk Maps are available for inspection at 38 Whittlesey Avenue, Norwalk, OH 44857. Unincorporated Areas of Huron County Maps are available for inspection at 8 Fair Road, Norwalk, OH 44857.

(Catalog of Federal Domestic Assistance No. already in effect in order to qualify or publication. The Deputy Federal 97.022, ‘‘Flood Insurance.’’) remain qualified for participation in the Insurance and Mitigation Administrator Dated: October 29, 2010. National Flood Insurance Program has resolved any appeals resulting from Sandra K. Knight, (NFIP). this notification. Deputy Federal Insurance and Mitigation DATES: The date of issuance of the Flood This final rule is issued in accordance Administrator, Mitigation, Department of Insurance Rate Map (FIRM) showing with section 110 of the Flood Disaster Homeland Security, Federal Emergency BFEs and modified BFEs for each Protection Act of 1973, 42 U.S.C. 4104, Management Agency. community. This date may be obtained and 44 CFR part 67. FEMA has [FR Doc. 2010–28227 Filed 11–8–10; 8:45 am] by contacting the office where the maps developed criteria for floodplain BILLING CODE 9110–12–P are available for inspection as indicated management in floodprone areas in in the table below. accordance with 44 CFR part 60. Interested lessees and owners of real ADDRESSES: The final BFEs for each DEPARTMENT OF HOMELAND property are encouraged to review the community are available for inspection SECURITY proof Flood Insurance Study and FIRM at the office of the Chief Executive available at the address cited below for Officer of each community. The Federal Emergency Management each community. The BFEs and respective addresses are listed in the Agency modified BFEs are made final in the table below. communities listed below. Elevations at 44 CFR Part 67 FOR FURTHER INFORMATION CONTACT: Roy selected locations in each community [Docket ID FEMA–2010–0003] E. Wright, Deputy Director, Risk are shown. Analysis Division, Federal Insurance National Environmental Policy Act. Final Flood Elevation Determinations and Mitigation Administration, Federal This final rule is categorically excluded Emergency Management Agency, 500 C from the requirements of 44 CFR part AGENCY: Federal Emergency Street, SW., Washington, DC 20472, Management Agency, DHS. 10, Environmental Consideration. An (202) 646–3461, or (e-mail) environmental impact assessment has ACTION: Final rule. [email protected]. not been prepared. SUMMARY: Base (1% annual-chance) SUPPLEMENTARY INFORMATION: The Regulatory Flexibility Act. As flood Flood Elevations (BFEs) and modified Federal Emergency Management Agency elevation determinations are not within BFEs are made final for the (FEMA) makes the final determinations the scope of the Regulatory Flexibility communities listed below. The BFEs listed below for the modified BFEs for Act, 5 U.S.C. 601–612, a regulatory and modified BFEs are the basis for the each community listed. These modified flexibility analysis is not required. floodplain management measures that elevations have been published in Regulatory Classification. This final each community is required either to newspapers of local circulation and rule is not a significant regulatory action adopt or to show evidence of being ninety (90) days have elapsed since that under the criteria of section 3(f) of

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Executive Order 12866 of September 30, List of Subjects in 44 CFR Part 67 Authority: 42 U.S.C. 4001 et seq.; 1993, Regulatory Planning and Review, Administrative practice and Reorganization Plan No. 3 of 1978, 3 CFR, 58 FR 51735. procedure, Flood insurance, Reporting 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. Executive Order 13132, Federalism. and recordkeeping requirements. This final rule involves no policies that ■ Accordingly, 44 CFR part 67 is have federalism implications under § 67.11 [Amended] Executive Order 13132. amended as follows: ■ 2. The tables published under the Executive Order 12988, Civil Justice PART 67—[AMENDED] Reform. This final rule meets the authority of § 67.11 are amended as applicable standards of Executive Order ■ 1. The authority citation for part 67 follows: 12988. continues to read as follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground ∧ Elevation in me- ters (MSL) modified

Baxter County, Arkansas, and Incorporated Areas Docket No.: FEMA–B–1064

North Fork River ...... At the confluence with the White River ...... +398 City of Norfork, City of Salesville, Unincorporated Areas of Baxter County. Just downstream of State Highway 177 ...... +398 Tributary 1 to Dodd Creek ...... At the confluence with Dodd Creek ...... +785 City of Mountain Home. Approximately 505 feet upstream of Burnett Drive ...... +834

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Mountain Home Maps are available for inspection at 720 South Hickory Street, Mountain Home, AR 72653. City of Norfork Maps are available for inspection at 49 City Hall Circle, Norfork, AR 72653. City of Salesville Maps are available for inspection at 46 Salesville Circle, Salesville, AR 72653. Unincorporated Areas of Baxter County Maps are available for inspection at the Baxter County Courthouse, 1 East 7th Street, Mountain Home, AR 72653.

Clare County, Michigan (All Jurisdictions) Docket No.: FEMA–B–1069

Budd Lake ...... Entire shoreline ...... +1114 City of Harrison, Township of Hayes. Doc and Tom Lake ...... Entire shoreline ...... +1067 Township of Freeman. Eight Point Lake ...... Entire shoreline ...... +1053 Township of Garfield. Grass Lake ...... Entire shoreline ...... +1081 Township of Freeman. Lake Shamrock ...... Entire shoreline ...... +826 City of Clare, Township of Grant. Surrey Lake ...... Entire shoreline ...... +958 Township of Surrey.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Clare Maps are available for inspection at 202 West 5th Street, Clare, MI 48617. City of Harrison Maps are available for inspection at 229 East Beech Street, Harrison, MI 48625. Township of Freeman Maps are available for inspection at 7280 West Mannsiding Road, Lake, MI 48632. Township of Garfield Maps are available for inspection at 9348 Terry Street, Lake, MI 48632. Township of Grant Maps are available for inspection at 3022 Surrey Road, Clare, MI 48617. Township of Hayes

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground ∧ Elevation in me- ters (MSL) modified

Maps are available for inspection at 2051 East Townline Lake Road, Harrison, MI 48625. Township of Surrey Maps are available for inspection at 110 East Michigan Street, Farwell, MI 48622.

San Miguel County, New Mexico, and Incorporated Areas Docket No.: FEMA–B–1069

Arroyo Hermanos ...... At the confluence with Gallinas Creek ...... +6448 City of Las Vegas. Just downstream of Lopez Street ...... +6493 Arroyo Pajarito ...... At the confluence with Gallinas Creek ...... +6415 City of Las Vegas. Just downstream of Salazar Street ...... +6476 Arroyo Pecos ...... Approximately 0.8 mile downstream of East Frontage +6381 City of Las Vegas, Unincor- Road. porated Areas of San Miguel County. Just upstream of Las Vegas Boulevard ...... +6458 Gallinas Creek ...... Just upstream of I–25 ...... +6381 City of Las Vegas, Unincor- porated Areas of San Miguel County. Approximately 0.4 mile downstream of El Camino Road ... +6515

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Las Vegas Maps are available for inspection at the San Miguel County Office of Planning and Zoning, 500 West National Avenue, 3rd Floor, Las Vegas, NM 87701. Unincorporated Areas of San Miguel County Maps are available for inspection at the San Miguel County Assessor’s Office, 500 West National Avenue, Suite 105, Las Vegas, NM 87701.

Cuyahoga County, Ohio, and Incorporated Areas Docket No.: FEMA–B–1053

Anthony Lake Tributary ...... Approximately 425 feet downstream of Anthony Lane ...... +897 City of Parma, City of Parma Heights. Approximately 140 feet upstream of Anthony Lane ...... +902 Big Creek ...... Approximately 300 feet downstream of Ridge Road ...... +679 City of Brooklyn. Approximately 1,100 feet upstream of Ridge Road ...... +695 Chagrin River ...... Approximately 0.5 mile upstream of Rogers Road ...... +683 Village of Mayfield. Chagrin River ...... Approximately 40 feet upstream of Woodland Road ...... +786 Village of Moreland Hills. Approximately 1,200 feet upstream of Woodland Road ..... +789 Approximately 850 feet downstream of Miles Road ...... +851 Approximately 1,200 feet upstream of Miles Road ...... +860 Countrymans Creek ...... Upstream of I–71 ...... +721 Village of Lindale. Downstream of Bellaire Road ...... +727 Cuyahoga River ...... Approximately 40 feet upstream of Brecksville Road ...... +605 City of Garfield Heights. Approximately 700 feet upstream of Brecksville Road ...... +607 Doan Brook ...... Approximately 160 feet upstream of Martin Luther King Jr. +777 City of Cleveland Heights. Drive. Approximately 130 feet upstream of West Woodland Road +915 Dover Ditch ...... Approximately 150 feet downstream of Harding Drive ...... +724 City of North Olmsted. Gifford-Avon Ditch ...... Approximately 100 feet upstream of Naigle Road ...... +629 City of Westlake. Approximately 0.5 mile upstream of Naigle Road ...... +629 Lake Erie ...... Entire shoreline within the Cities of Bay Village, Cleve- +576 City of Bay Village, City of land, and Lakewood. Cleveland, City of Lake- wood. Mill Creek ...... Approximately 30 feet downstream of McCracken Road ... +841 City of Maple Heights. Approximately 390 feet upstream of McCracken Road ...... +841 Plum Creek ...... Mouth at West Branch Rocky River ...... +710 City of Olmsted Falls, Unin- corporated Areas of Cuya- hoga County. Approximately 70 feet downstream of Sprague Road ...... +780 Rocky River ...... Approximately 1,100 feet upstream of Detroit Road ...... +580 City of Cleveland, City of Rocky River. Approximately 3,500 feet upstream of River Road ...... +606

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground ∧ Elevation in me- ters (MSL) modified

Tinkers Creek Tributary 1 ...... Approximately 0.3 mile upstream of Walton Road ...... +930 City of Bedford. West Branch Rocky River ...... Approximately 1.1 mile downstream of Water Street ...... +682 City of Olmsted Falls, Unin- corporated Areas of Cuya- hoga County. At Sprague Road ...... +753

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Bay Village Maps are available for inspection at 350 Dover Center Road, Bay Village, OH 44140. City of Bedford Maps are available for inspection at 165 Center Road, Bedford, OH 44146. City of Brooklyn Maps are available for inspection at 7619 Memphis Avenue, Brooklyn, OH 44144. City of Cleveland Maps are available for inspection at 601 Lakeside Avenue, Cleveland, OH 44144. City of Cleveland Heights Maps are available for inspection at 40 Severance Circle, Cleveland Heights, OH 44118. City of Garfield Heights Maps are available for inspection at 5407 Turney Road, Garfield Heights, OH 44125. City of Lakewood Maps are available for inspection at 12650 Detroit Avenue, Lakewood, OH 44107. City of Maple Heights Maps are available for inspection at 5353 Lee Road, Maple Heights, OH 44137. City of North Olmsted Maps are available for inspection at 5200 Dover Center Road, North Olmsted, OH 44070. City of Olmsted Falls Maps are available for inspection at 26100 Bagley Road, Olmsted Falls, OH 44138. City of Parma Maps are available for inspection at 6611 Ridge Road, Parma, OH 44129. City of Parma Heights Maps are available for inspection at 6281 Pearl Road, Parma Heights, OH 44130. City of Rocky River Maps are available for inspection at 21012 Hillard Boulevard, Rocky River, OH 44116. City of Westlake Maps are available for inspection at 27700 Hillard Boulevard, Westlake, OH 44145. Unincorporated Areas of Cuyahoga County Maps are available for inspection at 323 Lakeside Avenue, Suite 400, Cleveland, OH 44113. Village of Lindale Maps are available for inspection at 4016 West 119th Street, Lindale, OH 44135. Village of Mayfield Maps are available for inspection at 6622 Wilson Mills Road, Mayfield, OH 44143. Village of Moreland Hills Maps are available for inspection at 4350 S.O.M. Center Road, Moreland Hills, OH 44022.

Kent County, Rhode Island (All Jurisdictions) Docket No.: FEMA–B–1078

Maskerchugg River ...... Approximately 750 feet downstream of State Route 1A +15 City of Warwick, Town of (Boston Post Road). East Greenwich. Approximately 45 feet upstream of Division Street ...... +75 North Branch Pawtuxet River Approximately 530 feet downstream of State Route 116 +183 Town of Coventry. (Upper Reach). (located in Providence County). Approximately 240 feet downstream of State Route 116 +185 (located in Providence County).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground ∧ Elevation in me- ters (MSL) modified

ADDRESSES City of Warwick Maps are available for inspection at the City Hall-Annex Building, Planning Department, 3275 Post Road, 2nd Floor, Warwick, RI 02886. Town of Coventry Maps are available for inspection at the Public Works Department, 1688 Flat River Road, Coventry, RI 02816. Town of East Greenwich Maps are available for inspection at the Department of Public Works, 111 Pierce Street, East Greenwich, RI 02818.

Cannon County, Tennessee, and Incorporated Areas Docket No.: FEMA–B–1065

East Fork Stones River ...... Approximately 80 feet downstream of the confluence with +690 Unincorporated Areas of Lehman Branch. Cannon County. Approximately 40 feet upstream of Doolittle Road ...... +706

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES Unincorporated Areas of Cannon County Maps are available for inspection at 1 Courthouse Square, Woodbury, TN 37190.

Gonzales County, Texas, and Incorporated Areas Docket No.: FEMA–B–1069

Baldridge Creek ...... Approximately 1 mile downstream of State Highway 97 .... +350 Unincorporated Areas of Gonzales County. Approximately 1,400 feet upstream of U.S. Route 90 West +368 Guadalupe River ...... At the confluence with Tinsley Creek ...... +278 City of Gonzales, Unincor- porated Areas of Gonzales County. Approximately 1.4 mile downstream of County Road 466 +286 Tinsley Creek ...... Approximately 530 feet upstream of Weimer Street ...... +294 City of Gonzales. Just upstream of Sarah DeWitt Drive ...... +303

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ADDRESSES City of Gonzales Maps are available for inspection at P.O. Box 547, Gonzales, TX 78629. Unincorporated Areas of Gonzales County Maps are available for inspection at 414 Saint Joseph Street, Gonzales, TX 78629.

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(Catalog of Federal Domestic Assistance No. for the public meetings are listed under (a)(7)) and five State manatee protection 97.022, ‘‘Flood Insurance.’’) the Public Participation section of this zones (as described in Chapter 68C–22, Dated: October 29, 2010. rule. ‘‘The Florida Manatee Sanctuary Act’’ Sandra K. Knight, FOR FURTHER INFORMATION CONTACT: Jim (2010)). This network of manatee Deputy Federal Insurance and Mitigation Valade, Florida Manatee Recovery Lead, protection areas is enforced by Service, Administrator, Mitigation, Department of (see ADDRESSES section), telephone 904/ State, and local law enforcement Homeland Security, Federal Emergency 731–3336. officers. Extensive outreach and education programs support the Management Agency. SUPPLEMENTARY INFORMATION: [FR Doc. 2010–28228 Filed 11–8–10; 8:45 am] protection area network, encouraging BILLING CODE 9110–12–P Background the public who engage in manatee The Crystal River is a tidal river on viewing activities to avoid harassing the west coast of Florida. Forming the manatees. DEPARTMENT OF THE INTERIOR headwaters of Crystal River is Kings This network of existing manatee Bay, a lake-like waterbody fed by protection areas was designed to prevent the take of manatees caused by Fish and Wildlife Service numerous fresh-water springs. The waterborne activities, including but not Kings Bay springs constitute one of the limited to, boating and manatee viewing 50 CFR Part 17 most important natural warm-water activities. It was established to allow refuges for manatees. The West Indian [Docket No. FWS–R4–ES–2010–0079; manatees to continue to gain access to manatee (Trichechus manatus) is 92220–1113–0000–C3] critical warm-water areas and important federally listed as an endangered resting and foraging areas. Take, as RIN 1018–AX27 species under the Endangered Species defined by section 3(19) of the ESA, Act of 1973, as amended (ESA) (16 Endangered and Threatened Wildlife means to harass, harm, pursue, hunt, U.S.C. 1531 et seq.) and the population and Plants; Emergency Rule To shoot, wound, kill, trap, capture, collect, Establish a Manatee Refuge in Kings is further protected as a depleted stock or to attempt to engage in any such Bay, Citrus County, FL under the Marine Mammal Protection conduct. ‘‘Harm’’ is further defined by Act of 1972, as amended (MMPA) (16 regulation at 50 CFR 17.3 to mean an act AGENCY: Fish and Wildlife Service, U.S.C. 1361 et seq.). The West Indian which actually kills or injures wildlife. Interior. manatee includes two subspecies: The ‘‘Harass’’ is also defined by regulation to ACTION: Emergency rule. Florida manatee (Trichechus manatus mean any intentional or negligent act or latirostris) and the Antillean manatee omission which creates the likelihood of SUMMARY: This emergency rule (Trichechus manatus manatus). The establishes a manatee refuge in Citrus injury to wildlife by annoying it to such Florida manatee’s range includes Kings an extent as to significantly disrupt County, Florida, in the waters of Kings Bay. Bay, including its tributaries and normal behavioral patterns, which Kings Bay is actively used by a include, but are not limited to, breeding, connected waters because we, the U.S. growing population of manatees that Fish and Wildlife Service (Service), feeding, or sheltering (50 CFR 17.3). now numbers in the hundreds of Take, as defined by section 3(13) of the have determined that there is individuals (reaching 565 individuals in substantial evidence that there is MMPA, means to harass, hunt, capture, 2010) (Kleen 2010, pers. com.). or kill, or attempt to harass, hunt, imminent danger of a taking of one or Manatees primarily use the area in more manatees (Trichechus manatus) in capture, or kill any marine mammal. Kings Bay as a wintering site, relying on Under section 3(18) of the MMPA, these waters. This emergency action is the bay’s natural springs and adjacent effective for 120 days. We will initiate harassment is defined to include any act forage areas for warmth and sustenance. of pursuit, torment, or annoyance, the rulemaking process to establish a When Gulf of Mexico water which (i) has the potential to injure a permanent manatee refuge in this area, ° temperatures drop to about 68 F (20 marine mammal or marine mammal including holding the first of several ° C), manatees looking for warmer water stock in the wild; or (ii) has the public meetings, within 10 days of the will begin showing up regularly in potential to disturb a marine mammal or publication of this rule. Kings Bay around November 15 and marine mammal stock in the wild by DATES: This action will be effective from tend to stay until about March 31; this causing disruption of behavioral November 15, 2010 through March 15, is the identified ‘‘manatee season’’ when patterns, including, but not limited to, 2011, and the effective date for this local manatee sanctuaries are in effect. migration, breathing, nursing, breeding, action was also issued through a legal Occasionally, manatees will appear in feeding, or sheltering. All takings, notice published in the Citrus County the region earlier with the advent of an including takings by harassment, are Chronicle on November 9, 2010, in early winter and may remain in the prohibited. accordance with 50 CFR 17.106. The region longer, following severe or The Service can minimize take dates for the public meetings are listed extended winters. When the weather through the designation of manatee under the Public Participation section of begins to warm around the end of protection areas in the form of either a this rule. March, manatees generally move away manatee refuge or a manatee sanctuary. ADDRESSES: The complete file for this from the springs and Kings Bay, Regulations authorizing designation of rule is available for inspection, by traveling to summer foraging areas along manatee refuges and sanctuaries in areas appointment, during normal business Florida’s west coast. where prohibitions or restrictions on hours at North Florida Ecological Over the last 30 years (1980–2010), certain waterborne activities are needed Services Field Office, U.S. Fish and the Service and the State of Florida have to prevent the take of manatees are Wildlife Service, 7915 Baymeadows created a network of manatee protection codified in 50 CFR 17 subpart J. A Way, Suite 200, Jacksonville, Florida areas within the Kings Bay area. During manatee refuge is defined as an area in 32256. Supplementary documents may the manatee season, this network which the Director has determined that: be obtained via the Internet at http:// includes seven Federal manatee (1) Certain waterborne activities will www.regulations.gov in Docket No. sanctuaries (which are described in our take one or more manatees; or (2) certain FWS–R4–ES–2010–0079. The addresses regulations at 50 CFR 17.108(a)(1)– waterborne activities must be restricted

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to prevent the take of one or more Waterborne activities, including revenues and tourist tax revenues, have manatees, including but not limited to manatee viewing activities, and their increased by 178 percent and 214 taking by harassment. A manatee effects on manatees have been percent, respectively, over the past 10 sanctuary is an area where it has been investigated in Kings Bay (Hartman years, suggesting an increase in the determined that any waterborne activity 1979, p. v; Packard 1983, p. i; Kochman number of visitors to the area (U.S. will result in the taking of one or more et al. 1985, p. 921; Buckingham 1990b, Census Bureau 2010 Web site). Tourism manatees, including but not limited to p. 1; Buckingham et al. 1999, p. 514; surveys suggest that about half of all a taking by harassment (50 CFR 17.102). Meigs-Friend 2003, p. 1; Sorice et al. visitors to the area come to Citrus Waterborne activities that occur on 2003, p. 319; King and Heinen 2004, p. County to enjoy water-based activities the Service’s Crystal River National 227; Berger 2007, p. 1). Researchers that include manatee viewing, Wildlife Refuge (NWR) property in described individual manatee responses snorkeling, and diving (Gold 2008, pp. Kings Bay that are known to take to the presence of people in the water: 4–5). manatees are restricted pursuant to 50 Manatees generally avoided people; In January 2010, Crystal River NWR CFR 17 subpart J and the National some approached people with curiosity researchers counted 646 manatees in Wildlife Refuge Improvement Act (16 and then left; and some manatees Citrus County’s coastal waters, U.S.C. 668dd–668ee), which allows the approached and solicited interactions including 565 manatees in Kings Bay. Service to issue special-use permits for with people (Hartman 1979, pp. 128– This is the highest number of manatees commercial and retail activities that 130; Buckingham 1990b, pp. 28–29). ever counted in this region and in Kings occur on NWR property. The Banana Some manatees appeared to become Bay (Kleen 2010, pers. com.). Wintering Island Manatee Sanctuary, designated more tolerant of people through regular manatees have been counted by aerial under 50 CFR part 17 subpart J, encounters. Researchers described survey in the region since the 1983– prohibits all waterborne activities from swimmer encounters that disturbed 1984 winter, when 142 manatees, occurring on some submerged lands manatees: Pursuit, riding, diving from including 124 in Kings Bay and Crystal owned by this NWR. Commercial and the surface on to manatees, sounds from River, were first observed (Kleen 2010, retail activities that occur on NWR- scuba regulators, bright lights from pers. com.). The manatee population in owned land include manatee viewing, underwater videographers, and others Florida’s Northwest Region grew at a diving, snorkeling, videography, and (Hartman 1979, p. 131; Buckingham rate of 4.0 percent per year through others. Businesses wanting to engage in 1990b, p. 29; Sorice et al. 2003, pp. 328– 2000, based on an assessment of adult these activities on NWR property obtain 333; King and Heinen 2004, pp. 228– survival rates (Runge et al. 2004, p. 371). special-use permits from Crystal River 232). On a more subtle level, manatees In the State’s northwest region, adult NWR. These permits are conditioned to were observed to move from preferred manatee mortality is almost equally partitioned between human-related and require permittees to take those steps use areas to other areas in response to natural causes, with watercraft needed to make sure that their activities increasing numbers of boats and people collisions being the leading cause of and those of their customers do not (Kochman et al. 1985, pp. 922–924; human-induced mortality. For harass or otherwise take manatees. Buckingham 1990b, pp. 16–17; Citrus County’s coastal waters, nonadults, perinatal mortality is the Buckingham et al. 1999, p. 514). In including the waters of Kings Bay, are most common cause of death, with particular, manatees tended to move used for a variety of water-based watercraft collisions ranked second. into sanctuary or no-entry areas in the recreational and commercial activities, Each year, manatees are injured and/or presence of increasing numbers of boats including: Manatee viewing, snorkeling killed by watercraft in Citrus County. and people (Kochman et al. 1985, pp. and scuba diving, boating, canoeing and From 1974–2009, 58 manatees died 922–924; Buckingham 1990b, pp. 16–17; kayaking, fishing, waterskiing, and other from collisions with watercraft in activities. Both Citrus County residents Buckingham et al. 1999, pp. 514; King county waterways, including 15 and visitors to the area engage in these and Heinen 2004, pp. 231–232). manatees in Kings Bay. In 2008, the activities. These activities are an The number of people, boats, and Florida Fish and Wildlife Conservation important source of income for the area. manatees has been increasing in the Commission (FWC) recorded the highest Local eco-tour operators, dive shops, west Florida coast region. In Citrus number (8) of manatees ever killed by marinas, hotels and motels, restaurants, County, home to Kings Bay, the number watercraft in Citrus County (FWC FWRI and other businesses benefit from these of Citrus County residents increased by Manatee Mortality Database 2010 Web activities (Buckingham 1990b, p. 6). 19.8 percent, from 118,085 to 141,416, site). Watercraft-related deaths occur Kings Bay and its clear waters have over the 2000–2008 period (U.S. Census throughout the year in this region, catered to the scuba diving industry for Bureau 2010 Web site). Concurrent with including Kings Bay. To reduce the decades (Kochman et al. 1983, p. 6). this increase in number of residents, the number of watercraft-related collisions Beginning in the 1960s, the increasing number of boats registered in Citrus with manatees, boaters must adhere to presence of manatees generated a County increased by 36.2 percent. In State manatee-protection-zone speed commercial interest in manatee viewing 2009, there were 17,601 boats registered restrictions, enforced by Service, State, activities (Hartman 1979, pp. 126–131). in Citrus County, an increase of 4,675 and local law enforcement agencies. Local dive shops and others in the boats since 2000, when 12,926 vessels Additional no-entry areas created by community developed and now cater to were registered there (FDHSMV 2010 this rulemaking will supplement efforts individuals wanting to view manatees Web site). While the number of visitor- to reduce this source of mortality. (Sorice et al. 2003, p. 327). Kings Bay is owned watercraft that use Citrus County The impacts of encounters with now a nationally and internationally waterways, including Kings Bay, is manatees have been investigated in recognized destination for winter-time unknown, this number is likely Citrus County for many years. Manatee manatee viewing. In 2001, more than increasing, based on county revenue responses to viewing participants and 100,000 individuals were thought to trends that describe an increasing boats have been documented (Sorice et visit the area to view manatees (MMC number of visitors to the area. Revenue al. 2003, p. 324). Researchers noted 2001, p. 125); the number of trends associated with businesses that increases in swimming, milling, and participants has likely increased since cater to visitors, including Citrus cavorting behaviors and decreases in then. County lodging and food service resting, feeding, and nursing behaviors

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when numbers of people and boats Kings Bay sanctuaries, already filled to NWR is increasing (Lusk 2010, pers. increased (Abernathy 1995, pp. 23–26; capacity with wintering manatees com.). The presence of increasing Wooding 1997, p. 1; King and Heinen (Kleen 2010, pers. com.). Manatees have numbers of manatees just outside of 2004, pp. 230–231). They also observed been harassed in areas that are outside sanctuary boundaries, where they are that increases in numbers of boats and the boundaries of the existing more accessible to increasing numbers participants prompted manatees to use sanctuaries (Aloise 2010, pers. com.), of people who come to view manatees, other areas (Kochman et al. 1985, pp. and acts of harassment are likely to provides increasing opportunities for 922–924; Buckingham et al. 1999, p. increase in the absence of additional harassment to occur. While the existing 514). However, none of these studies’ measures. Pursuant to our authorities to network does provide a level of observations of manatee responses to designate manatee protection measures protection for wintering manatees, the viewing participants and boats suggest whenever substantial evidence exists of network, in its current condition, is that harm (killing or injuring of an imminent danger of a taking, unable to provide the level of protection manatees) has occurred or is occurring including harassment, of one or more needed to prevent increasing acts of (Sorice et al. 2003, p. 320). Nor have manatees, we believe that this harassment from occurring in the face of there been any significant increases in emergency rulemaking is needed to increasing numbers of manatees and the number of cold-related injuries and prevent such take. manatee viewing participants. mortalities in the northwest Florida Additional measures used to address To further prevent acts of harassment region, and manatee survival rates are manatee harassment, include, additional and other forms of take from occurring among the highest in Florida (FWC law enforcement, increasing and in Kings Bay, through this emergency FWRI Manatee Mortality Database 2010 improved outreach and education rule, we designate the entire area as a Web site; Runge et al. 2007, p. 20). efforts including on-water volunteer manatee refuge. The areas covered by Manatee harassment, largely efforts to educate manatee viewers, this emergency rule are shown in the associated with wintertime manatee improved coordination with local eco- map in the rule portion of this viewing activities, is known to occur, tour operators, special-use permits, and document. With this designation, we and the Service, State, and other law land acquisition and management will implement measures that will enforcement agencies actively enforce activities. improve our ability to address potential harassment laws in Citrus County and Researchers believe that manatee take associated with manatee viewing in Kings Bay. Cited acts of harassment protection areas, which can include and other activities. These protection include trespass by individuals viewing sanctuaries or refuges, when combined measures will establish, as needed, manatees into manatee sanctuaries with law enforcement, good outreach additional no-entry areas outside of and where the Service has determined that and education messages and efforts, and within specified distances from existing any waterborne activity occurring some limitations on activities and manatee sanctuaries where all within these areas will result in take of participant numbers, are an effective waterborne activities, including manatees, including but not limited to tool for reducing adverse effects swimming, diving (including skin and take by harassment. Outside of these associated with manatee viewing scuba diving), snorkeling, water skiing, areas, the public disturbs and activities (Kraus 2003, pers. com.; surfing, fishing, and the use of water occasionally harasses manatees while Buckingham et al. 1990a, pp. 58–63). vehicles (including but not limited to engaged in viewing and other However, the effectiveness of these boats powered by engine, wind or other waterborne activities. When observed, measures is diminished when: (1) means; ships powered by engine, wind violators are warned or cited. Given Existing sanctuaries cannot provide or other means; barges, surfboards, variations in enforcement practices and enough space for all manatees seeking to personal watercraft, water skis, and any recordkeeping systems, numbers and use them; (2) limited numbers of other devices or mechanisms capable of trends in numbers of issued warnings enforcement officers are available to locomotion on, across, or underneath and citations are difficult to interpret. enforce regulations; (3) there are the surface of the water) are prohibited As such, these records are not used to conflicting and inadequate education from November 15 to March 15. We will describe trends in harassment activity. and outreach efforts and; (4) the also restrict and/or prohibit specific Indirectly, the presence of large Service’s ability to control the number actions known to take manatees in numbers of people in the vicinity of of people who come to view manatees Kings Bay outside of existing manatee manatees may cause some animals to is limited (Kraus 2003, pers. com.; sanctuaries, like riding or attempting to abandon the area, another form of Sorice et al. 2006, pp. 69–83). ride a manatee. harassment. At present, the current sanctuaries do Increasing numbers of manatees, Increasing numbers of in-water not provide adequate space for all increasing levels of human activities visitors to Kings Bay and an absence of manatees wanting to use these sites. known to take manatees, and an adequate space at wintering areas in Observations from both aerial survey outdated protected area network for which manatees can shelter free from and on-water observers describe dozens addressing manatee harassment-related harassment and other forms of take of manatees unable to access takings in Kings Bay prompts the need prompt the need for this emergency overcrowded sanctuaries (Kleen 2010, to implement additional measures now designation. Without sufficient space pers. com.; Lusk 2010, pers. com.). This so that adequate protections will be in within the existing Kings Bay increase in the number of manatees place in time for the start of the sanctuaries to shelter, rest, and feed free unable to access the sanctuaries is upcoming winter manatee season. The from harassment, manatees are at risk consistent with the recent record high existing protected area network was last when exposed to cold temperatures for count of manatees (565) in Kings Bay in modified 14 years ago in 1998, when a any length of time. The numbers of January 2010. Similarly, the number of high count of 250 manatees was visitors and manatees have increased residents, visitors, and boats in the area, observed in Kings Bay. Since that time, since 1998 when the last sanctuary was including those who engage in manatee the number of manatees using Kings Bay designated in Kings Bay (63 FR 55553; viewing activities, has increased. While has more than doubled, the number of October 16, 1998), and researchers have not quantified, the number of public Citrus County residents has increased documented dozens of manatees outside reports of purported manatee by almost 20 percent, the number of the boundaries of the seven existing harassment received by Crystal River locally registered boats has increased by

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36 percent, and the number of people of the confluence of the Crystal River (1) Tuesday, November 16, 2010, from coming to view manatees in Crystal and Kings Bay. This designation of an 6 to 9 p.m.; and River exceeds the estimated 100,000 emergency manatee refuge will not (2) Thursday, November 18, 2010, visitors who came to see manatees in change the boundaries of the existing from 6 to 9 p.m. 1998. Increasing numbers of manatees manatee sanctuaries in Kings Bay. See Next, we will hold two, non-decision and members of the public engaged in map below in the rule portion of this making, informal public meetings to manatee viewing activities are document. discuss the process of formally overwhelming the manatee protection When we initiate proceedings to establishing Kings Bay as a manatee area network. Additional protection develop a proposed rule to establish the refuge. The purpose of these informal measures need to be in place prior to the manatee refuge area as required by public meetings is to provide the public upcoming winter season (which starts § 17.106 and during the rulemaking with information on the next steps in on November 15, 2010) as described process, we will consider the possible the process, as well as for the exchange earlier in this document. issuance of permits in accordance with of useful information. These informal This emergency rule will give § 17.105 and section 104 of the MMPA. public meetings will be held on: manatees protection from harassment at Regulations under 50 CFR 17.105 (1) Saturday, November 20, 2010, a time when they are unable to find authorize the Service to issue permits from 1 to 4 p.m.; and refuge within the existing Federal allowing activities, otherwise prohibited (2) Thursday, December 2, 2010, from manatee sanctuaries and are vulnerable under 50 CFR 17.106 or 50 CFR 17.108, 6 to 9 p.m. to harassment due to the cold for scientific purposes or for the Effective Date temperatures that confine them to Kings enhancement of propagation or survival. Bay. Designating manatee protection We will also explore other means to In accordance with the areas to prohibit the take of manatees in authorize activities otherwise prohibited Administrative Procedure Act, we find Kings Bay is consistent with our under 50 CFR 17.106 or 50 CFR 17.108. good cause as required by 5 U.S.C. authorities under the ESA and the To protect manatees until we can 553(d)(3) to make this rule effective MMPA. The designation of a manatee complete the proposed rule and final sooner than 30 days after publication in refuge in Kings Bay is also consistent rule that will permanently establish the Federal Register. As discussed with the Service’s Florida Manatee additional manatee protections in Kings above under ‘‘Emergency Recovery Plan (2001), which identifies Bay, the Service believes it is critical to Determination,’’ we need to establish the implementation of strategies to establish a manatee refuge on an this manatee protection area (Kings Bay eliminate or minimize manatee emergency basis to prevent the refuge) prior to the time when manatees harassment as an action needed to imminent take of manatees in Kings Bay will be seeking warmer waters in Kings further the recovery of this species from waterborne activities during the Bay for the winter. A 30-day delay in (USFWS 2001). Our authority to create upcoming winter months. Specifically, making these sites effective would result manatee protection areas to prevent the we are establishing this manatee refuge in further risks of manatee mortality, take of manatees is codified in 50 CFR now on an emergency basis to prevent injury, and harassment during the subpart J, which authorizes the Director acts of take including manatee period of delay. In view of the evidence to establish manatee refuges and harassment associated with manatee that there is imminent danger that sanctuaries. This authority also viewing and other activities this winter. manatees will be taken in the waters of authorizes the Service to designate, on This refuge designation will remain in Kings Bay and in its tributaries and an emergency basis, manatee protection place for 120 days, from November 15, connected waters, we believe good areas when it is determined that there 2010, to March 15, 2011. Consistent cause exists to make this rule effective is evidence of imminent danger of a with our authority under our regulations upon November 15, 2010. For the same taking of one or more manatees and that at 50 CFR 17.106 to designate manatee reasons, we also believe that we have establishment of a manatee protection protection areas on an emergency basis, good cause under 5 U.S.C. 553(b)(3)(B) area is necessary to prevent such a within 10 days of this emergency to issue this rule without prior notice taking. designation, we will initiate the and public procedure. We believe such proceedings to establish the manatee emergency action is in the public Emergency Determination refuge area as required by our interest because of the imminent threat This emergency rule establishes a regulations at 50 CFR 17.106(e). to manatees and the additional time manatee refuge in Kings Bay to prevent required to complete the standard the imminent take of manatees resulting Public Participation rulemaking process. The lack of from manatee viewing and other The proceedings to establish the emergency action could result in activities known to occur in this area. manatee refuge area will include a series additional take of manatees. This rule To prevent the imminent take of of four public meetings as described does not supersede any more stringent manatees in Kings Bay, this emergency below. All four public meetings will be State or local regulations. rule will (1) prohibit all waterborne held at the Plantation Inn and Golf activities from specified areas outside of Resort, 9301 W. Fort Island Trail, Required Determinations existing sanctuaries where manatees Crystal River, FL 34429. During the process of preparing a that are unable to gain access and avoid First, we will hold two informational proposed rule to establish this manatee harassment due to overcrowding are public meetings. The purpose of these protection area, which will commence found; and (2) identify and restrict informational public meetings is to through a public workshop as described certain waterborne activities known to provide the public with an opportunity above under ‘‘Emergency take manatees in Kings Bay, including to learn more about the emergency Determination,’’ we will be evaluating actions taken by manatee viewing designation of a manatee refuge in Kings this action in relation to possible participants known to disturb manatees. Bay, why the Service took this action, economic impact, its effect on small The emergency manatee refuge is and to ask questions about the businesses, and other required located within the waters of Kings Bay emergency designation. These determinations. These required and connecting waters and tributaries informational public meetings will be determinations will be included in the west of U.S. Highway 19 and upstream held on: proposed rule.

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References Cited recordkeeping requirements, waters of Kings Bay, including all Transportation. tributaries and adjoining waterbodies, For a list of the references cited in this upstream of the confluence of Kings Bay Regulation Promulgation rule, see Docket No. FWS–R4–ES–2010– and Crystal River, described by a line 0079, available at http:// ■ Accordingly, we amend part 17, that bears North 53°00′00″ East (True) www.regulations.gov. subchapter B of chapter 1, title 50 of the from the northeasternmost point of an Author Code of Federal Regulations, as follows: island on the southwesterly shore of Crystal River (approximate latitude The primary author of this document PART 17—[AMENDED] 28°53′32″ North, approximate longitude ° ′ ″ is Jim Valade (see ADDRESSES section). ■ 1. The authority citation for part 17 82 36 23 West) to the southwesternmost point of a peninsula Authority continues to read as follows: of Magnolia Shores (approximate Authority: 16 U.S.C 1361–1407; 16 U.S.C latitude 28°53′38″ North, approximate The statutory authority to establish 1531–1544; 16 U.S.C 4201–4245; Pub. L. 99– longitude 82°36′16″ West). manatee protection areas is provided by 625, 100 Stat. 3500; unless otherwise noted. the Endangered Species Act of 1973, as ■ (i) The Kings Bay Manatee Refuge amended (16 U.S.C 1531 et seq.), and 2. Amend § 17.108 by adding paragraph (c)(14) to read as follows: encompasses existing manatee the Marine Mammal Protection Act of protection areas as depicted on the map 1972, as amended (16 U.S.C 1361 et § 17.108 List of designated manatee below and as described in paragraphs seq.). protection areas. (a)(1) through (a)(7) of this section, and List of Subjects in 50 CFR Part 17 * * * * * areas outside these sections as described (c) * * * in paragraph (c)(14)(ii)(A) of this Endangered and threatened species, (14) The Kings Bay Manatee Refuge. A section. Exports, Imports, Reporting and tract of submerged land that includes all BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C sanctuaries located in Kings Bay existing boundary. We do not intend to (ii) All waterborne activities, (defined in § 17.108(a)). completely mark off the manmade including swimming, diving (including (A) When manatees exceed the channel. Expansions could occur skin and scuba diving), snorkeling, capacity of an existing sanctuary or shift directly around the existing sanctuary water skiing, surfing, fishing, and the usage around an existing manatee and north into the area locally known as use of water vehicles (including but not sanctuary due to water or weather Three Sisters Springs. limited to boats powered by engine, conditions, we will designate ‘‘No entry’’ (B) Designations of ‘‘no entry’’ areas wind or other means; ships powered by areas within the Kings Bay manatee around existing manatee sanctuaries as engine, wind or other means; barges, refuge and outside of existing manatee described above and within the Kings surfboards, personal watercraft, water sanctuaries as follows: Bay manatee refuge will be made based on aerial survey observations of skis, and any other devices or (1) For the sanctuaries set forth in paragraphs (a)(1) through (a)(6) of this manatees using the existing sanctuary mechanisms capable of locomotion on, section, to a distance not to exceed 100 sites, current weather information, and across, or underneath the surface of the feet from the existing sanctuary other sources of credible, relevant water) are prohibited from November 15 boundary. information. We could designate ‘‘no to March 15 in areas as defined below (2) For the sanctuary set forth in entry’’ areas around one or all of the that are outside of and within specified paragraph (a)(7) of this section, to a manatee sanctuaries depending on the distances from the existing manatee distance not to exceed 400 feet from the winter season.

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(C) Additional protection areas within (B) Disturbing or touching resting or DEPARTMENT OF COMMERCE the Kings Bay manatee refuge, but feeding manatee(s). National Oceanic and Atmospheric outside of the existing manatee (C) Diving from the surface on to Administration sanctuaries set forth in paragraphs (a)(1) resting or feeding manatee(s). through (a)(7) of this section will be posted to distances as described in (D) Cornering or surrounding or 50 CFR Part 300 attempting to corner or surround a paragraph (c)(14)(ii)(A) of this section [Docket No. 090130102–91386–02] and identified by the following devices: manatee(s). buoys, float lines, signs, advisories from (E) Riding, holding, grabbing, or RIN 0648–XZ39 on-site Service employees and their pinching or attempting to ride, hold, Western and Central Pacific Fisheries designees, or other methods. grab, or pinch manatee(s). (iii) Exceptions. Private and public for Highly Migratory Species; 2010 landowners who own property that (F) Poking, prodding, or stabbing, or Bigeye Tuna Longline Fishery Closure attempting to poke, prod, or stab adjoins designated no entry areas in AGENCY: National Marine Fisheries manatee(s) with anything, including Kings Bay are authorized to be in these Service (NMFS), National Oceanic and your hands and feet. areas for the purpose of accessing their Atmospheric Administration (NOAA), property and local waterways, storing (G) Standing on or attempting to stand Commerce. watercraft, and maintaining owned on manatee(s). ACTION: Temporary rule; fishery closure. property and waterways. Authorized (H) Separating a mother and calf or individuals include property owners, SUMMARY: NMFS is closing the U.S. attempting to separate a mother and their guests, employees, and their pelagic longline fishery for bigeye tuna calf. designees. All watercraft operated by in the western and central Pacific Ocean authorized individuals will be (I) Separating manatee(s) from a group as a result of the fishery reaching the identified by a sticker placed on the or attempting to separate manatee(s) 2010 catch limit. watercraft in a conspicuous location; the from a group. DATES: Effective November 22, 2010, Service will provide identifying (J) Giving manatee(s) anything to eat through December 31, 2010. stickers. All authorized watercraft must or drink or attempting to give FOR FURTHER INFORMATION CONTACT: Tom operate at idle speed when in adjoining Graham, NMFS Pacific Islands Region, waters. Maintenance activities include manatee(s) anything to eat or drink. 808–944–2219. those actions necessary to maintain (K) Actively initiating contact with property and waterways, subject to any belted and/or tagged manatee(s) and SUPPLEMENTARY INFORMATION: Pelagic Federal, State, and local government associated gear, including any belts, longline fishing in the western and permitting requirements. harnesses, tracking devices, and central Pacific Ocean is managed, in (iv) Notifications. When waterborne antennae. part, under the Western and Central activities pose an immediate threat to Pacific Fisheries Convention (L) The following waterborne aggregations of manatees and are likely Implementation Act (Act). Regulations activities are prohibited within Three to take one or more manatees, additional governing fishing by U.S. vessels in protection areas outside of existing Sisters Springs, from November 15 to accordance with the Act appear at 50 manatee sanctuaries set forth in March 15: CFR part 300, subpart O. paragraphs (a)(1) through (a)(7) of this (1) Scuba diving. NMFS established a limit (74 FR section but within the Kings Bay 63999, December 7, 2009, and codified (2) Fishing, including with hook and at 50 CFR 300.224) for calendar year manatee refuge will be posted to line, by cast net, or spear. distances as described in paragraph 2010 of 3,763 metric tons (mt) of bigeye (c)(14)(ii)(A) of this section. No-entry (vi) The area defined as Three Sisters tuna (Thunnus obesus) that may be area designations will occur Springs where scuba diving and fishing caught and retained in the U.S. pelagic immediately. We will advise the public is prohibited is delineated as the longline fishery in the area of of designations through public notice(s) following: The area known locally as application of the Convention on the announcing and describing the Three Sisters Springs, which is located Conservation and Management of measures in a local newspaper and along the north shore of the canal that Highly Migratory Fish Stocks in the other media, including but not limited begins on the west side of the City of Western and Central Pacific Ocean to, local television and radio broadcasts, Crystal River’s SE Cutler Spur (Convention Area). NMFS monitored Web sites, and other news outlets, as Boulevard and runs west northwest to the retained catches of bigeye tuna using soon as time permits. Onsite Service Kings Bay. The area includes at least logbook data submitted by vessel employees and their designees, when three main spring vents and numerous captains and other available present, will also inform waterway users smaller vents within the Three Sisters information, and determined that the of designations. Springs complex, and the spring run 2010 catch limit is expected to be reached on November 22, 2010. In (v) Prohibitions. Pursuant to the ESA that connects the springs to the canal. and MMPA, all takings, including accordance with § 300.224(d), this rule takings by harassment, are prohibited Dated: October 25, 2010. serves as advance notification to throughout the year and any manatee Will Shafroth, fishermen, the fishing industry, and the takings, wherever they may occur, are Acting Assistant Secretary for Fish and general public that the U.S. longline prohibited. To better prevent the take of Wildlife and Parks. fishery for bigeye tuna in the manatees by individuals engaged in [FR Doc. 2010–28196 Filed 11–8–10; 8:45 am] Convention Area will be closed starting on November 22, 2010, through the end waterborne activities while in the water, BILLING CODE 4310–55–P in boats, or on-shore within the Kings of the 2010 calendar year. The 2011 Bay Manatee Refuge, we specifically fishing year is scheduled to open on identify and prohibit the following January 1, 2011; the 2011 bigeye tuna types of activities. catch limit will be 3,763 mt. This rule (A) Chasing or pursuing manatee(s). does not apply to the longline fisheries

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of American Samoa, Guam, or the manner so as not to be readily available DEPARTMENT OF COMMERCE Commonwealth of the Northern Mariana for fishing while the vessel is in the Islands (CNMI), as described below. Convention Area. Specifically, the National Oceanic and Atmospheric During the closure, a U.S. fishing hooks, branch or dropper lines, and Administration vessel may not retain on board, floats used to buoy the mainline must be transship, or land bigeye tuna captured stowed and not available for immediate 50 CFR Part 679 by longline gear in the Convention Area, use, and any power-operated mainline [Docket No. 0910131363–0087–02] except that any bigeye tuna already on hauler on deck must be covered in such board a fishing vessel upon the effective a manner that it is not readily available RIN 0648–XAO21 date of the restrictions may be retained for use. Fisheries of the Exclusive Economic on board, transshipped, and landed, The above two additional prohibitions Zone Off Alaska; Pacific Ocean Perch provided that they are landed within 14 do not apply to the following vessels: in the Bering Sea Subarea of the days of the start of the closure, that is, (1) Vessels on declared shallow- by December 6, 2010. This 14-day Bering Sea and Aleutian Islands setting trips pursuant to 50 CFR Management Area landing requirement does not apply to 665.803(a); and a vessel that has declared to NMFS, (2) Vessels registered for use under AGENCY: National Marine Fisheries pursuant to 50 CFR 665.803(a), that the valid American Samoa Longline Limited Service (NMFS), National Oceanic and current trip type is shallow-setting. Access Permits and vessels landing their Atmospheric Administration (NOAA), Furthermore, bigeye tuna caught by bigeye tuna catch in American Samoa, Commerce. longline gear may be retained on board, Guam, or the CNMI, so long as these ACTION: transshipped, and landed if the fish are Temporary rule; modification of vessels conduct fishing activities in caught by a vessel registered for use a closure. accordance with the conditions under a valid NMFS-issued American described above, that is, the bigeye tuna SUMMARY: NMFS is opening directed Samoa Longline Limited Access Permit were not caught in the EEZ around the fishing for Pacific ocean perch in the or if they are landed in American Hawaiian Archipelago, the retention, Bering Sea subarea of the Bering Sea Samoa, Guam, or the CNMI. In either of transshipment, and/or landing is in and Aleutian Islands management area. these two cases, however, the following compliance with applicable laws and This action is necessary to fully use the conditions must be met: regulations, and the bigeye tuna are 2010 total allowable catch of Pacific (1) The bigeye tuna are not caught in ocean perch specified for the Bering Sea the portion of the U.S. Exclusive landed by a vessel that has a valid permit issued under 50 CFR 660.707 or subarea of the Bering Sea and Aleutian Economic Zone (EEZ) around the Islands management area. Hawaiian Archipelago; 665.801. DATES: Effective 1200 hrs, Alaska local (2) Such retention, transshipment, Classification and/or landing is in compliance with time (A.l.t.), November 4, 2010, through applicable laws and regulations; and There is good cause to waive prior 2400 hrs, A.l.t., December 31, 2010. (3) The bigeye tuna are landed by a notice and opportunity for public Comments must be received at the U.S. fishing vessel operated in comment pursuant to 5 U.S.C. 553(b)(B). following address no later than 4:30 compliance with a valid permit issued This action is based on the best p.m., A.l.t., November 24, 2010. under 50 CFR 660.707 or 665.801. available information and is necessary ADDRESSES: Send comments to Sue During the closure, a U.S. vessel is for the conservation and management of Salveson, Assistant Regional also prohibited from transshipping bigeye tuna. Compliance with the notice Administrator, Sustainable Fisheries bigeye tuna caught in the Convention and comment requirement would be Division, Alaska Region, NMFS, Attn: Area by longline gear to any vessel other impracticable and contrary to the public Ellen Sebastian. You may submit than a U.S. fishing vessel operated with interest, since NMFS would be unable comments, identified by 0648–XAO21, a valid permit issued under 50 CFR to ensure that the 2010 bigeye tuna by any one of the following methods: 660.707 or 665.801. catch limit is not exceeded. The annual • Electronic Submissions: Submit all The catch limit and this closure do catch limit is an important mechanism electronic public comments via the not apply to bigeye tuna caught by to ensure that the U.S.A. complies with Federal eRulemaking Portal Web site at longline gear outside the Convention its international obligations in http://www.regulations.gov. Area, such as in the eastern Pacific preventing overfishing and managing • Mail: P.O. Box 21668, Juneau, AK Ocean. To ensure compliance with the the fishery at optimum yield. Moreover, 99802. restrictions related to bigeye tuna caught NMFS previously solicited public • Fax: (907) 586–7557. by longline gear in the Convention Area, comments on the rule that established • Hand delivery to the Federal however, the following requirements the catch limit (74 FR 63999, December Building: 709 West 9th Street, Room apply during the closure period: 7, 2009). For the same reasons, there is 420A, Juneau, AK. (1) A U.S. fishing vessel may not be good cause to establish an effective date All comments received are a part of used to fish with longline gear both less than 30 days after date of the public record and will generally be inside and outside the Convention Area publication of this notice. posted to http://www.regulations.gov during the same fishing trip, with the This action is required by § 300.224(d) without change. All Personal Identifying exception of a fishing trip that is in and is exempt from review under Information (e.g., name, address) progress on November 22, 2010. In that Executive Order 12866. voluntarily submitted by the commenter case, the catch of bigeye tuna must be Authority: 16 U.S.C. 6901 et seq. may be publicly accessible. Do not landed by December 6, 2010; and submit Confidential Business (2) If a U.S. vessel is used to fish using Dated: November 4, 2010. Information or otherwise sensitive or longline gear outside the Convention James P. Burgess, protected information. Area and the vessel enters the Acting Director, Office of Sustainable NMFS will accept anonymous Convention Area at any time during the Fisheries, National Marine Fisheries Service. comments (enter N/A in the required same fishing trip, the longline gear on [FR Doc. 2010–28284 Filed 11–8–10; 8:45 am] fields, if you wish to remain the fishing vessel must be stowed in a BILLING CODE 3510–22–P anonymous). Attachments to electronic

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comments will be accepted in Microsoft (a)(2)(iii)(D), and to fully utilize the Sea subarea of the BSAI. NMFS was Word, Excel, WordPerfect, or Adobe 2010 total allowable catch of POP in the unable to publish a notice providing portable document file (pdf) formats Bering Sea subarea of the BSAI, NMFS time for public comment because the only. is terminating the previous closure and most recent, relevant data only became is opening directed fishing for POP in available as of November 3, 2010. FOR FURTHER INFORMATION CONTACT: Bering Sea subarea of the BSAI. This The AA also finds good cause to Mary Furuness, 907–586–7228. will enhance the socioeconomic well- waive the 30-day delay in the effective SUPPLEMENTARY INFORMATION: NMFS being of harvesters dependent upon date of this action under 5 U.S.C. manages the groundfish fishery in the POP in this area. The Administrator, 553(d)(3). This finding is based upon Bering Sea and Aleutian Islands Alaska Region considered the following the reasons provided above for waiver of management area (BSAI) exclusive factors in reaching this decision: (1) The prior notice and opportunity for public economic zone according to the Fishery current catch of POP in the BSAI and, comment. Management Plan for Groundfish of the (2) the harvest capacity and stated intent Without this inseason adjustment, Bering Sea and Aleutian Islands on future harvesting patterns of vessels NMFS could not allow the fishery for management area (FMP) prepared by the participating in this fishery. POP in the Bering Sea subarea of the North Pacific Fishery Management BSAI to be harvested in an expedient Classification Council under authority of the manner and in accordance with the Magnuson-Stevens Fishery This action responds to the best regulatory schedule. Under Conservation and Management Act. available information recently obtained § 679.25(c)(2), interested persons are Regulations governing fishing by U.S. from the fishery. The Assistant invited to submit written comments on vessels in accordance with the FMP Administrator for Fisheries, NOAA this action to the above address until appear at subpart H of 50 CFR part 600 (AA), finds good cause to waive the November 19, 2010. and 50 CFR part 679. requirement to provide prior notice and This action is required by § 679.20 NMFS closed the directed fishery for opportunity for public comment and § 679.25 and is exempt from review Pacific ocean perch (POP) in the Bering pursuant to the authority set forth at 5 under Executive Order 12866. Sea subarea of the BSAI under U.S.C. 553(b)(B), as such requirement is Authority: 16 U.S.C. 1801 et seq. § 679.20(d)(1)(iii) on January 1, 2010 (75 impracticable and contrary to the public FR 11778, March 12, 2010). interest. This requirement is Dated: November 4, 2010. NMFS has determined that impracticable and contrary to the public James P. Burgess, approximately 2,260 metric tons of POP interest as it would prevent NMFS from Acting Director, Office of Sustainable remain in the directed fishing responding to the most recent fisheries Fisheries, National Marine Fisheries Service. allowance. Therefore, in accordance data in a timely fashion and would [FR Doc. 2010–28264 Filed 11–4–10; 4:15 pm] with § 679.25(a)(1)(i), (a)(2)(i)(C), and delay the opening of POP in the Bering BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 75, No. 216

Tuesday, November 9, 2010

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: This rule Authority: 7 U.S.C. 7411–7425; 7 U.S.C. contains notices to the public of the proposed is issued under the Commodity 7401. issuance of rules and regulations. The Promotion, Research, and Information Dated: November 3, 2010. purpose of these notices is to give interested Act of 1996 (1996 Act) (7 U.S.C. 7411– David R. Shipman, persons an opportunity to participate in the 7425). rule making prior to the adoption of the final Acting Administrator, Agricultural Marketing rules. This action withdraws a proposed Service. rule and referendum order published in [FR Doc. 2010–28242 Filed 11–8–10; 8:45 am] the Federal Register on April 12, 2010 BILLING CODE 3410–02–P DEPARTMENT OF AGRICULTURE [75 FR 18430], that proposed a new U.S. honey producer funded research and Agricultural Marketing Service promotion program. As part of this rulemaking, a proposed DEPARTMENT OF TRANSPORTATION 7 CFR Part 1245 rule was published in the Federal Federal Aviation Administration [Document Number AMS–FV–07–0091; FV– Register on July 14, 2009 [74 FR 34182], 07–706–PR–2A] with a 60-day comment period which closed on September 4, 2009. Fourteen 14 CFR Part 39 RIN 0581–AC78 comments were received. In addition, a Establishment of a U.S. Honey second proposed rule and referendum [Docket No. FAA–2010–1108; Directorate Identifier 2010–NM–151–AD] Producer Research, Promotion, and order was published in the Federal Consumer Information Order; Register on April 12, 2010 [75 FR Withdrawal of a Proposed Rule 18430]. A separate final rule on RIN 2120–AA64 referendum procedures was published AGENCY: Agricultural Marketing Service, in the Federal Register on April 12, Airworthiness Directives; Bombardier, USDA. 2010 [75 FR 18396]. Inc. Model CL–215–1A10 (CL–215), CL– ACTION: Withdrawal of proposed rule The Department conducted an initial 215–6B11 (CL–215T Variant), and CL– and referendum order. referendum from May 17, 2010 through 215–6B11 (CL–415 Variant) Airplanes June 4, 2010 to ascertain whether the SUMMARY: This document withdraws a AGENCY: Federal Aviation persons to be covered by and assessed Administration (FAA), DOT. proposed rule published in the Federal under the Proposed Order favored the Register on April 12, 2010, that Order prior to it going into effect. To be ACTION: Notice of proposed rulemaking proposed a new U.S. honey producer eligible to vote, producers must have (NPRM). funded research and promotion program produced 100,000 or more pounds of SUMMARY: We propose to adopt a new under the Commodity Promotion, honey from January 1, 2008 through Research, and Information Act of 1996 airworthiness directive (AD) for the December 31, 2008. The Proposed Order products listed above. This proposed (1996 Act). The proposed U.S. Honey would have been implemented if Producer Research, Promotion and AD results from mandatory continuing approved by a majority of the producers airworthiness information (MCAI) Consumer Information Order (Proposed voting in the referendum, which also Order) was submitted to the Department originated by an aviation authority of represented a majority of the volume of another country to identify and correct of Agriculture (Department) by the U.S. honey produced during the American Honey Producers Association an unsafe condition on an aviation representative period by those voting in (AHPA). The Department conducted an product. The MCAI describes the unsafe the referendum. In the referendum, 41 initial referendum from May 17, 2010, condition as: percent of those who voted— through June 4, 2010, to ascertain representing 52 percent of the voted Seven cases of on-ground hydraulic whether the persons to be covered by volume of U.S. honey—favored accumulator screw cap or end cap failure and assessed under the Proposed Order have been experienced * * * resulting in implementation of the Order. Therefore, favored the Order prior to it going into loss of the associated hydraulic system and the Proposed Order failed by vote. effect. The Proposed Order failed by high-energy impact damage to adjacent Accordingly based upon the referendum vote. Accordingly, based upon the systems and structure. * * * results, the proposed rule is being referendum results, the proposed rule is * * * * * withdrawn. being withdrawn. A detailed analysis of the systems and The proposed rule to implement a structure in the potential line of trajectory of DATES: Effective Date: November 9, new U.S. honey producer funded a failed screw cap/end cap for each 2010. research and promotion program under accumulator has been conducted. It has FOR FURTHER INFORMATION CONTACT: the 1996 Act published in the Federal identified that the worst-case scenarios Kimberly Coy, Marketing Specialist, Register on April 12, 2010 (75 FR would be impact damage to various Research and Promotion Branch, Fruit 18430), is hereby withdrawn. components, potentially resulting in fuel and Vegetable Programs, AMS, USDA, spillage, uncommanded flap movement, or List of Subjects in 7 CFR Part 1245 loss of aileron control [and consequent Stop 0244, Room 0634–S, 1400 reduced controllability of the airplane]. Independence Ave., SW., Washington, Administrative practice and DC 20250–0244; telephone (202) 720– procedure, Advertising, Consumer * * * * * 9915 or (888) 720–9917 (toll free), Fax: Education, U.S. Honey, Marketing The proposed AD would require actions (202) 205–2800 or e-mail agreements, Promotion, Reporting and that are intended to address the unsafe [email protected]. recordkeeping requirements. condition described in the MCAI.

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DATES: We must receive comments on 2010–NM–151–AD’’ at the beginning of FAA’s Determination and Requirements this proposed AD by December 27, your comments. We specifically invite of This Proposed AD 2010. comments on the overall regulatory, This product has been approved by ADDRESSES: You may send comments by economic, environmental, and energy the aviation authority of another any of the following methods: aspects of this proposed AD. We will country, and is approved for operation • Federal eRulemaking Portal: Go to consider all comments received by the in the United States. Pursuant to our http://www.regulations.gov. Follow the closing date and may amend this bilateral agreement with the State of instructions for submitting comments. proposed AD based on those comments. Design Authority, we have been notified • Fax: (202) 493–2251. We will post all comments we of the unsafe condition described in the • Mail: U.S. Department of receive, without change, to http:// MCAI and service information Transportation, Docket Operations, www.regulations.gov, including any referenced above. We are proposing this M–30, West Building Ground Floor, personal information you provide. We AD because we evaluated all pertinent Room W12–140, 1200 New Jersey will also post a report summarizing each information and determined an unsafe Avenue, SE., Washington, DC 20590. substantive verbal contact we receive condition exists and is likely to exist or • Hand Delivery: U.S. Department of about this proposed AD. develop on other products of the same Transportation, Docket Operations, type design. M–30, West Building Ground Floor, Discussion Differences Between This AD and the Room W12–40, 1200 New Jersey Transport Canada Civil Aviation MCAI or Service Information Avenue, SE., Washington, DC, between (TCCA), which is the aviation authority 9 a.m. and 5 p.m., Monday through We have reviewed the MCAI and for Canada, has issued Canadian related service information and, in Friday, except Federal holidays. Airworthiness Directive CF–2009–42R1, For service information identified in general, agree with their substance. But dated May 14, 2010 (referred to after we might have found it necessary to use this proposed AD, contact Bombardier, this as ‘‘the MCAI’’), to correct an unsafe ˆ different words from those in the MCAI Inc., 400 Cote-Vertu Road West, Dorval, condition for the specified products. ´ to ensure the AD is clear for U.S. Quebec H4S 1Y9, Canada; telephone The MCAI states: 514–855–5000; fax 514–855–7401; operators and is enforceable. In making e-mail [email protected]; * * * * * these changes, we do not intend to differ Internet http://www.bombardier.com. Seven cases of on-ground hydraulic substantively from the information accumulator screw cap or end cap failure You may review copies of the provided in the MCAI and related have been experienced on CL–600–2B19 service information. referenced service information at the (CRJ) aircraft, resulting in loss of the FAA, Transport Airplane Directorate, We might also have proposed associated hydraulic system and high-energy different actions in this AD from those 1601 Lind Avenue, SW., Renton, impact damage to adjacent systems and Washington. For information on the in the MCAI in order to follow FAA structure. To date, the lowest number of policies. Any such differences are availability of this material at the FAA, flight cycles accumulated at the time of call 425–227–1221. failure has been 6991. highlighted in a NOTE within the Although there have been no failures to proposed AD. Examining the AD Docket date on any CL–215–1A10 (CL–215) or CL– Costs of Compliance You may examine the AD docket on 215–6B11 (CL–215T and CL–415) aircraft, Based on the service information, we the Internet at http:// similar accumulators, Part Number (P/N) 08– estimate that this proposed AD would www.regulations.gov; or in person at the 8423–010 (MS28700–3), to those installed on affect about 6 products of U.S. registry. Docket Operations office between 9 a.m. the CL–600–2B19, are installed on the We also estimate that it would take and 5 p.m., Monday through Friday, aircraft listed in the Applicability section of this directive [MCAI]. about 7 work-hours per product to except Federal holidays. The AD docket A detailed analysis of the systems and comply with the basic requirements of contains this proposed AD, the structure in the potential line of trajectory of this proposed AD. The average labor regulatory evaluation, any comments a failed screw cap/end cap for each rate is $85 per work-hour. Based on received, and other information. The accumulator has been conducted. It has these figures, we estimate the cost of the street address for the Docket Operations identified that the worst-case scenarios proposed AD on U.S. operators to be office (telephone (800) 647–5527) is in would be impact damage to various $3,570, or $595 per product per the ADDRESSES section. Comments will components, potentially resulting in fuel inspection cycle. be available in the AD docket shortly spillage, uncommanded flap movement, or In addition, we estimate that any after receipt. loss of aileron control [and consequent reduced controllability of the airplane]. necessary follow-on actions would take FOR FURTHER INFORMATION CONTACT: This directive [MCAI] mandates repetitive about 6 work-hours and require parts Christopher Alfano, Aerospace [ultrasonic] inspections of the accumulators costing $4,055, for a cost of $4,565 per Engineer, Airframe and Mechanical for cracks and replacement of any product. We have no way of Systems Branch, ANE–171, FAA, New accumulator in which a crack is detected. determining the number of products York Aircraft Certification Office, 1600 * * * * * that may need these actions. Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228– You may obtain further information by Authority for This Rulemaking 7340; fax (516) 794–5531. examining the MCAI in the AD docket. Title 49 of the United States Code SUPPLEMENTARY INFORMATION: Relevant Service Information specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, Comments Invited Bombardier has issued Service section 106, describes the authority of We invite you to send any written Bulletins 215–541, 215–3155, and 215– the FAA Administrator. ‘‘Subtitle VII: relevant data, views, or arguments about 4414, all Revision 1, all dated March 12, Aviation Programs,’’ describes in more this proposed AD. Send your comments 2010. The actions described in this detail the scope of the Agency’s to an address listed under the service information are intended to authority. ADDRESSES section. Include ‘‘Docket No. correct the unsafe condition identified We are issuing this rulemaking under FAA–2010–1108; Directorate Identifier in the MCAI. the authority described in ‘‘Subtitle VII,

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Part A, Subpart III, Section 44701: The Proposed Amendment Seven cases of on-ground hydraulic General requirements.’’ Under that Accordingly, under the authority accumulator screw cap or end cap failure have been experienced * * * resulting in section, Congress charges the FAA with delegated to me by the Administrator, promoting safe flight of civil aircraft in loss of the associated hydraulic system and the FAA proposes to amend 14 CFR part high-energy impact damage to adjacent air commerce by prescribing regulations 39 as follows: for practices, methods, and procedures systems and structure. * * * the Administrator finds necessary for PART 39—AIRWORTHINESS * * * * * safety in air commerce. This regulation DIRECTIVES A detailed analysis of the systems and is within the scope of that authority structure in the potential line of trajectory of because it addresses an unsafe condition 1. The authority citation for part 39 a failed screw cap/end cap for each that is likely to exist or develop on continues to read as follows: accumulator has been conducted. It has products identified in this rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. identified that the worst-case scenarios action. would be impact damage to various § 39.13 [Amended] components, potentially resulting in fuel Regulatory Findings 2. The FAA amends § 39.13 by adding spillage, uncommanded flap movement, or We determined that this proposed AD the following new AD: loss of aileron control [and consequent reduced controllability of the airplane]. would not have federalism implications Bombardier, Inc.: Docket No. FAA–2010– under Executive Order 13132. This 1108; Directorate Identifier 2010–NM– * * * * * 151–AD. proposed AD would not have a Compliance substantial direct effect on the States, on Comments Due Date (f) You are responsible for having the the relationship between the national (a) We must receive comments by actions required by this AD performed within Government and the States, or on the December 27, 2010. the compliance times specified, unless the distribution of power and actions have already been done. responsibilities among the various Affected ADs levels of government. (b) None. Inspection To Determine Flight Hours For the reasons discussed above, I Applicability (g) Within 50 flight hours after the effective certify this proposed regulation: (c) This AD applies to Bombardier, Inc. date of this AD, inspect to determine the 1. Is not a ‘‘significant regulatory airplanes, certificated in any category, number of flight cycles accumulated by each action’’ under Executive Order 12866; identified in paragraphs (c)(1), (c)(2), and of the applicable accumulators (i.e., brake, 2. Is not a ‘‘significant rule’’ under the (c)(3) of this AD. aileron, elevator, and rudder accumulators) DOT Regulatory Policies and Procedures (1) Model CL–215–1A10 (CL–215) having part number (P/N) 08–8423–010 (44 FR 11034, February 26, 1979); and airplanes, serial numbers 1001 through 1990 (MS28700–3) installed on the airplane. A 3. Will not have a significant inclusive; review of airplane maintenance records is economic impact, positive or negative, (2) Model CL–215–6B11 (CL–215T Variant) acceptable in lieu of this inspection if the on a substantial number of small entities airplanes, serial numbers 1056 through 1125 number of flight cycles accumulated can be inclusive; conclusively determined from that review. under the criteria of the Regulatory (3) Model CL–215–6B11 (CL–415 Variant) Flexibility Act. airplanes, serial numbers 2001 through 2990 Initial Ultrasonic Inspection We prepared a regulatory evaluation inclusive. (h) For Model CL–215–1A10 (CL–215) and of the estimated costs to comply with Subject CL–215–6B11 (CL–215T) airplanes: Do an this proposed AD and placed it in the ultrasonic inspection for cracking of the AD docket. (d) Air Transport Association (ATA) of America Code 27: Flight controls; and 32: accumulator at the applicable time specified List of Subjects in 14 CFR Part 39 Landing gear. in paragraph (h)(1) or (h)(2) of this AD, in accordance with Part B of the Air transportation, Aircraft, Aviation Reason Accomplishment Instructions of the safety, Incorporation by reference, (e) The mandatory continuing applicable service bulletin listed in Table 1 Safety. airworthiness information (MCAI) states: of this AD.

TABLE 1—SERVICE BULLETINS

Use Bombardier For model— Service Bulletin— Revision— Dated—

CL–215–1A10 (CL–215) ...... 215–541 1 March 12, 2010. CL–215–6B11 (CL–215T) ...... 215–3155 1 March 12, 2010. CL–600–6B11 (CL–415) ...... 215–4414 1 March 12, 2010.

(1) For any accumulator on which the (i) For Model CL–215–6B11 (CL–415) flight cycles after the effective date of this inspection required by paragraph (g) of this airplanes, do an ultrasonic inspection for AD. AD shows an accumulation of more than 875 cracking of the accumulator at the applicable (2) For any accumulator on which the total flight cycles or on which it is not time specified in paragraph (i)(1) or (i)(2) of inspection required by paragraph (g) of this possible to determine the number of total this AD, in accordance with Part B of the AD shows an accumulation of 750 total flight accumulated flight cycles, do the inspection Accomplishment Instructions of the cycles or fewer, do the inspection before the within 125 flight cycles after the effective applicable service bulletin listed in Table 1 accumulation of 1,000 flight cycles on the date of this AD. of this AD. accumulator. (2) For any accumulator on which the (1) For any accumulator on which the inspection required by paragraph (g) of this inspection required by paragraph (g) of this Repetitive Inspections AD shows an accumulation of 875 total flight AD shows an accumulation of more than 750 (j) If no cracking is found during any cycles or fewer, do the inspection before the flight cycles or on which it is not possible to inspection required by paragraph (h) or (i) of accumulation of 1,000 flight cycles on the determine the number of total accumulated this AD, repeat the inspection thereafter at accumulator. flight cycles, do the inspection within 250 intervals not to exceed 750 flight cycles.

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(k) If any cracking is found during any Repeat the inspections required by paragraph Credit for Actions Accomplished in inspection required by paragraph (h) or (i) of (h) or (i) of this AD at intervals not to exceed Accordance With Previous Service this AD, before further flight, replace the 750 flight cycles. Information accumulator with a serviceable accumulator, Parts Installation (m) Inspections accomplished before the in accordance with Part B of the (l) As of the effective date of this AD, no effective date of this AD in accordance with Accomplishment Instructions of the person may install an accumulator (P/N) 08– the applicable service bulletin listed in Table applicable service bulletin listed in Table 1 8423–010 (MS28700–3) on any airplane 2 of this AD are considered acceptable for of this AD. Doing the replacement does not unless the accumulator has been inspected in compliance with the corresponding action end the inspection requirements of this AD. accordance with the requirements of this AD. specified in this AD.

TABLE 2—CREDIT SERVICE BULLETINS

Use Bombardier For model— Service Bulletin— Dated—

CL–215–1A10 (CL–215) ...... 215–541 July 9, 2009. CL–215–6B11 (CL–215T) ...... 215–3155 July 9, 2009. CL–600–6B11 (CL–415) ...... 215–4414 July 9, 2009.

FAA AD Differences Issued in Renton, Washington, on could result in damage to critical November 2, 2010. Note 1: This AD differs from the MCAI electrical and avionics components. Dionne Palermo, and/or service information as follows: DATES: We must receive comments on No differences. Acting Manager, Transport Airplane this proposed AD by December 27, Directorate, Aircraft Certification Service. 2010. Other FAA AD Provisions [FR Doc. 2010–28275 Filed 11–8–10; 8:45 am] ADDRESSES: You may send comments by (n) The following provisions also apply to BILLING CODE 4910–13–P any of the following methods: this AD: • Federal eRulemaking Portal: Go to (1) Alternative Methods of Compliance http://www.regulations.gov. Follow the DEPARTMENT OF TRANSPORTATION (AMOCs): The Manager, New York Aircraft instructions for submitting comments. • Certification Office (ACO), ANE–170, FAA, Federal Aviation Administration Fax: 202–493–2251. has the authority to approve AMOCs for this • Mail: U.S. Department of AD, if requested using the procedures found 14 CFR Part 39 Transportation, Docket Operations, in 14 CFR 39.19. Send information to ATTN: M–30, West Building Ground Floor, Program Manager, Continuing Operational Room W12–140, 1200 New Jersey Safety, FAA, New York ACO, 1600 Stewart [Docket No. FAA–2010–1107; Directorate Identifier 2009–NM–263–AD] Avenue, SE., Washington, DC 20590. Avenue, Suite 410, Westbury, New York • Hand Delivery: U.S. Department of 11590; telephone 516–228–7300; fax 516– Transportation, Docket Operations, RIN 2120–AA64 794–5531. Before using any approved AMOC M–30, West Building Ground Floor, on any airplane to which the AMOC applies, Airworthiness Directives; The Cessna Room W12–140, 1200 New Jersey notify your principal maintenance inspector Aircraft Company Model 750 Airplanes Avenue, SE., Washington, DC 20590, (PMI) or principal avionics inspector (PAI), between 9 a.m. and 5 p.m., Monday as appropriate, or lacking a principal AGENCY: Federal Aviation through Friday, except Federal holidays. inspector, your local Flight Standards District Administration (FAA), DOT. For service information identified in Office. The AMOC approval letter must ACTION: Notice of proposed rulemaking this proposed AD, contact Cessna specifically reference this AD. (NPRM). Aircraft Co., P.O. Box 7706, Wichita, (2) Airworthy Product: For any requirement Kansas 67277; telephone 316–517–6215; in this AD to obtain corrective actions from SUMMARY: We propose to adopt a new fax 316–517–5802; e-mail a manufacturer or other source, use these airworthiness directive (AD) for certain [email protected]; actions if they are FAA-approved. Corrective Model 750 airplanes. This proposed AD Internet https:// actions are considered FAA-approved if they would require an inspection to www.cessnasupport.com/newlogin.html. are approved by the State of Design Authority determine the serial numbers of the You may review copies of the (or their delegated agent). You are required auxiliary power unit (APU) generator referenced service information at the to assure the product is airworthy before it and the left and right engine direct FAA, Transport Airplane Directorate, is returned to service. current (DC) generators, and related 1601 Lind Avenue, SW., Renton, (3) Reporting Requirements: For any corrective actions if necessary. This reporting requirement in this AD, under the Washington. For information on the proposed AD would also require availability of this material at the FAA, provisions of the Paperwork Reduction Act revising the airplane flight manual. This (44 U.S.C. 3501 et seq.), the Office of call 425–227–1221. proposed AD results from a report of a Management and Budget (OMB) has DC generator overvoltage event which Examining the AD Docket approved the information collection requirements and has assigned OMB Control caused smoke in the cockpit and You may examine the AD docket on Number 2120–0056. damage to numerous avionics and the Internet at http:// electrical components. We are www.regulations.gov; or in person at the Related Information proposing this AD to detect and correct Docket Management Facility between (o) Refer to MCAI Transport Canada Civil an overvoltage condition on the DC 9 a.m. and 5 p.m., Monday through Aviation Airworthiness Directive CF–2009– electrical busses caused by exciter stator Friday, except Federal holidays. The AD 42R1, dated May 14, 2010; and the service winding failures, and subsequent failure docket contains this proposed AD, the bulletins listed in Table 1 of this AD; for of the generator control unit (GCU) regulatory evaluation, any comments related information. overvoltage protection circuitry, which received, and other information. The

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street address for the Docket Office generators. For any airplane having any safety in air commerce. This regulation (telephone 800–647–5527) is in the generator with a serial number from 060 is within the scope of that authority ADDRESSES section. Comments will be through 297 without suffix ‘‘C,’’ the because it addresses an unsafe condition available in the AD docket shortly after service letter specifies to replace the that is likely to exist or develop on receipt. affected generator(s) before further products identified in this rulemaking FOR FURTHER INFORMATION CONTACT: flight. We also reviewed Cessna action. Airplane Flight Manual Temporary Raymond Johnston, Aerospace Engineer, Regulatory Findings Electrical Systems and Avionics, ACE– Changes 75EUMA TC–R01–35, dated 119W, FAA, Wichita Aircraft May 8, 2009; 75EUA TC–R01–35, dated We determined that this proposed AD Certification Office (ACO), 1801 Airport May 8, 2009; and 75FMA TC–R01–46, would not have federalism implications Road, Room 100, Mid-Continent dated April 23, 2009; which provide under Executive Order 13132. This Airport, Wichita, Kansas 67209; instructions not to hold the main or proposed AD would not have a telephone (316) 946–4197; fax (316) APU generator reset switches in the substantial direct effect on the States, on 946–4107. reset position for more than one second the relationship between the national SUPPLEMENTARY INFORMATION: and to make no more than two attempts Government and the States, or on the to reset a generator. distribution of power and Comments Invited responsibilities among the various We invite you to send any written FAA’s Determination and Requirements levels of government. relevant data, views, or arguments about of This Proposed AD For the reasons discussed above, I this proposed AD. Send your comments We are proposing this AD because we certify this proposed regulation: to an address listed under the evaluated all relevant information and 1. Is not a ‘‘significant regulatory ADDRESSES section. Include ‘‘Docket No. determined the unsafe condition action’’ under Executive Order 12866, FAA–2010–1107; Directorate Identifier described previously is likely to exist or 2. Is not a ‘‘significant rule’’ under the 2009–NM–263–AD’’ at the beginning of develop in other products of the same DOT Regulatory Policies and Procedures your comments. We specifically invite type design. This proposed AD would (44 FR 11034, February 26, 1979), and comments on the overall regulatory, require accomplishing the actions 3. Will not have a significant economic, environmental, and energy specified in the service information economic impact, positive or negative, aspects of this proposed AD. We will described previously. on a substantial number of small entities consider all comments received by the under the criteria of the Regulatory Interim Action closing date and may amend this Flexibility Act. proposed AD because of those We consider this proposed AD You can find our regulatory comments. interim action. The manufacturer is evaluation and the estimated costs of We will post all comments we currently developing a modification that compliance in the AD Docket. will address the unsafe condition receive, without change, to http:// List of Subjects in 14 CFR Part 39 www.regulations.gov, including any identified in this AD. Once this personal information you provide. We modification is developed, approved, Air transportation, Aircraft, Aviation will also post a report summarizing each and available, we might consider safety, Incorporation by reference, substantive verbal contact we receive additional rulemaking. Safety. about this proposed AD. Costs of Compliance The Proposed Amendment Discussion We estimate that this proposed AD Accordingly, under the authority We have received a report of a DC would affect 67 airplanes of U.S. delegated to me by the Administrator, generator overvoltage event which registry. We also estimate that it would the FAA proposes to amend 14 CFR part caused smoke in the cockpit and take up to 10 work-hours per product to 39 as follows: damage to numerous avionics and comply with this proposed AD. The electrical components. This event average labor rate is $85 per work-hour. PART 39—AIRWORTHINESS occurred on the ground before an engine Based on these figures, we estimate the DIRECTIVES was started. This event was determined cost of this proposed AD to the U.S. 1. The authority citation for part 39 to be the result of a short in the APU operators to be up to $56,950, or $850 continues to read as follows: generator windings and subsequent per product. damage to the overvoltage protection Authority: 49 U.S.C. 106(g), 40113, 44701. Authority for This Rulemaking circuit in the GCU due to prolonged § 39.13 [Amended] holding of the generator reset switch in Title 49 of the United States Code 2. The FAA amends § 39.13 by adding the cockpit. This condition, if not specifies the FAA’s authority to issue the following new AD: corrected, could result in an overvoltage rules on aviation safety. Subtitle I, condition on the DC electrical busses section 106, describes the authority of The Cessna Aircraft Company: Docket No. the FAA Administrator. ‘‘Subtitle VII: FAA–2010–1107; Directorate Identifier caused by exciter stator winding 2009–NM–263–AD. failures, and subsequent failure of the Aviation Programs,’’ describes in more GCU overvoltage protection circuitry detail the scope of the Agency’s Comments Due Date associated with the engine and APU DC authority. (a) We must receive comments by generators. We are issuing this rulemaking under December 27, 2010. the authority described in ‘‘Subtitle VII, Affected ADs Relevant Service Information Part A, Subpart III, Section 44701: We have reviewed Cessna Service General requirements.’’ Under that (b) None. Letter SL750–24–08, dated August 13, section, Congress charges the FAA with Applicability 2009, which describes procedures for an promoting safe flight of civil aircraft in (c) This AD applies to The Cessna Aircraft inspection to determine the serial air commerce by prescribing regulations Company Model 750 airplanes, certificated in number of the APU generator and the for practices, methods, and procedures any category, having serial numbers –0222, left and right engine 400 amp DC the Administrator finds necessary for and –0225 and subsequent.

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Subject Note 1: The AFM revisions required by from June 15, 2010 to June 15, 2011 of (d) Air Transport Association (ATA) of paragraph (g) of this AD may be done by the applicable attainment date for the America Code 24: Electrical power. inserting copies of TCs 75FMA TC–R01–46, New Jersey portion of the Philadelphia- dated April 23, 2009; 75EUA TC–R01–35, Wilmington-Atlantic City 1997 8-hour Unsafe Condition dated May 8, 2009; or 75EUMA TC–R01–35, dated May 8, 2009; into the applicable AFM. ozone nonattainment area (Philadelphia (e) This AD results from a report of a direct Area), which is classified as moderate current (DC) generator overvoltage event When these TCs have been included in which caused smoke in the cockpit and general revisions of the AFM, the general nonattainment for the 1997 8-hour damage to numerous avionics and electrical revisions may be inserted into the AFM, ozone national ambient air quality components. The Federal Aviation provided the relevant information in the standard (NAAQS). This proposed Administration is issuing this AD to detect general revision is identical to that in TCs. extension is based in part on complete, and correct an overvoltage condition on the quality-assured air quality data recorded Parts Installation DC electrical busses caused by exciter stator during the 2009 ozone season. In winding failures, and subsequent failure of (i) As of the effective date of this AD, no accordance with requirements for a 1- the generator control unit overvoltage person may install any Pacific Scientific year extension, the Philadelphia Area’s protection circuitry, which could result in generators having part number 92841–1 damage to critical electrical and avionics (9914752–1) that has serial numbers 060 4th highest daily 8-hour monitored components. through 297 without the suffix ‘‘C’’ on any ozone value during the 2009 ozone airplane. season at each monitor in the area is less Compliance than 0.084 parts per million (ppm). If (f) You are responsible for having the Alternative Methods of Compliance EPA finalizes this proposed approval of (AMOCs) actions required by this AD performed within the attainment date extension, EPA will the compliance times specified, unless the (j)(1) The Manager, Wichita Aircraft revise the table with regard to the 8- actions have already been done. Certification Office, FAA, has the authority to hour ozone attainment dates for the approve AMOCs for this AD, if requested Inspection using the procedures found in 14 CFR 39.19. New Jersey portion of the Philadelphia (g) For airplanes having serial numbers Send information to ATTN: Raymond Area. –0222, –0225 through –0293 inclusive, Johnston, Aerospace Engineer, Electrical DATES: Comments must be received on –0295, –0296, and –0298: Within 6 months Systems and Avionics, ACE–119W, FAA, or before December 9, 2010. or 600 flight hours after the effective date of Wichita Aircraft Certification Office (ACO), ADDRESSES: Submit your comments, this AD, whichever occurs later, inspect to 1801 Airport Road, Room 100, Mid-Continent identified by Docket ID number EPA– determine the serial number of the auxiliary Airport, Wichita, Kansas 67209; telephone power unit (APU) generator and the left and (316) 946–4197; fax (316) 946–4107. R02–OAR–2010–0688, by one of the right engine 400 amp DC generators, in (2) To request a different method of following methods: accordance with the Accomplishment compliance or a different compliance time • http://www.regulations.gov: Follow Instructions of Cessna Service Letter SL750– for this AD, follow the procedures in 14 CFR the on-line instructions for submitting 24–08, dated August 13, 2009. For airplanes 39.19. Before using any approved AMOC on comments. that have one or more generators having a any airplane to which the AMOC applies, • E-mail: [email protected]. serial number 060 through 297 inclusive notify your principal maintenance inspector • Fax: 212–637–3901. without suffix ‘‘C,’’ before further flight, (PMI) or principal avionics inspector (PAI), • Mail: Raymond Werner, Chief, Air replace the affected generator(s) with a new as appropriate, or lacking a principal Programs Branch, Environmental or serviceable generator, in accordance with inspector, your local Flight Standards District Protection Agency, Region 2 Office, 290 the Accomplishment Instructions of Cessna Office. The AMOC approval letter must Service Letter SL750–24–08, dated August specifically reference this AD. Broadway, 25th Floor, New York, New 13, 2009. York 10007–1866. Issued in Renton, Washington, on • Hand Delivery: Raymond Werner, Revision of the Airplane Flight Manual November 2, 2010. Chief, Air Programs Branch, (AFM) Dionne Palermo, Environmental Protection Agency, (h) For airplanes having serial numbers Acting Manager, Transport Airplane Region 2 Office, 290 Broadway, 25th –0222, and –0225 and subsequent: Within 30 Floor, New York, New York 10007– days after the effective date of this AD, revise Directorate, Aircraft Certification Service. Section II, Operating Limitations, Generator [FR Doc. 2010–28274 Filed 11–8–10; 8:45 am] 1866. Such deliveries are only accepted Limitations, page 2–12, of the applicable BILLING CODE 4910–13–P during the Regional Office’s normal airplane flight manual (AFM) to include the hours of operation. The Regional information in the applicable Temporary Office’s official hours of business are Change (TC) required by paragraph (h)(1), ENVIRONMENTAL PROTECTION Monday through Friday, 8:30 a.m. to (h)(2), or (h)(3) of this AD. These TCs AGENCY 4:30 p.m. excluding Federal holidays. introduce procedures for resetting the APU Instructions: Direct your comments to generator. Operate the airplane according to 40 CFR Part 81 Docket ID No. EPA–R02–OAR–2010– the limitations and procedures in the TCs. 0688. EPA’s policy is that all comments (1) For Model 750 Citation X (750–0173 [EPA–R02–OAR–2010–0688; FRL–9223–7] and on and airplanes incorporating SB750– received will be included in the public 71–10 AFM 75FMA, Revision 1, dated June Approval and Promulgation of One- docket without change and may be 13, 2002): Insert Cessna Temporary Change Year Extension for Attaining the 1997 made available online at http:// (TC) 75FMA TC–R01–46, dated April 23, 8-Hour Ozone Standard for the New www.regulations.gov, including any 2009. Jersey Portion of the Philadelphia- personal information provided, unless (2) For Model 750 Citation X (750–0173 the comment includes information and on and airplanes incorporating SB750– Wilmington-Atlantic City Moderate Nonattainment Area claimed to be Confidential Business 71–10) AFM 75EUA, Revision 1, dated June Information (CBI) or other information 19, 2002: Insert Cessna TC 75EUA TC–R01– AGENCY: Environmental Protection whose disclosure is restricted by statute. 35, dated May 8, 2009. (3) For Model 750 Citation X (750–0173 Agency (EPA). Do not submit information that you and on and airplanes incorporating SB750– ACTION: Proposed rule. consider to be CBI or otherwise 71–10) AFM 75EUMA, Revision 1, dated protected through http:// June 30, 2002: Insert Cessna TC 75EUMA SUMMARY: Under the Clean Air Act, EPA www.regulations.gov or e-mail. The TC–R01–35, dated May 8, 2009. is proposing to approve an extension http://www.regulations.gov Web site is

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an ‘‘anonymous access’’ system, which at all possible, that you contact the attainment date for an ozone means EPA will not know your identity individual listed in the FOR FURTHER nonattainment area if the State has or contact information unless you INFORMATION CONTACT section to view complied with the requirements in the provide it in the body of your comment. the hard copy of the docket. You may applicable implementation plan and If you send an e-mail comment directly view the hard copy of the docket there is no more than one exceedance of to EPA without going through http:// Monday through Friday, 8 a.m. to the NAAQS in the year preceding the www.regulations.gov your e-mail 4 p.m., excluding Federal holidays. extension year. 40 CFR 51.907 sets forth address will be automatically captured FOR FURTHER INFORMATION CONTACT: Paul how section 181(a)(5) applies to an area and included as part of the comment Truchan, Air Programs Branch, subject to the 1997 8-hour ozone that is placed in the public docket and Environmental Protection Agency, 290 NAAQS. Under 40 CFR 51.907, an area made available on the Internet. If you Broadway, 25th Floor, New York, New will meet the requirement of section submit an electronic comment, EPA York 10007–1866, (212) 637–4249; 181(a)(5)(B) of the CAA pertaining to recommends that you include your e-mail address: [email protected]. one-year extensions of the attainment name and other contact information in SUPPLEMENTARY INFORMATION: date if: the body of your comment and with any disk or CD–ROM you submit. If EPA I. New Jersey’s Request for Attainment (a) For the first 1-year extension, the cannot read your comment due to Date Extension for the Philadelphia area’s 4th highest daily 8-hour average technical difficulties and cannot contact Area in the attainment year is 0.084 parts per you for clarification, EPA may not be On June 23, 2010, the State of New million (ppm) or less, able to consider your comment. Jersey requested a one-year attainment (b) For the second 1-year extension, Electronic files should avoid the use of date extension for the Philadelphia the area’s 4th highest daily 8-hour special characters, any form of Area. The Philadelphia Area, which is value, averaged over both the original encryption, and be free of any defects or classified as moderate for the 1997 attainment year and the first extension viruses. For additional information 8-hour ozone National Ambient Air year, is 0.084 ppm or less. about EPA’s public docket visit the EPA Quality Standards (NAAQS), consists of (c) For purposes of paragraphs (a) and Docket Center homepage at http:// Cecil County in Maryland; Bucks, (b) of this section, the area’s 4th highest www.epa.gov/epahome/dockets.htm. Chester, Delaware, Montgomery and daily 8-hour average shall be from the Docket: All documents in the docket Philadelphia Counties in Pennsylvania; monitor with the highest 4th highest are listed in the http:// the entire State of Delaware; and www.regulations.gov index. Although daily 8-hour average of all the monitors Atlantic, Burlington, Camden, Cape that represent that area. listed in the index, some information is May, Cumberland, Gloucester, Mercer, not publicly available, e.g., CBI or other Ocean, and Salem Counties in New EPA’s review of the actual ozone air information whose disclosure is Jersey. Since this area was classified as quality data in the Air Quality System restricted by statute. Certain other a moderate ozone nonattainment area, shows that the 4th highest daily average material, such as copyrighted material, the statutory ozone attainment date, as 8-hour ozone concentrations for the will be publicly available only in hard prescribed by section 181(a) of the Clean 2009 attainment year ozone season, for copy. Publicly available docket Air Act (CAA), is June 15, 2010. New all monitors in the Philadelphia Area materials are available either Jersey requested that the attainment date measured less than 0.084 ppm (Table 1), electronically in http:// be extended to June 15, 2011. as required by 40 CFR 51.907(a). The www.regulations.gov or in hard copy at highest-reading monitoring site had a the Environmental Protection Agency, II. CAA Requirements and EPA Actions 4th high value for 2009 of 0.074 ppm Region 2 Office, Air Programs Branch, Regarding One-Year Extensions (Bucks/Pennsylvania). The monitoring 290 Broadway, 25th Floor, New York, Section 181(a)(5) of the CAA provides data has been quality-controlled and New York 10007–1866. EPA requests, if for a 1-year extension of the applicable quality-assured.

TABLE 1—MONITORING DATA FOR 8-HOUR OZONE IN THE PHILADELPHIA AREA

4th Max Site ID County/state Year 8-hr (ppm)

10–001–0002 ...... Kent/Delaware ...... 2009 .066 10–003–1007 ...... New Castle/Delaware ...... 2009 .068 10–003–1010 ...... New Castle/Delaware ...... 2009 .068 10–003–1013 ...... New Castle/Delaware ...... 2009 .069 10–005–1002 ...... Sussex/Delaware ...... 2009 .067 10–005–1003 ...... Sussex/Delaware ...... 2009 .069 24–015–0003 ...... Cecil/Maryland ...... 2009 .072 42–017–0012 ...... Bucks/Pennsylvania ...... 2009 .074 42–029–0100 ...... Chester/Pennsylvania ...... 2009 .067 42–045–0002 ...... Delaware/Pennsylvania ...... 2009 .065 42–091–0013 ...... Montgomery/Pennsylvania ...... 2009 .070 42–101–0004 ...... Philadelphia/Pennsylvania ...... 2009 .059 42–101–0024 ...... Philadelphia/Pennsylvania ...... 2009 .072 34–001–0006 ...... Atlantic/New Jersey ...... 2009 .071 34–007–1001 ...... Camden/New Jersey ...... 2009 .071 34–011–0007 ...... Cumberland/New Jersey ...... 2009 .072 34–015–0002 ...... Gloucester/New Jersey ...... 2009 .071 34–021–0005 ...... Mercer/New Jersey ...... 2009 .071 34–029–0006 ...... Ocean/New Jersey ...... 2009 .071

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EPA has determined that the therefore is not subject to review by the • Will not have disproportionately requirements for a one-year extension of Office of Management and Budget. For high and adverse human health or the attainment date have been fulfilled this reason, this action is also not environmental effects on minority or as follows: subject to Executive Order 13211, low-income populations because it does (1) New Jersey has complied with all ‘‘Actions Concerning Regulations That not affect the level of protection requirements and commitments Significantly Affect Energy Supply, provided to human health or the pertaining to the area in the applicable Distribution, or Use’’ (66 FR 28355 (May environment. ozone implementation plan. New 22, 2001)). This action determines, • Jersey’s applicable ozone based on air quality considerations and Does not affect the level of implementation plan can be found at 40 compliance with the State protection provided to human health or CFR 52.1570. The most recent actions implementation plan, that an area has the environment because extending the related to New Jersey’s applicable ozone qualified for a one-year extension of the attainment date does not alter the implementation plan can be found at attainment date of a previously emission reduction measures that are EPA’s rulemakings: ‘‘Approval and established NAAQS, and imposes no required to be implemented in the Promulgation of Implementation Plans; additional requirements. For that Philadelphia Area, which is classified as New Jersey Reasonable Further Progress reason, this action: moderate nonattainment for the 1997 8- Plans, Reasonably Available Control • Will not have a significant hour ozone standard. See 69 FR at Technology, Reasonably Available economic impact on a substantial 23909 (April 30, 2004). Control Measures and Conformity number of small entities under the • Does not impose an information Budgets’’ proposed January 16, 2009 (74 Regulatory Flexibility Act (5 U.S.C. 601 collection burden under the provisions FR 2945) and final rulemaking May 15, et seq.); of the Paperwork Reduction Act of 1995 • 2009 (74 FR 22837); ‘‘Approval and Does not contain any unfunded (44 U.S.C. 3501 et seq.). Promulgation of Implementation Plans; mandate or significantly or uniquely Implementation Plan Revision; State of affect small governments and therefore If the Philadelphia Area were not New Jersey’’ proposed April 23, 2010 (75 does not impose any additional granted an extension of its attainment FR 21197) and final rulemaking August enforceable duties, as described in the date, EPA’s recourse would be to initiate 3, 2010 (74 FR 45483); and ‘‘Approval Unfunded Mandates Reform Act of 1995 a reclassification of the Philadelphia and Promulgation of Implementation (Pub. L. 104–4). Area from its current classification of Plans; New Jersey; 8-hour Ozone • Does not have a substantial direct moderate nonattainment to serious Control Measure’’ proposed July 22, effect on one or more Indian Tribes, on nonattainment, pursuant to section 2010 (75 FR 42672); and the relationship between the Federal 181(b)(2) of the CAA. Because the (2) The maximum 4th highest daily Government and Indian Tribes, or on Philadelphia Area was formerly a severe 8-hour monitored value at any the distribution of power and nonattainment area under the revoked monitoring site in the Philadelphia area responsibilities between the Federal 1-hour ozone standard (see 56 FR at during the 2009 ozone season was 0.074 Government and Indian Tribes, as 56773, November 6, 1991), it is required ppm, which is below the 0.084 ppm specified by Executive Order 13175 (65 to continue to implement severe area criteria. FR 67249, November 9, 2000), nor will requirements pursuant to EPA’s Therefore, EPA is proposing to it have substantial direct effects on the interpretation of ‘‘anti-backsliding’’ approve the State’s request for an States, on the relationship between the provision of section 172(e) of the CAA. extension of the attainment date for the national government and the States, or See 69 FR at 23973, April 30, 2004, New Jersey portion of the Philadelphia on the distribution of power and South Coast Air Quality Management Area to June 15, 2011. If the approval is responsibilities among the various District v. EPA, 472 F.3d 882 (DC Cir. finalized, the table in 40 CFR 81.331 levels of government, as specified in 2006), modified and rehearing den., 489 will be modified to reflect EPA’s Executive Order 13132 (64 FR 43255, F.3d 1245 (DC Cir. 2007). The severe approval of New Jersey’s attainment August 10, 1999), because it merely area requirements are more stringent date extension request. The table is determines that an area has attained a than both the moderate and serious area entitled ‘‘New Jersey-Ozone (8-Hour Federal standard, and does not alter the requirements set forth in Title I, Part D, Standard).’’ relationship or the distribution of power Subpart 2 of the CAA. Therefore, even and responsibilities established in the if EPA were to not grant the attainment III. Conclusion CAA. date extension and instead move to Pursuant to CAA section 181(a) and • Is not subject to Executive Order reclassify the area to serious 40 CFR 51.907, EPA is proposing to 13045 (62 FR 19885, April 23, 1997), nonattainment, no additional emission approve an attainment date extension because it is not economically reduction measures would be required from June 15, 2010 to June 15, 2011 for significant. to be implemented in the Philadelphia the New Jersey portion of the • Is not subject to requirements of Area through a 181(b)(2) Philadelphia Area, which is classified as Section 12(d) of the National reclassification. moderate for the 1997 8-hour ozone Technology Transfer and Advancement NAAQS. EPA is publishing this rule as Act of 1995 (15 U.S.C. 272 note) because List of Subjects in 40 CFR Part 81 application of those requirements would a proposal in the Proposed Rules section Environmental protection, Air be inconsistent with the Clean Air Act; of this Federal Register, and receiving pollution control. public comments until December 9, and 2010. • Does not provide EPA with the Authority: 42 U.S.C. 7401 et seq. discretionary authority to address, as Dated: October 20, 2010. IV. Statutory and Executive Order appropriate, disproportionate human Reviews health or environmental effects, using Judith A. Enck, Under Executive Order 12866 (58 FR practicable and legally permissible Regional Administrator, Region 2. 51735, October 4, 1993), this action is methods, under Executive Order 12898 [FR Doc. 2010–28254 Filed 11–8–10; 8:45 am] not a ‘‘significant regulatory action’’ and (59 FR 7629, February 16, 1994). BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION Docket’s normal hours of operation, and Washington Boulevard, Suite 705, AGENCY special arrangements should be made Baltimore, Maryland 21230; and the for deliveries of boxed information. Pennsylvania Department of 40 CFR Part 81 Instructions: Direct your comments to Environmental Protection, Bureau of Air Docket ID No. EPA–R03–OAR2010– Quality Control, P.O. Box 8468, 400 [EPA–R03–OAR–2010–0574; FRL–9223–1] 0574. EPA’s policy is that all comments Market Street, Harrisburg, Pennsylvania Approval of One-Year Extension for received will be included in the public 17105. Attaining the 1997 8-Hour Ozone docket without change, and may be FOR FURTHER INFORMATION CONTACT: Standard for the Delaware, Maryland, made available online at http:// Maria Pino, (215) 814–2181, or by e- and Pennsylvania Portions of the www.regulations.gov, including any mail at [email protected]. personal information provided, unless Philadelphia-Wilmington-Atlantic City SUPPLEMENTARY INFORMATION: Moderate Nonattainment Area the comment includes information claimed to be Confidential Business I. Requests for Attainment Date AGENCY: Environmental Protection Information (CBI) or other information Extension for the Philadelphia Area whose disclosure is restricted by statute. Agency (EPA). The Commonwealth of Pennsylvania Do not submit information that you ACTION: Proposed rule. and the States of Maryland and consider to be CBI or otherwise Delaware (the States) requested a one- SUMMARY: EPA is proposing to extend protected through http:// year attainment date extension for the the attainment date from June 15, 2010 www.regulations.gov or e-mail. The Philadelphia Area on January 8, 2010, to June 15, 2011 for the Delaware, http://www.regulations.gov Web site is March 12, 2010, and May 18, 2010, Maryland, and Pennsylvania portions of an ‘‘anonymous access’’ system, which respectively. The Philadelphia Area, the Philadelphia-Wilmington-Atlantic means EPA will not know your identity which is classified as moderate for the City nonattainment area (Philadelphia or contact information unless you 1997 8-hour ozone NAAQS, consists of: Area), which is classified as moderate provide it in the body of your comment. Cecil County in Maryland; Bucks, for the 1997 8-hour ozone national If you send an e-mail comment directly Chester, Delaware, Montgomery and ambient air quality standard (NAAQS). to EPA without going through http:// Philadelphia Counties in Pennsylvania; This extension is based in part on air www.regulations.gov, your e-mail the entire State of Delaware; and quality data recorded during the 2009 address will be automatically captured Atlantic, Burlington, Camden, Cape ozone season. Specifically, the and included as part of the comment May, Cumberland, Gloucester, Mercer, Philadelphia Area’s 4th highest daily 8- that is placed in the public docket and Ocean, and Salem Counties in New hour monitored ozone value during the made available on the Internet. If you Jersey. Since this area was classified as 2009 ozone season is 0.084 parts per submit an electronic comment, EPA a moderate ozone nonattainment area, million (ppm) or less. Accordingly, EPA recommends that you include your the statutory ozone attainment date, as is revising the tables concerning the 8- name and other contact information in prescribed by section 181(a) of the CAA, hour ozone attainment dates for the the body of your comment and with any is June 15, 2010. The States’ requested Philadelphia Area in the States of disk or CD–ROM you submit. If EPA that the attainment date be extended to Delaware and Maryland, and the cannot read your comment due to June 15, 2011. As stated above, EPA is Commonwealth of Pennsylvania. EPA is technical difficulties and cannot contact approving the extension of the proposing to approve the extension of you for clarification, EPA may not be attainment date for the New Jersey the attainment date for the Delaware, able to consider your comment. portion of the Philadelphia Area in a Maryland, and Pennsylvania portions of Electronic files should avoid the use of separate rulemaking notice in today’s the Philadelphia Area in accordance special characters, any form of Federal Register. with the requirements of the Clean Air encryption, and be free of any defects or Act (CAA). EPA is proposing to approve viruses. II. CAA Requirements and EPA Actions the extension of the attainment date for Docket: All documents in the Regarding One-Year Extensions the New Jersey portion of the electronic docket are listed in the http://www.regulations.gov index. Section 172(a)(2)(C) of subpart 1 of Philadelphia Area in a separate the CAA provides for EPA to extend the rulemaking in this Federal Register. Although listed in the index, some information is not publicly available, attainment date for an area by one year DATES: Written comments must be i.e., CBI or other information whose if the State has complied with all the received on or before December 9, 2010. disclosure is restricted by statute. requirements and commitments ADDRESSES: Submit your comments, Certain other material, such as pertaining to the area in the applicable identified by Docket ID Number EPA– copyrighted material, is not placed on implementation plan and no more than R03–OAR–2010–0574 by one of the the Internet and will be publicly a minimal number of exceedances of the following methods: available only in hard copy form. NAAQS has occurred in the attainment A. http://www.regulations.gov. Follow Publicly available docket materials are year. Up to two one-year extensions may the on-line instructions for submitting available either electronically at http:// be issued for a single nonattainment comments. www.regulations.gov or in hard copy area. Section 181(a)(5) of subpart 2 B. E-mail: [email protected]. during normal business hours at the Air contains a similar provision for the C. Mail: EPA–R03–OAR–2010–0574, Protection Division, U.S. Environmental ozone NAAQS, but instead of providing Brian K. Rehn, Acting Associate Protection Agency, Region III, 1650 for an extension where there has been Director, Office of Air Program Arch Street, Philadelphia, Pennsylvania a ‘‘minimal’’ number of exceedances, it Planning, Mailcode 3AP30, U.S. 19103. Copies of the States’ submittal allows an extension only if there is no Environmental Protection Agency, are available at the Delaware more than one exceedance of the Region III, 1650 Arch Street, Department of Natural Resources and NAAQS in the year proceeding the Philadelphia, Pennsylvania 19103. Environmental Control, 89 Kings extension year. However, the language D. Hand Delivery: At the previously- Highway, P.O. Box 1401, Dover, in section 181(a)(5) reflects the form of listed EPA Region III address. Such Delaware 19903; the Maryland the 1-hour ozone NAAQS and not the deliveries are only accepted during the Department of the Environment, 1800 1997 8-hour ozone NAAQS. 40 CFR

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51.907 sets forth how sections (b) For the second 1-year extension, shows that the 4th highest daily average 172(a)(2)(C) and 181(a)(5) apply to an the area’s 4th highest daily 8-hour 8-hour ozone concentrations for the area subject to the 1997 8-hour ozone value, averaged over both the original 2009 attainment year ozone season, for NAAQS. Under 40 CFR 51.907, an area attainment year and the first extension all monitors in the Philadelphia Area will meet the requirement of section year, is 0.084 ppm or less; and are measured at 0.084 ppm or less 172(a)(2)(C)(ii) or 181(a)(5)(B) of the (c) For purposes of paragraphs (a) and (Table 1), as required by 40 CFR CAA pertaining to one-year extensions (b) of this section, the area’s 4th highest 51.907(a). The monitoring data has been of the attainment date if: daily 8-hour average shall be from the quality controlled and quality assured. monitor with the highest 4th highest In the Technical Support Document (a) For the first 1-year extension, the daily 8-hour average of all the monitors (TSD) for this action, EPA evaluates the area’s 4th highest daily 8-hour average that represent that area. air quality monitoring data for the in the attainment year is 0.084 ppm or EPA’s review of the actual ozone air Philadelphia Area. For details, please less; quality data in the Air Quality System refer to EPA’s TSD.

TABLE 1—MONITORING DATA FOR 8-HOUR OZONE IN THE PHILADELPHIA AREA

4th Max Site ID County/state Year 8-hr (ppm)

10–001–0002 ...... Kent/Delaware ...... 2009 .066 10–003–1007 ...... New Castle/Delaware ...... 2009 .068 10–003–1010 ...... New Castle/Delaware ...... 2009 .068 10–003–1013 ...... New Castle/Delaware ...... 2009 .069 10–005–1002 ...... Sussex/Delaware ...... 2009 .067 10–005–1003 ...... Sussex/Delaware ...... 2009 .069 24–015–0003 ...... Cecil/Maryland ...... 2009 .072 42–017–0012 ...... Bucks/Pennsylvania ...... 2009 .074 42–029–0100 ...... Chester/Pennsylvania ...... 2009 .067 42–045–0002 ...... Delaware/Pennsylvania ...... 2009 .065 42–091–0013 ...... Montgomery/Pennsylvania ...... 2009 .070 42–101–0004 ...... Philadelphia/Pennsylvania ...... 2009 .059 42–101–0024 ...... Philadelphia/Pennsylvania ...... 2009 .072 34–001–0006 ...... Atlantic/New Jersey ...... 2009 .071 34–007–1001 ...... Camden/New Jersey ...... 2009 .071 34–011–0007 ...... Cumberland/New Jersey ...... 2009 .072 34–015–0002 ...... Gloucester/New Jersey ...... 2009 .071 34–021–0005 ...... Mercer/New Jersey ...... 2009 .071 34–029–0006 ...... Ocean/New Jersey ...... 2009 .071

EPA has determined that the ‘‘Pennsylvania-Ozone (8-Hour beyond those imposed by State law. For requirements for a one-year extension of Standard)’’, respectively. that reason, this proposed action: the attainment date have been fulfilled • III. Proposed Action Is not a ‘‘significant regulatory as follows: action’’ subject to review by the Office (1) The States have complied with all EPA is proposing to approve the of Management and Budget under requirements and commitments attainment date extension from June 15, Executive Order 12866 (58 FR 51735, pertaining to the area in the applicable 2010 to June 15, 2011 for the Delaware, October 4, 1993); ozone implementation plan. The Maryland, and Pennsylvania portions of • Does not impose an information applicable ozone implementation plans the Philadelphia Area, which is collection burden under the provisions can be found at 40 CFR 52.420, 40 CFR classified as moderate for the 1997 8- of the Paperwork Reduction Act 52.1070, 40 CFR 52.2020, for the States hour ozone NAAQS. EPA is soliciting (44 U.S.C. 3501 et seq.); public comments on the issues of Delaware, Maryland, and • Is certified as not having a discussed in this document. These Pennsylvania, respectively; and significant economic impact on a comments will be considered before substantial number of small entities (2) The Philadelphia Area’s 4th taking final action. highest daily 8-hour monitored value under the Regulatory Flexibility Act during the 2009 ozone season is 0.084 IV. Statutory and Executive Order (5 U.S.C. 601 et seq.); ppm or less. Reviews • Does not contain any unfunded Therefore, EPA approves the States’ Under the CAA, the Administrator is mandate or significantly or uniquely attainment date extension requests for required to approve a SIP submission affect small governments, as described the Delaware, Maryland, and that complies with the provisions of the in the Unfunded Mandates Reform Act Pennsylvania portions of the Act and applicable Federal regulations. of 1995 (Pub. L. 104–4); Philadelphia Area. As a result, the 42 U.S.C. 7410(k); 40 CFR 52.02(a). • Does not have Federalism charts in 40 CFR 81.308, 40 CFR 81.321, Thus, in reviewing SIP submissions, implications as specified in Executive and 40 CFR 81.339 are being modified EPA’s role is to approve State choices, Order 13132 (64 FR 43255, August 10, to reflect EPA’s approval of the States’ provided that they meet the criteria of 1999); attainment date extension request. the CAA. Accordingly, this action • Is not an economically significant Those charts are entitled ‘‘Delaware- merely proposes to approve State law as regulatory action based on health or Ozone (8-Hour Standard)’’, ‘‘Maryland- meeting Federal requirements and does safety risks subject to Executive Order Ozone (8–Hour Standard)’’, and not impose additional requirements 13045 (62 FR 19885, April 23, 1997);

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• Is not a significant regulatory action listed in the table below. The purpose stricter requirements of its own or subject to Executive Order 13211 (66 FR of this notice is to seek general pursuant to policies established by other 28355, May 22, 2001); information and comment regarding the Federal, State, or regional entities. • Is not subject to requirements of proposed regulatory flood elevations for These proposed elevations are used to Section 12(d) of the National the reach described by the downstream meet the floodplain management Technology Transfer and Advancement and upstream locations in the table requirements of the NFIP and also are Act of 1995 (15 U.S.C. 272 note) because below. The BFEs and modified BFEs are used to calculate the appropriate flood application of those requirements would a part of the floodplain management insurance premium rates for new be inconsistent with the Clean Air Act; measures that the community is buildings built after these elevations are and required either to adopt or to show made final, and for the contents in those • Does not provide EPA with the evidence of having in effect in order to buildings. discretionary authority to address, as qualify or remain qualified for Comments on any aspect of the Flood appropriate, disproportionate human participation in the National Flood Insurance Study and FIRM, other than health or environmental effects, using Insurance Program (NFIP). In addition, the proposed BFEs, will be considered. practicable and legally permissible these elevations, once finalized, will be A letter acknowledging receipt of any methods, under Executive Order 12898 used by insurance agents and others to comments will not be sent. calculate appropriate flood insurance (59 FR 7629, February 16, 1994). National Environmental Policy Act. In addition, this proposed extension premium rates for new buildings and the contents in those buildings. This proposed rule is categorically of the attainment deadline for the 1997 excluded from the requirements of 44 DATES: Comments are to be submitted 8-hour ozone NAAQS for the Delaware, CFR part 10, Environmental on or before February 7, 2011. Maryland, and Pennsylvania portions of Consideration. An environmental the Philadelphia Area does not have ADDRESSES: The corresponding impact assessment has not been Tribal implications as specified by preliminary Flood Insurance Rate Map prepared. Executive Order 13175 (65 FR 67249, (FIRM) for the proposed BFEs for each Regulatory Flexibility Act. As flood November 9, 2000), because the SIP is community is available for inspection at elevation determinations are not within not approved to apply in Indian country the community’s map repository. The the scope of the Regulatory Flexibility located in the State, and EPA notes that respective addresses are listed in the it will not impose substantial direct table below. Act, 5 U.S.C. 601–612, a regulatory costs on Tribal governments or preempt You may submit comments, identified flexibility analysis is not required. Tribal law. by Docket No. FEMA–B–1153, to Roy E. Executive Order 12866, Regulatory Wright, Deputy Director, Risk Analysis Planning and Review. This proposed List of Subjects in 40 CFR Part 81 Division, Federal Insurance and rule is not a significant regulatory action Environmental protection, Air Mitigation Administration, Federal under the criteria of section 3(f) of pollution control, Intergovernmental Emergency Management Agency, 500 C Executive Order 12866, as amended. relations, Ozone. Street, SW., Washington, DC 20472, Executive Order 13132, Federalism. Dated: October 28, 2010. (202) 646–3461, or (e-mail) This proposed rule involves no policies W.C. Early, [email protected]. that have federalism implications under Acting, Regional Administrator, Region III. FOR FURTHER INFORMATION CONTACT: Roy Executive Order 13132. [FR Doc. 2010–28256 Filed 11–8–10; 8:45 am] E. Wright, Deputy Director, Risk Executive Order 12988, Civil Justice BILLING CODE 6560–50–P Analysis Division, Federal Insurance Reform. This proposed rule meets the and Mitigation Administration, Federal applicable standards of Executive Order Emergency Management Agency, 500 C 12988. Street, SW., Washington, DC 20472, DEPARTMENT OF HOMELAND List of Subjects in 44 CFR Part 67 (202) 646–3461, or (e-mail) SECURITY [email protected]. Administrative practice and Federal Emergency Management SUPPLEMENTARY INFORMATION: The procedure, Flood insurance, Reporting Agency Federal Emergency Management Agency and recordkeeping requirements. (FEMA) proposes to make Accordingly, 44 CFR part 67 is 44 CFR Part 67 determinations of BFEs and modified proposed to be amended as follows: BFEs for each community listed below, [Docket ID FEMA–2010–0003; Internal in accordance with section 110 of the PART 67—[AMENDED] Agency Docket No. FEMA–B–1153] Flood Disaster Protection Act of 1973, 1. The authority citation for part 67 Proposed Flood Elevation 42 U.S.C. 4104, and 44 CFR 67.4(a). continues to read as follows: Determinations These proposed BFEs and modified BFEs, together with the floodplain Authority: 42 U.S.C. 4001 et seq.; AGENCY: Federal Emergency management criteria required by 44 CFR Reorganization Plan No. 3 of 1978, 3 CFR, Management Agency, DHS. 60.3, are the minimum that are required. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, ACTION: Proposed rule. They should not be construed to mean 3 CFR, 1979 Comp., p. 376. that the community must change any § 67.4 [Amended] SUMMARY: Comments are requested on existing ordinances that are more the proposed Base (1% annual-chance) stringent in their floodplain 2. The tables published under the Flood Elevations (BFEs) and proposed management requirements. The authority of § 67.4 are proposed to be BFE modifications for the communities community may at any time enact amended as follows:

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

Harrison County, Iowa, and Incorporated Areas

Boyer River (Left Overbank) Approximately 0.66 mile upstream of I–29 ...... None +1003 Unincorporated Areas of Harrison County. Approximately 150 feet upstream of 296th Street ...... None +1018 Boyer River (Left Overbank) From the Pottawattamie County boundary to approxi- None +1003 Unincorporated Areas of (overflow effects from Mis- mately 0.66 mile upstream of I–29. Harrison County. souri River). Boyer River (Right Overbank) Approximately 200 feet upstream of I–29 ...... None +1003 City of Missouri Valley, Unincorporated Areas of Harrison County. Approximately 150 feet upstream of 296th Street ...... None +1018 Boyer River (Right Overbank) From the Pottawattamie County boundary to approxi- None +1003 Unincorporated Areas of (overflow effects from Mis- mately 200 feet upstream of I–29. Harrison County. souri River). Boyer River (Riverward) ...... Approximately 250 feet downstream of I–29 ...... None +1003 Unincorporated Areas of Harrison County. Approximately 150 feet upstream of 296th Street ...... None +1018 Boyer River (Riverward) From the Pottawattamie County boundary to approxi- None +1003 Unincorporated Areas of (overflow effects from Mis- mately 250 feet downstream of I–29. Harrison County. souri River). Little Sioux River (Left At the confluence with the Missouri River ...... None +1029 City of Little Sioux, Unin- Overbank). corporated Areas of Har- rison County. Approximately 2,000 feet upstream of 120th Street .... None +1040 Little Sioux River (Right At the confluence with the Missouri River ...... None +1029 Unincorporated Areas of Overbank). Harrison County. Approximately 2,000 feet upstream of 120th Street .... None +1040 Little Sioux River (Riverward) At the confluence with the Missouri River ...... None +1029 Unincorporated Areas of Harrison County. Approximately 2,000 feet upstream of 120th Street .... None +1041 Missouri River...... Approximately 0.88 mile upstream of the +1003 +1004 City of Missouri Valley, Pottawattamie County boundary. City of Modale, City of Mondamin, Unincor- porated Areas of Har- rison County. At the Monona County boundary ...... +1032 +1034 Willow Creek (Left Overbank) Approximately 1.48 miles upstream of the confluence None +1006 Unincorporated Areas of with the Boyer River. Harrison County. Approximately 50 feet downstream of Canal Street .... None +1008 Willow Creek (Left Overbank) Approximately 0.75 mile upstream of Huron Street ..... None +1010 City of Missouri Valley, Unincorporated Areas of Harrison County. Approximately 0.45 mile upstream of 291st Street ...... None +1021 Willow Creek (Left Overbank) From the confluence with the Boyer River to approxi- None +1006 Unincorporated Areas of (backwater effects from mately 1.48 miles upstream of the confluence with Harrison County. Boyer River). the Boyer River. Willow Creek (Left Overbank) From approximately 1,850 feet upstream of Huron +1009 +1010 City of Missouri Valley, (overflow effects from Mis- Street to approximately 0.75 mile upstream of Unincorporated Areas of souri River). Huron Street. Harrison County. Willow Creek (Right From the confluence with the Boyer River to approxi- None +1006 Unincorporated Areas of Overbank) (backwater ef- mately 1.8 miles upstream of the confluence with Harrison County. fects from Boyer River). the Boyer River. Willow Creek (Right Approximately 1.8 miles upstream of the confluence None +1006 City of Missouri Valley, Overbank) (overflow ef- with the Boyer River. Unincorporated Areas of fects from Missouri River). Harrison County. Approximately 0.45 mile upstream of 291st Street ...... None +1011 Willow Creek (Riverward) ..... Approximately 0.76 mile upstream of the confluence None +1010 City of Missouri Valley, with the Boyer River. Unincorporated Areas of Harrison County. Approximately 0.45 mile upstream of 291st Street ...... None +1021 Willow Creek (Riverward) From the confluence with the Boyer River to approxi- None +1010 Unincorporated Areas of (backwater effects from mately 0.76 mile upstream of the confluence with Harrison County. Boyer River). the Boyer River.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Little Sioux Maps are available for inspection at City Hall, 407 1st Street, Little Sioux, IA 51545. City of Missouri Valley Maps are available for inspection at the City Clerk’s Office, 223 East Erie Street, Missouri Valley, IA 51555. City of Modale Maps are available for inspection at City Hall, 310 East Palmer Street, Modale, IA 51556. City of Mondamin Maps are available for inspection at City Hall, 120 South Main Street, Mondamin, IA 51557. Unincorporated Areas of Harrison County Maps are available for inspection at the Harrison County Zoning Administration Building, 301 North 6th Avenue, Logan, IA 51546.

Mercer County, New Jersey (All Jurisdictions)

Assunpink Creek ...... At the confluence with the Delaware River ...... +23 +25 City of Trenton. Approximately 120 feet upstream of Jackson Street ... +24 +25 Beden Brook ...... At Princeton Avenue (approximately 800 feet south of None +164 Borough of Hopewell. the intersection of Princeton Avenue and East Prospect Street). At parking lot approximately 710 feet south of the None +164 intersection of Princeton Avenue and East Prospect Street. Delaware River ...... Approximately 1,000 feet downstream of U.S. Route 1 +20 +19 City of Trenton, Township (Trenton-Morrisville Toll Bridge). of Ewing, Township of Hopewell. Approximately 0.5 mile upstream of the confluence of +60 +61 Moores Creek and the Delaware River. Delaware River ...... Approximately 2.2 miles downstream of U.S. Route 1 +17 +18 City of Trenton, Township (Trenton-Morrisville Toll Bridge). of Hamilton. Approximately 1.8 miles downstream of U.S. Route 1 +17 +18 (Trenton-Morrisville Toll Bridge). Jacobs Creek ...... At the confluence with the Delaware River ...... +47 +46 Township of Ewing, Town- ship of Hopewell. Approximately 0.4 mile upstream of State Route 29 +47 +46 (River Road). Miry Run ...... At the Township of Hamilton/Township of West Wind- None +72 Township of Robbinsville, sor corporate limits. Township of West Wind- sor. Approximately 1,150 feet downstream of Pond Road +71 +72 Moores Creek ...... At the confluence with the Delaware River ...... +59 +60 Township of Hopewell. Approximately 0.7 mile downstream of Valley Road ... None +60 Stony Brook ...... Approximately 75 feet downstream of Pennington- None +147 Borough of Pennington. Rocky Hill Road. Approximately 1,575 feet upstream of Pennington- None +149 Rocky Hill Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Borough of Hopewell Maps are available for inspection at the Hopewell Borough Hall, 4 Columbia Avenue, Hopewell, NJ 08525. Borough of Pennington Maps are available for inspection at Borough Hall, 30 North Main Street, Pennington, NJ 08534.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

City of Trenton Maps are available for inspection at City Hall, 319 East State Street, Trenton, NJ 08608. Township of Ewing Maps are available for inspection at the Township Municipal Building, 2 Jake Garzio Drive, Ewing, NJ 08628. Township of Hamilton Maps are available for inspection at the Township Municipal Building, 2090 Greenwood Avenue, Hamilton, NJ 08609. Township of Hopewell Maps are available for inspection at the Hopewell Township Municipal Building, 201 Washington Crossing, Titusville, NJ 08560. Township of Robbinsville Maps are available for inspection at the Township Municipal Building, One Washington Boulevard, Robbinsville, NJ 08691. Township of West Windsor Maps are available for inspection at the Township Municipal Building, 271 Clarksville Road, West Windsor, NJ 08550.

Nash County, North Carolina, and Incorporated Areas

Cokey Swamp...... Approximately 90 feet downstream of Old Wilson +106 +107 City of Rocky Mount. Road (Secondary Road 1002). Approximately 1.1 mile upstream of Old Wilson Road None +118 (Secondary Road 1002). Cowlick Creek ...... Just upstream of U.S. Highway 64 ...... +80 +79 City of Rocky Mount. Just downstream of Cortland Avenue ...... +95 +92 Cypress Creek ...... At the confluence with the Tar River ...... +170 +171 Unincorporated Areas of Nash County. Approximately 300 feet upstream of Lake Royale +170 +171 Road (Secondary Road 1316). Fishing Creek ...... Just upstream of the railroad ...... +98 +97 Unincorporated Areas of Nash County. Approximately 50 feet downstream of Ward Road +129 +132 (Secondary Road 1502). Grape Branch ...... Approximately 200 feet upstream of Beechwood Drive +108 +107 City of Rocky Mount, Unin- corporated Areas of Nash County. Approximately 1,100 feet upstream of Beechwood +110 +107 Drive. Indian Branch ...... Approximately 175 feet downstream of Gay Road +71 +70 City of Rocky Mount. (Secondary Road 1268). Approximately 190 feet upstream of Hunting Lodge None +91 Drive. Little Cokey Swamp ...... Approximately 250 feet downstream of Greenpasture +92 +93 City of Rocky Mount. Road (Secondary Road 1141). Approximately 50 feet downstream of Kingston Ave- +129 +130 nue. Little Cokey Swamp Tributary At the confluence with Little Cokey Swamp ...... +106 +105 City of Rocky Mount. Approximately 200 feet upstream of South Church None +126 Street. Little Creek ...... Approximately 500 feet downstream of the railroad .... +198 +199 Town of Middlesex, Unin- corporated Areas of Nash County. Approximately 0.5 mile upstream of Debnam Road .... None +278 Maple Creek ...... Approximately 0.3 mile upstream of Bethlehem Road +110 +111 City of Rocky Mount, Unin- (Secondary Road 1142). corporated Areas of Nash County. Approximately 280 feet upstream of South Old Car- None +166 riage Road. Parkers Canal ...... At the confluence with Cowlick Creek ...... +80 +79 City of Rocky Mount. Approximately 60 feet downstream of Atlantic Avenue +96 +98 Pig Basket Creek ...... Approximately 900 feet upstream of Red Oak Road +128 +127 Town of Red Oak, Unin- (Secondary Road 1003). corporated Areas of Nash County. Approximately 0.4 mile upstream of Taylors Store +156 +155 Road (Secondary Road 1004). Polecat Branch ...... At the confluence with Maple Creek ...... +111 +112 Unincorporated Areas of Nash County. Approximately 0.8 mile upstream of the confluence +118 +120 with Polecat Branch Tributary. Sapony Creek ...... Approximately 200 feet upstream of Sandy Cross +133 +132 Unincorporated Areas of Road (Secondary Road 1717). Nash County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

Approximately 1,550 feet upstream of NC Highway 58 None +145 Stony Creek ...... Approximately 0.5 mile downstream of Red Oak Road +129 +130 City of Rocky Mount, Town (Secondary Road 1003). of Nashville, Town of Red Oak. Just upstream of U.S. Route 64 ...... +151 +152 Swift Creek...... Approximately 1.8 miles downstream of the +90 +88 City of Rocky Mount, Unin- Edgecombe County boundary. corporated Areas of Nash County. At Red Oak Road (Secondary Road 1003) ...... +130 +131 Tar River ...... Approximately 150 feet downstream of South Old +132 +133 City of Rocky Mount, Town Carriage Road. of Spring Hope, Unincor- porated Areas of Nash County. At the confluence with Cypress Creek ...... +170 +171

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Rocky Mount Maps are available for inspection at the Planning Department, 331 South Franklin Street, Rocky Mount, NC 27802. Town of Middlesex Maps are available for inspection at the Town Hall, 10232 South Nash Street, Middlesex, NC 27557. Town of Nashville Maps are available for inspection at the Town Hall, 499 South Barnes Street, Nashville, NC 27856. Town of Red Oak Maps are available for inspection at the Town Hall, 8406 Main Street, Red Oak, NC 27868. Town of Spring Hope Maps are available for inspection at the Town Hall, 118 West Railroad Street, Spring Hope, NC 27882. Unincorporated Areas of Nash County Maps are available for inspection at the Nash County Planning Department, 120 West Washington Street, Suite 2110, Nashville, NC 27856.

El Paso County, Texas, and Incorporated Areas

Flow Path 16 ...... Just upstream of Donald Drive ...... None +3960 City of El Paso. Approximately 1,000 feet upstream of Rushing Drive +3977 +3975 Flow Path Number 27 Playa Just upstream of Vocational Drive ...... None +3663 City of El Paso. Drain. Just downstream of Clark Drive ...... None +3699 Flow Path Number 29 ...... Just upstream of Del Monte Street ...... None +3738 City of El Paso. Just downstream of Prestcott Drive ...... None +3771 Flow Path Number 32 ...... Just upstream of Barron Road ...... +3668 +3670 City of El Paso. Just downstream of Patrol Drive ...... +3714 +3716 Flow Path Number 36...... Just upstream of the confluence with Mesa Spur +3662 +3666 City of El Paso. Drain. Approximately 0.75 mile upstream of the confluence +3720 +3724 with Mesa Spur Drain. Flow Path Number 41...... Approximately 0.37 mile downstream of the con- None +3871 City of El Paso. fluence of Flow Path Number 41A. Approximately 0.48 mile upstream of the confluence None +3987 of Flow Path Number 41A. Flow Path Number 44 ...... Approximately 0.67 mile upstream of the confluence None +3923 Unincorporated Areas of El of Flow Path Number 43. Paso County. Approximately 1.04 miles upstream of the confluence None +3956 of Flow Path Number 43. Flow Path Number 45...... Approximately 0.57 mile downstream of the con- None +3783 Town of Vinton, Unincor- fluence of Flow Path Number 45A. porated Areas of El Paso County. Approximately 1.50 miles upstream of the confluence None +4515 of Flow Path Number 45B.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

Horizon Arroyo Stream 2 ...... Approximately 65 feet downstream of I–10 (Frontage +3752 +3747 Unincorporated Areas of El Road). Paso County. Just downstream of Access Road ...... +3888 +3892

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of El Paso Maps are available for inspection at City Hall, 2 Civic Center Plaza, El Paso, TX 79901. Town of Vinton Maps are available for inspection at 436 East Vinton Road, Vinton, TX 79821. Unincorporated Areas of El Paso County Maps are available for inspection at 500 East San Antonio Street, Room 407, El Paso, TX 79901.

Bayfield County, Wisconsin, and Incorporated Areas

Lake Superior ...... Entire shoreline within community ...... None +605 City of Bayfield, City of Washburn, Red Cliff Band of Lake Superior Chippewa, Unincor- porated Areas of Bayfield County. Lower Eau Claire Lake ...... Entire shoreline within community ...... None +1124 Unincorporated Areas of Bayfield County. Middle Eau Claire Lake ...... Entire shoreline within community ...... None +1128 Unincorporated Areas of Bayfield County. Namekagon Lake ...... Entire shoreline within community ...... None +1398 Unincorporated Areas of Bayfield County. Upper Eau Claire Lake ...... Entire shoreline within community ...... None +1137 Unincorporated Areas of Bayfield County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Bayfield Maps are available for inspection at 125 South 1st Street, Bayfield, WI 54814. City of Washburn Maps are available for inspection at 119 Washington Avenue, Washburn, WI 54891. Red Cliff Band of Lake Superior Chippewa Maps are available for inspection at 88385 State Highway 13, Bayfield, WI 54814. Unincorporated Areas of Bayfield County Maps are available for inspection at 117 East 5th Street, Washburn, WI 54891.

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(Catalog of Federal Domestic Assistance No. ADDRESSES: The corresponding made final, and for the contents in those 97.022, ‘‘Flood Insurance.’’) preliminary Flood Insurance Rate Map buildings. Dated: October 29, 2010. (FIRM) for the proposed BFEs for each Comments on any aspect of the Flood Sandra K. Knight, community is available for inspection at Insurance Study and FIRM, other than Deputy Federal Insurance and Mitigation the community’s map repository. The the proposed BFEs, will be considered. Administrator, Mitigation, Department of respective addresses are listed in the A letter acknowledging receipt of any Homeland Security, Federal Emergency table below. comments will not be sent. Management Agency. You may submit comments, identified National Environmental Policy Act. [FR Doc. 2010–28224 Filed 11–8–10; 8:45 am] by Docket No. FEMA–B–1155, to Roy E. This proposed rule is categorically BILLING CODE 9110–12–P Wright, Deputy Director, Risk Analysis excluded from the requirements of 44 Division, Federal Insurance and CFR part 10, Environmental Mitigation Administration, Federal Consideration. An environmental DEPARTMENT OF HOMELAND Emergency Management Agency, 500 C impact assessment has not been SECURITY Street, SW., Washington, DC 20472, prepared. Federal Emergency Management (202) 646–3461, or (e-mail) Regulatory Flexibility Act. As flood Agency [email protected]. elevation determinations are not within the scope of the Regulatory Flexibility FOR FURTHER INFORMATION CONTACT: Roy 44 CFR Part 67 Act, 5 U.S.C. 601–612, a regulatory E. Wright, Deputy Director, Risk flexibility analysis is not required. [Docket ID FEMA–2010–0003; Internal Analysis Division, Federal Insurance Executive Order 12866, Regulatory Agency Docket No. FEMA–B–1155] and Mitigation Administration, Federal Planning and Review. This proposed Emergency Management Agency, 500 C rule is not a significant regulatory action Proposed Flood Elevation Street, SW., Washington, DC 20472, Determinations under the criteria of section 3(f) of (202) 646–3461, or (e-mail) Executive Order 12866, as amended. AGENCY: Federal Emergency [email protected]. Executive Order 13132, Federalism. Management Agency, DHS. SUPPLEMENTARY INFORMATION: The This proposed rule involves no policies ACTION: Proposed rule. Federal Emergency Management Agency that have federalism implications under Executive Order 13132. SUMMARY: Comments are requested on (FEMA) proposes to make determinations of BFEs and modified Executive Order 12988, Civil Justice the proposed Base (1% annual-chance) Reform. This proposed rule meets the Flood Elevations (BFEs) and proposed BFEs for each community listed below, in accordance with section 110 of the applicable standards of Executive Order BFE modifications for the communities 12988. listed in the table below. The purpose Flood Disaster Protection Act of 1973, of this notice is to seek general 42 U.S.C. 4104, and 44 CFR 67.4(a). List of Subjects in 44 CFR Part 67 information and comment regarding the These proposed BFEs and modified Administrative practice and proposed regulatory flood elevations for BFEs, together with the floodplain procedure, Flood insurance, Reporting the reach described by the downstream management criteria required by 44 CFR and recordkeeping requirements. and upstream locations in the table 60.3, are the minimum that are required. below. The BFEs and modified BFEs are They should not be construed to mean Accordingly, 44 CFR part 67 is a part of the floodplain management that the community must change any proposed to be amended as follows: measures that the community is existing ordinances that are more PART 67—[AMENDED] required either to adopt or to show stringent in their floodplain evidence of having in effect in order to management requirements. The 1. The authority citation for part 67 qualify or remain qualified for community may at any time enact continues to read as follows: participation in the National Flood stricter requirements of its own or Insurance Program (NFIP). In addition, Authority: 42 U.S.C. 4001 et seq.; pursuant to policies established by other Reorganization Plan No. 3 of 1978, 3 CFR, these elevations, once finalized, will be Federal, State, or regional entities. 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, used by insurance agents and others to These proposed elevations are used to 3 CFR, 1979 Comp., p. 376. calculate appropriate flood insurance meet the floodplain management premium rates for new buildings and requirements of the NFIP and also are § 67.4 [Amended] the contents in those buildings. used to calculate the appropriate flood 2. The tables published under the DATES: Comments are to be submitted insurance premium rates for new authority of § 67.4 are proposed to be on or before February 7, 2011. buildings built after these elevations are amended as follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

Gilmer County, Georgia, and Incorporated Areas

Cartecay River ...... Approximately 0.24 mile upstream of the confluence +1291 +1290 Unincorporated Areas of with Owltown Creek. Gilmer County. Approximately 1.12 miles upstream of Holt Bridge None +1519 Road.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Gilmer County Maps are available for inspection at the Gilmer County Courthouse, 1 Broad Street, Ellijay, GA 30540.

La Porte County, Indiana, and Incorporated Areas

Lake Michigan ...... Entire shoreline within community ...... None +585 City of Michiana Shores, Unincorporated Areas of La Porte County. Lake Michigan ...... Entire shoreline within community ...... +587 +585 Town of Long Beach. Lake Michigan ...... Entire shoreline within community ...... +584 +585 City of Michigan City. Otter Creek ...... At the confluence with Trail Creek ...... None +592 Town of Pottawattamie Park. Approximately 1,000 feet downstream of Karwick None +598 Road. Trail Creek ...... At the confluence with Lake Michigan ...... +584 +585 City of Michigan City. Approximately 1,100 feet upstream of E Street ...... +584 +585 Trail Creek ...... Approximately 1,100 feet upstream of Liberty Trail None +591 Town of Pottawattamie Road. Park. At the confluence with Otter Creek ...... None +592 White Ditch ...... Approximately 160 feet downstream of Michiana Drive None +604 City of Michiana Shores, City of Michigan City, Unincorporated Areas of La Porte County. Approximately 1,840 feet upstream of Oakdale Drive None +607

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Michiana Shores Maps are available for inspection at City Hall, 601 El Portal South Drive, Michiana Shores, IN 46360. City of Michigan City Maps are available for inspection at City Hall, 100 East Michigan Boulevard, Michigan City, IN 46360. Town of Long Beach Maps are available for inspection at the Town Hall, 2400 Oriole Trail, Long Beach, IN 46360. Town of Pottawattamie Park Maps are available for inspection at the La Porte County Government Complex, 809 State Street, Suite 503A, La Porte, IN 46350. Unincorporated Areas of La Porte County Maps are available for inspection at the La Porte County Government Complex, 809 State Street, Suite 503A, La Porte, IN 46350.

Butte County, South Dakota, and Incorporated Areas

Belle Fourche River ...... Just upstream of U.S. Route 212 ...... +3012 +3008 City of Belle Fourche, Un- incorporated Areas of Butte County. Approximately 0.7 mile upstream of Fairground Road +3017 +3019 Hay Creek ...... Approximately 500 feet downstream of U.S. Route 85 +3041 +3042 City of Belle Fourche, Un- incorporated Areas of Butte County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

Approximately 0.9 mile downstream of Black Angus None +3089 Lane. Redwater River ...... Approximately 1,200 feet downstream of U.S. Route +3018 +3016 City of Belle Fourche, Un- 212 Business. incorporated Areas of Butte County. Approximately 700 feet upstream of U.S. Route 212 +3024 +3023 Business. Willow Creek ...... Approximately 0.5 mile downstream of Snoma Street None +3022 City of Belle Fourche, Un- incorporated Areas of Butte County. Approximately 1,650 feet downstream of West Wood None +3183 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Belle Fourche Maps are available for inspection at 511 6th Avenue, Belle Fourche, SD 57717. Unincorporated Areas of Butte County Maps are available for inspection at 830 6th Avenue, Belle Fourche, SD 57717.

Custer County, South Dakota, and Incorporated Areas

Battle Creek ...... Approximately 1.6 miles downstream of Chicago and None +3262 Town of Hermosa, Unin- Northwest Railroad. corporated Areas of Custer County. Approximately 600 feet upstream of Paradise Road ... +3390 +3388 Ferguson Split Flow—Battle Approximately 0.5 mile downstream of Fairgrounds None +3260 Town of Hermosa, Unin- Creek. Place. corporated Areas of Custer County. Approximately 130 feet upstream of Donna Street ...... +3290 +3292 Grace Coolidge Creek ...... Approximately 180 feet downstream of the divergence +3345 +3341 Unincorporated Areas of from Battle Creek. Custer County. Approximately 3.1 miles upstream of State Highway None +3473 36. Railroad Spill Flow—Battle Just upstream of the confluence with Battle Creek ..... None +3290 Town of Hermosa, Unin- Creek. corporated Areas of Custer County. Just downstream of the divergence from Battle Creek None +3294 South Bank Split Flow—Bat- Approximately 1,200 feet upstream of the confluence None +3310 Unincorporated Areas of tle Creek. with Battle Creek. Custer County. Approximately 870 feet upstream of Yellow Oak Road None +3325

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Hermosa Maps are available for inspection at 420 Mount Rushmore Road, Custer, SD 57730. Unincorporated Areas of Custer County Maps are available for inspection at 420 Mount Rushmore Road, Custer, SD 57730.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation ∧ Elevation in meters Communities affected (MSL) Effective Modified

Forest County, Wisconsin, and Incorporated Areas

Metonga Lake ...... Entire Shoreline within community ...... None +1599 Unincorporated Areas of Forest County. Peshtigo Lake ...... Entire Shoreline within community ...... None +1591 Unincorporated Areas of Forest County. Roberts Lake ...... Entire Shoreline within community ...... None +1594 Unincorporated Areas of Forest County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Forest County Maps are available for inspection at 200 East Madison Avenue, Crandon, WI 54520.

La Crosse County, Wisconsin, and Incorporated Areas

Black River ...... Approximately 0.5 mile downstream of the confluence None +694 Unincorporated Areas of with Davis Creek. La Crosse County. Approximately 3.36 miles upstream of the confluence None +706 with Hardies Creek. Ebner Coulee Main Channel Approximately 1,584 feet downstream of 29th Street .. None +659 City of La Crosse, Unin- corporated Areas of La Crosse County. Approximately 1,584 feet upstream of 29th Street ...... None +697 Ebner Coulee Southeast Approximately 52.8 feet upstream of 29th Street ...... None +665 City of La Crosse. Bank. Approximately 528 feet upstream of 29th Street ...... None +673

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to Roy E. Wright, Deputy Director, Risk Analysis Division, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of La Crosse Maps are available for inspection at City Hall, 400 La Crosse Street, La Crosse, WI 54601. Unincorporated Areas of La Crosse County Maps are available for inspection at 400 4th Street North, La Crosse, WI 54601.

(Catalog of Federal Domestic Assistance No. Dated: October 29, 2010. 97.022, ‘‘Flood Insurance.’’) Sandra K. Knight, Deputy Federal Insurance and Mitigation Administrator, Mitigation, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. 2010–28225 Filed 11–8–10; 8:45 am] BILLING CODE 9110–12–P

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Notices Federal Register Vol. 75, No. 216

Tuesday, November 9, 2010

This section of the FEDERAL REGISTER not constitute delivery. Facsimile, and Program Administration contains documents other than rules or postage due applications will not be I. Funding Opportunities Description proposed rules that are applicable to the accepted. public. Notices of hearings and investigations, This NOFA requests applications committee meetings, agency decisions and FOR FURTHER INFORMATION CONTACT: from eligible applicants for loans to rulings, delegations of authority, filing of Timothy James, Financial and Loan establish and operate revolving loan petitions and applications and agency Analyst, Multi-Family Housing STOP funds for the preservation of low- statements of organization and functions are 0781 (Room 1263–S), U.S. Department income MFH properties within the examples of documents appearing in this section. of Agriculture, Rural Housing Service, Rural Development Sections 515, 514 or Michael Steininger, Director and 516 Multi-Family Housing Guaranteed Loan Division, Multi-Family portfolio. Rural Development’s DEPARTMENT OF AGRICULTURE Housing STOP 0781 (Room 1263–S) regulations for the Section 514, 515 and 1400 Independence Avenue, SW., 516 Multi-Family Housing Program are Rural Housing Service Washington, DC 20250–0781 or by published at 7 CFR part 3560. telephone at (202) 720–1094 or (202) Housing that is constructed or Notice of Funding Availability (NOFA): 720–1610, TDD (302) 857–3585 or via repaired must meet the Rural Section 515 Multi-Family Housing e-mail at Development design and construction Preservation Revolving Loan Fund [email protected] or standards and the development (PRLF) Demonstration Program for [email protected] (Please standards contained in 7 CFR part 1924, Fiscal Year 2011 note the phone numbers are not toll free Subparts A and C, respectively. Once numbers.) constructed, Section 514, 515, and 516 AGENCY: Rural Housing Service, USDA. Multi-Family Housing must be managed ACTION: Notice. SUPPLEMENTARY INFORMATION: in accordance with the program’s Paperwork Reduction Act regulation, 7 CFR part 3560. Tenant Overview Information eligibility is limited to persons who SUMMARY: The Rural Housing Service of Under the Paperwork Reduction Act, qualify as a very low-, or low-income, Rural Development announces the 44 U.S.C. 3501 (2005) et seq., OMB must household or who are eligible under the availability of funds and the timeframe approve all ‘‘collections of information’’ requirements established to qualify for to submit applications for loans to by Rural Development. The Act defines housing benefits provided by sources private non-profit organizations, or such ‘‘collection of information’’ as a other than Rural Development, such as non-profit organizations’ affiliate loan requirement for ‘‘answers to * * * U.S. Department of Housing and Urban Development Section 8 assistance or funds and State and local housing identical reporting or recordkeeping Low Income Housing Tax Credit finance agencies, to carry out a requirements imposed on ten or more assistance, when a tenant receives such demonstration program to provide persons * * *.’’ (44 U.S.C. 3502(3)(A)) housing benefits. Additional tenant revolving loans for the preservation and Because this NOFA will receive less eligibility requirements are contained in revitalization of low-income Multi- than 10 respondents, the Paperwork 7 CFR Sections 3560.152, 3560.577, and Family Housing (MFH). Housing that is Reduction Act does not apply. 3560.624. assisted by this demonstration program Programs Affected must be financed by Rural Development II. Award Information through its MFH loan program under This program is listed in the Catalog The Act, made funding available for Sections 515, 514 and 516 of the of Federal Domestic Assistance under loans to private non-profit Housing Act of 1949. The goals of this Number 10.415. organizations, or such non-profit demonstration program will be achieved Overview organizations’ affiliate loan funds and through loans made to intermediaries. State and local housing finance The intermediaries will establish their The Agriculture, Rural Development, agencies, to carry out a housing programs for the purpose of providing Food and Drug Administration, and demonstration program to provide loans to ultimate recipients for the Related Agencies Appropriations Act, revolving loans for the preservation of preservation and revitalization of low 2010 (Act) (Division A of Pub. L. 111– low income Multi-Family housing income Sections 515, 514 and 516 MFH 80), October 21, 2009 provided funding project. The total amount of funding as affordable housing. for, and authorizes Rural Development available for this program is DATES: The deadline for receipt of all to, establish a revolving loan fund $14,099,227. Loans to intermediaries applications in response to this NOFA demonstration program for the under this demonstration program shall is 5 p.m., Eastern Time, January 10, preservation and revitalization of the have an interest rate of no more than 2011. The application closing deadline Sections 515, 514 and 516 Multi-Family one percent and the Secretary of is firm as to date and hour. Rural Housing portfolio. The Multi-Family Agriculture may defer the interest and Development will not consider any Housing program is authorized by principal payment to Rural application that is received after the Sections 514, 515 and 516 of the Development for up to three years closing deadline. Applicants intending Housing Act of 1949 as amended, during the first three years of the loan. to mail applications must provide provides Rural Development the The term of such loans shall not exceed sufficient time to permit delivery on or authority to make loans for low income 30 years. Funding priority will be given before the closing deadline. Acceptance Multi-Family Housing, farm labor to entities with equal or greater by a post office or private mailer does housing, and related facilities. matching funds from third parties,

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including housing tax credits for rural (i) There is adequate assurance of PRLF loans must have been disbursed to housing assistance and to entities with repayment of the loan evidenced by the eligible ultimate recipients; experience in the administration of fiscal and managerial capabilities of the (ii) Intermediaries requesting revolving loan funds and the proposed intermediary. subsequent loans must meet the preservation of Multi-Family Housing. (ii) The amount of the loan, together requirements of section III(2) of this with other funds available, is adequate Funding Restrictions NOFA; to complete the preservation or (iii) The delinquency rate of the No loan made to a single intermediary revitalization of the project. outstanding loans of the intermediary’s applicant under this demonstration (iii) The intermediary’s prior calendar PRLF revolving fund does not exceed 4 program may exceed $2,125,000 and year audit is an unqualified audited percent at the time of application for the any such loan may be limited by opinion signed by an independent subsequent loan; geographic area so that multiple loan certified public accountant acceptable to (iv) The intermediary is in recipients are not providing similar the agency and performed in accordance compliance with all applicable services to the same service areas. All with Generally Accepted Government regulations and its loan agreements with PRLF loans will have an obligation Auditing Standards (GAGAS). The expiration period of two years from the unqualified audited opinion must Rural Development; date of obligation. provide a statement relating to the (v) Subsequent loans will not exceed Prior fiscal years PRLF loans that accuracy of the financial statements. $1 million each and not more than one were obligated and not closed within (d) Intermediaries, and the principals loan will be approved by Rural the above two years obligation period of the intermediaries, must not be Development for an intermediary in any must be de-obligated to allow more suspended, debarred, or excluded based single fiscal year unless the request is immediate program use unless a six on the ‘‘List of Parties Excluded from authorized by a PRLF appropriation; month extension is granted by the Federal Procurement and and National Office. Nonprocurement Programs.’’ In (vi) Total outstanding PRLF Loans made to the PRLF ultimate addition, intermediaries and their indebtedness of an intermediary to recipient must meet the intent of principals must not be delinquent on Rural Development will not exceed $15 providing decent, safe, and sanitary Federal debt or be Federal judgment million at any time. rural housing and be consistent with the debtors. Only eligible applicants will be requirements of Title V of the Housing (e) The intermediary and its principal scored and ranked. Funding priority Act of 1949, as amended. officers (including immediate family) will be given to entities with equal or III. Eligibility Information must have no legal or financial interest greater matching funds, including in the ultimate recipient. housing tax credits for rural housing Applicant Eligibility (f) The intermediary’s Debt Service assistance. Refer to the Selection (1) Eligibility requirements— Coverage Ratio (DSCR) must be greater Criteria section of the NOFA for further Intermediary. than 1.25 for the fiscal year immediately information on funding priorities. (a) The types of entities which may prior to the year of application. The (2) Eligibility requirements—Ultimate become intermediaries are private non- DSCR is the financial ratio the loan recipients. profit organizations, which may include committee will use to determine an (a) To be eligible to receive loans from faith based organizations, or such non- applicant’s capacity to borrow and the PRLF, ultimate recipients must: profit organizations’ affiliate loan funds service additional debt. (i) Currently have a Rural and State and local housing finance The loan committee will use the Development Section 515, 514 loans, or agencies. intermediary’s Earnings Before Interest 516 grant for the property to be assisted (b) The intermediary must have: and Taxes (EBIT) to determine DSCR. by the PRLF demonstration program. EBIT is determined by adding net (i) The legal authority necessary for (ii) Certify that the principal officers income or net loss to depreciation and carrying out the proposed loan purposes (including their immediate family) of interest expense. The loan committee and for obtaining, giving security, and the ultimate recipient, hold no legal or will compare the principal and interest repaying the proposed loan. financial interest in the intermediary. (ii) A proven record of successfully payment multiplied by the DSCR to the (iii) Be in compliance with all Rural assisting low-income Multi-Family EBIT derived from the applicants Development program requirements or Housing projects. Such record will consolidated income statement. For have an Agency approved workout plan include recent experience in loan example, if an applicant requests a loan in place which will correct a non- making and loan servicing that is amount of $2,000,000 at a one percent compliance status. similar in nature to the loans proposed interest rate amortized over 30 years, the for the PRLF demonstration program. principal and interest payments will be (b) Any delinquent debt to the Federal The applicant must provide $77,193, annually. Therefore, an Government including a non-tax documentation of a delinquency and applicant who requests $2,000,000 judgment lien (other than a judgment in loss rate not which does not exceed four needs an EBIT of at least $96,491.00 the U.S. tax courts), by the ultimate percent. The applicant will be ($77,193 × 1.25). Only debt service from recipient or any of its principals, shall responsible for providing such unrestricted revolving loans will be cause the proposed ultimate recipient to information to Rural Development. considered in the above calculation. An be ineligible to receive a loan from the (iii) A staff with loan making and unrestricted loan is an account in which PRLF. servicing experience. the accumulated revenues are not (c) PRLF loan funds may not be used (iv) A plan showing Rural dictated by a donor or sponsor. to satisfy the delinquency. The ultimate Development, that the ultimate (g) Intermediaries that have received recipient cannot be currently debarred recipients will only use the funds to one or more PRLF loans may apply for or suspended from Federal Government preserve low-income Multi-Family and be considered for subsequent PRLF programs. Housing projects. loans provided all the following are met: (d) There is a continuous need for the (c) No loans will be extended to an (i) For prior PRLF loans at least 80 property in the community as affordable intermediary unless: percent of each of an intermediary’s housing.

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Other Administrative Requirements Transaction Report. These reports will funded under this NOFA. Loans to (1) The following policies and provide information on the intermediaries under this program will regulations apply to loans to intermediary’s lending activity, income be considered a categorical exclusion intermediaries made in response to this and expenses, financial condition and a under the National Environmental NOFA: summary of names and characteristics Policy Act, requiring the completion of (a) PRLF intermediaries will be of the ultimate recipients the Form RD 1940–22, ’’Environmental ’’ required to provide Rural Development intermediary has financed. Checklist for Categorical Exclusions, by (iii) Annual proposed budget for the with the following reports: Rural Development. following year; and other reports as (h) An ‘‘Intergovernmental Review,’’ (i) An annual audit; Rural Development may require from will be conducted in accordance with (A) The dates of the audit report time to time regarding the conditions of the procedures contained in 7 CFR part period need not coincide with other the loan. 3015, Subpart V, if the applicant is a reports on the PRLF. Audit reports shall (b) Security will consist of a pledge by cooperative. be due 90 days following the audit the intermediary of all assets now or (2) The intermediary agrees to the period. The audit period will be set by hereafter placed in the PRLF, including following: the intermediary. The intermediary will cash and investments, notes receivable (a) To obtain written Rural notify Rural Development of the date. from ultimate recipients, and the Development approval, before the first Audits must cover all of the intermediary’s security interest in lending of PRLF funds to an ultimate intermediary’s activities. Audits will be collateral pledged by ultimate recipient, of: performed by an independent certified recipients. Except for good cause (i) All forms to be used for relending public accountant. An acceptable audit shown, Rural Development will not purposes, including application forms, will be performed in accordance with obtain assignments of specific assets at loan agreements, promissory notes, and GAGAS and include such tests of the the time a loan is made to an security instruments; and accounting records as the auditor intermediary or ultimate recipient. The (ii) The intermediary’s policy with considers necessary in order to express intermediary will covenant in the loan regard to the amount and form of an unqualified audited opinion on the agreement that, in the event the security to be required. financial condition of the intermediary. intermediary’s financial condition (b) To obtain written approval from (B) It is not intended that audits deteriorates or the intermediary takes Rural Development before making any required by this program be separate action detrimental to prudent fund significant changes in forms, security from audits performed in accordance operation or fails to take action required policy, or the intermediary’s workout with State and local laws or for other of a prudent lender, the intermediary plan. Rural Development may approve purposes. To the extent feasible, the will provide additional security, execute changes in forms, security policy, or audit work for this program should be any additional documents, and workout plans at any time upon a done in connection with these other undertake any reasonable acts Rural written request from the intermediary audits. Intermediaries covered by Office Development may request to protect and determination by Rural Management and Budget (OMB) Rural Development’s interest or to Development that the change will not Circular A–133 should submit audits perfect a security interest in any asset, jeopardize repayment of the loan or made in accordance with that circular. including physical delivery of assets violate any requirement of this NOFA or (ii) Quarterly or semiannual and specific assignments to Rural other Rural Development regulations. performance reports (due to Rural Development. All debt instruments and The intermediary must comply with the Development 30 days after the end of collateral documents used by an workout plan approved by Rural the fiscal quarter or half); intermediary in connection with loans Development so long as any portion of (A) Performance reports will be to ultimate recipients may be assignable. the intermediary’s PRLF loan is required quarterly during the first year (c) RHS may consider, on a case by outstanding; after loan closing. Thereafter, case basis, subordinating its security (c) To allow Rural Development to performance reports will be required interest on the ultimate recipient’s take a security interest in the PRLF, the semiannually. Also, Rural Development property to the lien of the intermediary intermediary’s portfolio of investments may resume requiring quarterly reports so that Rural Development has a junior derived from the proceeds of the loan if the intermediary becomes delinquent lien interest when an independent award, and other rights and interests as in repayment of its loan or otherwise appraisal verifies the Rural Rural Development may require; fails to fully comply with the provisions Development subordinated lien will (d) To return, as an extra payment on of its workout plan or Loan Agreement, continue to be fully secured. the loan any funds that have not been or Rural Development determines that (d) The term of the loan to an ultimate used in accordance with the the intermediary’s PRLF is not recipient may not exceed the less of 30 intermediary’s workout plan by a date adequately protected by the current years or the remaining term of the Rural two years from the date of the loan financial status and paying capacity of Development loan. agreement. The intermediary the ultimate recipients. (e) When loans are made to ultimate acknowledges that Rural Development (B) These performance reports shall recipients, restrictive-use provisions may cancel the approval of any funds contain information only on the PRLF, must be incorporated, as outlined in 7 not yet delivered to the intermediary if or if other funds are included, the PRLF CFR Section 3560.662. funds have not been used in accordance portion shall be segregated from the (f) The policies and regulations with the intermediary’s workout plan others; and in the case where the contained in 7 CFR part 1901, Subpart within the two-year period. Rural intermediary has more than one PRLF F regarding historical and Development, at its sole discretion, may from Rural Development, a separate archaeological properties apply to all allow the intermediary additional time report shall be made for each PRLF. loans funded under this NOFA. to use the loan funds by delaying (C) The performance reports will (g) The policies and regulations cancellation of the funds by not more include OMB Standard Form 269, contained in 7 CFR part 1940, Subpart than three additional years. If any loan Financial Status Report and OMB G regarding environmental assessments funds have not been used by five years Standard Form 272, Federal Cash apply to all loans to ultimate recipients from the date of the loan agreement, the

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approval will be canceled for any funds (G) Environmental impacts of this met or notify the intermediary in that have not been delivered to the action. This will include an original writing the reasons for denial when intermediary and the intermediary will Form RD 1940–20, ‘‘Request for Rural Development determines it is return, as an extra payment on the loan, Environmental Information,’’ completed unable to concur with the loan. any funds it has received and not used and signed by the intermediary. IV. Application and Submission in accordance with the workout plan. In Attached to this form will be a Information accordance with the Rural Development statement stipulating the age of the approved promissory note, regular loan building to be rehabilitated and a Submission Address payments will be based on the amount completed and signed Federal Applications should be submitted to of funds actually drawn by the Emergency Management Agency USDA Rural Housing Service; Attention: intermediary. (FEMA) Form 81–93, ‘‘Standard Flood Timothy James, Financial and Loan (e) The intermediary will be required Hazard Determination.’’ If the age of the Analyst, Multi-Family Housing STOP to enter into a Rural Development building is over 50 years or if the 0781 (Room 1263–S), U.S. Department approved loan agreement and building is either on or eligible for of Agriculture, Rural Housing Service, promissory note. The intermediary will inclusion in the National Register of 1400 Independence Avenue, SW., receive a 30-year loan at a one percent Historic Places, then the intermediary Washington, DC 20250–0781 or Michael interest rate. The loan will be deferred will immediately contact Rural Steininger, Director Guaranteed Loan for up to three years if requested in the Development to begin Section 106 of the Division, Multi-Family Housing STOP intermediary’s work plan. National Historic Preservation Act of 0781 (Room 1263–S) or by telephone at (f) Loans made to the PRLF ultimate 1966 consultation with the State (202) 720–1094 or (202) 720–1610, TDD recipient must meet the intent of Historic Preservation Officer. If the (302) 857–3585 or via e-mail or providing decent, safe, and sanitary building is located within a 100-year [email protected], rural housing by preserving and flood plain, then the intermediary will [email protected] regulating existing properties financed immediately contact Rural Development (Please note the phone numbers are not with 514, 515, and 516 funds. They to analyze any effects as outlined in 7 toll free numbers.) must also be consistent with the CFR part 1940, subpart G, exhibit C. The The application process is in two requirements of Title V of the Housing intermediary will assist Rural steps: First, all applicants will submit Act of 1949, as amended. Development in any additional proposals to the National Office for loan (g) When an intermediary proposes to requirements necessary to complete the committee review. The initial loan make a loan from the PRLF to an environmental review. committee will determine if the ultimate recipient, Rural Development (ii) Such other information as Rural borrower is eligible, score the concurrence is required prior to final Development may request on specific application, and rank the applicants approval of the loan. The intermediary cases. according to the criteria established in must submit a request for Rural (h) Upon receipt of a request for this NOFA. Only eligible borrowers will Development concurrence of a proposed concurrence in a loan to an ultimate be scored. The loan committee will loan to an ultimate recipient. Such recipient, Rural Development will: select proposals for further processing. request must include: (i) Review the material submitted by In the event that a proposal is selected (i) Certification by the intermediary the intermediary for consistency with for further processing and the applicant that: Rural Development’s preservation and declines, the next highest ranked (A) The proposed ultimate recipient is revitalization principles which include unfunded applicant may be selected. eligible for the loan; the following; (B) The proposed loan is for eligible (A) There is a continuing need for the Second, after the loan is obligated to purposes; property in the community as affordable the intermediary but prior to the loan (C) The proposed loan complies with housing. If Rural Development closing, the State Office in the all applicable statutes and regulations; determines there is no continuing need applicant’s residence or State where the and for the property, the ultimate recipient applicant will be doing its intermediary (D) Prior to closing the loan to the is ineligible for the loan; work will provide written approval of ultimate recipient, the intermediary and (B) When the transaction is complete, all forms to be used for relending its principal officers (including the property will be owned and purposes, including application forms, immediate family) hold no legal or controlled by eligible Section 514, 515, loan agreements, promissory notes, and financial interest in the ultimate or T516 borrowers; security instruments. Additionally, the recipient, and the ultimate recipient and (C) The transaction will address the State Office will provide written its principal officers (including physical needs of the property; approval of the applicant’s binding immediate family) hold no legal or (D) Existing tenants will not be policy with regard to the amount and financial interest in the intermediary. displaced because of increased post form of security to be required. (ii) Copies of sufficient material from transaction rents; Once the loan closes, the applicant the ultimate recipient’s application and (E) Post transaction basic rents will will be required to comply with the the intermediary’s related files, to allow not exceed comparable market rents; terms of its work plan which describes Rural Development to determine the: and how the money will be used, the loan (A) Name and address of the ultimate (F) Any equity loan amount will be agreement, the promissory note and any recipient; supported by a market value appraisal. other loan closing documents. At the (B) Loan purposes; (i) The Intermediary shall pledge as time of loan closing, Rural Development (C) Interest rate and term; collateral for non-Rural Development and loan recipient shall enter into a loan (D) Location, nature, and scope of the funds its PRLF Revolving Fund, agreement and a promissory note project being financed; including its portfolio of investments acceptable to Rural Development. Loans (E) Other funding included in the derived from the proceeds of other obligated to State offices to project; funds and this loan award. intermediaries must close on or before (F) Nature and lien priority of the (ii) Issue a letter concurring with the the second anniversary of the dated pre- collateral; and loan when all requirements have been approval letter mentioned above.

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Applicants who have not closed by this Agency funding of its loan request, or and the arrangements between such date must de-obligate PRLF funds to include well developed targeting criteria organizations and the intermediary. allow further program use of funds. for ultimate recipients consistent with (4) A pro forma balance sheet at start- the intermediary’s mission and strategy up and projected balance sheets for at Application Requirements for this demonstration program, along least three additional years; and The application must contain the with supporting statistical or narrative projected cash flow and earnings following: evidence that such prospective statements for at least three years (1) A summary page, that is double- recipients exist in sufficient numbers to supported by a list of assumptions spaced and not in narrative form, that justify Rural Development funding of showing the basis for the projections. lists the following items: the loan request; The projected earnings statement and (a) Applicant’s name. (d) Include a list of proposed fees and balance sheet must include one set of (b) Applicant’s Taxpayer other charges it will assess to the projections that shows the PRLF must Identification Number. ultimate recipients; extend to include a year with a full (c) Applicant’s address. (e) Provide documentation to Rural annual installment on the PRLF loan. (d) Applicant’s telephone number. (5) A written agreement of the (e) Name of applicant’s contact Development the intermediary has secured commitments of significant intermediary to Rural Development person, telephone number, and address. agreeing to the audit requirements. (f) Amount of loan requested. financial support from public agencies and private organizations or have (6) Form RD 400–4, ‘‘Assurance (2) Form RD 4274–1, Application for Agreement.’’ A copy of which can be Loan (Intermediary Relending received tax credits for the calendar year prior to this NOFA; obtained at: http:// Program).’’ This form can be found at: www.rurdev.usda.gov/regs/forms/0400- http://forms.sc.egov.usda.gov/ (f) Include the intermediary’s plan (specific loan purposes) for relending 04.pdf. efcommon/eFileServices/eForms/ (7) Complete organizational RD4274-1.PDF. the loan funds. The plan must be of sufficient detail to provide Rural documents, including evidence of (3) A written workout plan and other authority to conduct the proposed evidence Rural Development require Development with a complete understanding of what the intermediary activities. that demonstrates the feasibility of the (8) Most recent unqualified audit will accomplish by lending the funds to intermediary’s program to meet the report signed by a CPA and prepared in the ultimate recipient and the complete objectives of this demonstration accordance with GAGAS. mechanics of how the funds will flow program. The plan must, at a minimum: (9) Form RD 1910–11, Applicant from the intermediary to the ultimate (a) Document the intermediary’s Certification Federal Collection Policies recipient. The service area, eligibility ability to administer this demonstration for Consumer or Commercial Debts.’’ A criteria, loan purposes, fees, rates, program in accordance with the copy of which can be obtained at: terms, collateral requirements, limits, provisions of this NOFA. In order to http://www.rurdev.usda.gov/regs/forms/ priorities, application process, method adequately demonstrate the ability to 1910-11.pdf. administer the program, the of disposition of the funds to the (10) Form AD–1047, ‘‘Certification intermediary must provide a complete ultimate recipient, monitoring of the Regarding Debarment, Suspension, and listing of all personnel responsible for ultimate recipient’s accomplishments, other Responsibility Matters—Primary administering this program along with a and reporting requirements by the Covered Transactions.’’ A copy of which statement of their qualifications and ultimate recipient’s management must can be obtained at: http:// experience. The personnel may be either at least be addressed by the www.ocio.usda.gov/forms/doc/AD1047- members or employees of the intermediary’s relending plan; F-01-92.PDF. intermediary’s organization or contract (g) Provide a set of goals, strategies, (11) Exhibit A–1 of RD Instruction personnel hired for this purpose. If the and anticipated outcomes for the 1940–Q, ‘‘Certification for Contracts, personnel are to be contracted for, the intermediary’s program. Outcomes Grants, and Loans.’’ A copy of which contract between the intermediary and should be expressed in quantitative or can be obtained at: http:// the entity providing such service will be observable terms such as low-income www.rurdev.usda.gov/me/CBP/const/ submitted for Rural Development housing complexes rehabilitated or low- 1940qa1.pdf. review, and the terms of the contract income housing units preserved, and (12) Copies of the applicant’s tax and its duration must be sufficient to should relate to the purpose of this returns for each of the three years prior adequately service Rural Development demonstration program; and to the year of application, and most loan through to its ultimate conclusion. (h) Providing technical assistance to recent audited financial statements. If Rural Development determines the ultimate recipients is not required as (13) A separate one-page information personnel lack the necessary expertise part of this program. However if the sheet listing each of the ‘‘Selection to administer the program, the loan intermediary provides technical Criteria’’ contained in this NOFA, request will be denied; assistance, the intermediary will followed by the page numbers of all (b) Document the intermediary’s provide specific information as to how relevant material and documentation ability to commit financial resources and what type of technical assistance that is contained in the proposal that under the control of the intermediary to the intermediary will provide to the supports these criteria. Applicants are the establishment of the demonstration ultimate recipients and potential also encouraged, but not required; to program. This should include a ultimate recipients. For instance include a checklist of all of the statement of the sources of non-Rural describe the qualifications of the application requirements and to have Development funds for administration technical assistance providers, the their application indexed and tabbed to of the intermediary’s operations and nature of technical assistance that will facilitate the review process. financial assistance for projects; be available, and expected and (14) Financial statements (c) Demonstrate a need for loan funds. committed sources of funding for (consolidated or unconsolidated) for the As a minimum, the intermediary should technical assistance. If other than the year prior to this NOFA. identify a sufficient number of proposed intermediary itself, describe the (15) A borrower authorization and known ultimate recipients to justify organizations providing such assistance statement allowing Rural Development

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the authorization to verify past and (iii) 50 percent or more of total (5) Administrative. The Administrator present earnings with the preparer of development costs—15 points. may assign up to 25 additional points to the intermediary’s financial statements. (2) Intermediary contribution. The an application to account for the Intermediary will contribute its own following items not adequately covered V. Application Review Information funds not derived from Rural by the other priority criteria set out in All applications will be evaluated by Development. The Non-Rural this section. The items that will be a loan committee. The loan committee Development contributed funds will be considered are the amount of funds will make recommendations to the placed in a separate account from the requested in relation to the amount of Rural Housing Service Administrator PRLF loan account. The intermediary need; a particularly successful concerning preliminary eligibility shall contribute funds not derived from affordable housing development record; determinations and for the selection of Rural Development into a separate bank a service area with no other PRLF applications for further processing account or accounts according to their coverage; a service area with severe based on the selection criteria contained ‘‘workout plan’’. These funds are to be affordable housing problems; a service in this NOFA and the availability of placed into an interest bearing counter- area with emergency conditions caused funds. The Administrator will inform signature-account for three years as set by a natural disaster; an innovative applicants of the status of their forth in the loan agreement. The proposal; the quality of the proposed application within 30 days of the loan counter-signature-account will require a program; economic development plan application closing date set forth in this signature from a Rural Development from the local community, particularly NOFA. employee and intermediary. After three a plan prepared as part of a request for Selection Criteria years, these funds shall be commingled an Empowerment Zone/Enterprise with the PRLF to provide loans to the Community designation; or excellent Selection criteria points will be ultimate recipient for the preservation utilization of an existing revolving loan allowed only for factors evidenced by and revitalization of Section 515 Multi- fund program. The Administrator will well documented, reasonable plans Family Housing. document the reasons for the particular which provide assurance that the items The amount of non-Agency derived point allocation. have a high probability of being funds contributed to the PRLF will VI. Appeal Process accomplished. The points awarded will equal the following percentage of Rural be as specified in paragraphs (1) through Development PRLF loan: All adverse determinations regarding (4) of this section. In each case, the (a) At least 5 percent but less than 15 applicant eligibility and the awarding of intermediary’s application must provide percent—15 points; points as part of the selection process documentation that the selection criteria (b) At least 15 percent but less than are appealable. Instructions on the have been met in order to qualify for 25 percent—30 points; or appeal process will be provided at the selection criteria points. If an (c) 25 percent or more—50 points. time an applicant is notified of the application does not cover one of the (3) Experience. The intermediary has adverse action. categories listed, it will not receive actual experience in the administration Equal Opportunity and points for that criteria. of revolving loan funds and the (1) Other funds. Points allowed under Nondiscrimination Requirements preservation of Multi-Family Housing, this paragraph are to be based on with a successful record, for the (1) In accordance with the Fair documented successful history or following number of full years. Housing Act, Title VI of the Civil Rights written evidence that the funds are Applicants must have actual experience Act of 1964, the Equal Credit available. in both the administration of revolving Opportunity Act, the Age (a) The intermediary will obtain non- loan funds and the preservation of Discrimination Act of 1975, Executive Rural Development loan or grant funds Multi-Family Housing in order to Order 12898, the Americans with or provide housing tax credits qualify for points under the selection Disabilities Act, and Section 504 of the (measured in dollars) to pay part of the criteria. If the number of years of Rehabilitation Act of 1973, neither the cost of the ultimate recipients’ project experience differs between the two intermediary nor Rural Development cost. Points for the amount of funds types of above listed experience, the will discriminate against any employee, from other sources are as follows: (i) At least 10 percent but less than 25 type of experience with the lesser proposed intermediary or proposed percent of the total development cost (as number of years will be used for the ultimate recipient on the basis of sex, defined in 7 CFR part 3560 Section selection criteria. marital status, race, familial status, 3560.11)—5 points; (a) At least one but less than three color, religion, national origin, age, (ii) At least 25 percent but less than years—5 points; physical or mental disability (provided 50 percent of the total development (b) At least three but less than five the proposed intermediary or proposed cost—10 points; or years—10 points; ultimate recipient has the capacity to (iii) 50 percent or more of the total (c) At least five but less than 10 contract), because all or part of the project cost—15 points. years—20 points; or proposed intermediary’s or proposed (b) The intermediary will provide (d) 10 or more years—30 points. ultimate recipient’s income is derived loans to the ultimate recipient from its (4) The DER is the financial ratio used from public assistance of any kind, or own funds (not loan or grant) to pay part to determine how much debt an because the proposed intermediary or of the ultimate recipients’ project cost. applicant has relative to its equity. DER proposed ultimate recipient has in good The amount of the intermediary’s own is calculated from the balance sheet by faith exercised any right under the funds will average: adding the short term or current debt Consumer Credit Protection Act, with (i) At least 10 percent but less than 25 plus the long term debt, and then respect to any aspect of a credit percent of the total development costs— dividing that number by the transaction anytime Rural Development 5 points; intermediary’s equity. In order to loan funds are involved. (ii) At least 25 percent but less than receive points the intermediary must (2) The policies and regulations 50 percent of total development costs— submit a summary of how the DER was contained in 7 CFR part 1901, Subpart 10 points; or calculated. E apply to this program.

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(3) The Rural Housing Service (RHS) Ketchikan, Alaska. Send written services of a sign language interpreter Administrator will assure that equal comments to Ketchikan Resource should contact the Regional Office at opportunity and nondiscrimination Advisory Committee, c/o District least ten (10) working days before the requirements are met in accordance Ranger, USDA Forest Service, 3031 scheduled date of the meeting. with the Fair Housing Act, Title VI of Tongass Ave., Ketchikan, AK 99901, or Records generated from this meeting the Civil Rights Act of 1964, the Equal electronically to Diane Daniels, RAC may be inspected and reproduced at the Credit Opportunity Act, the Age Coordinator at [email protected]. Central Regional Office, as they become Discrimination Act of 1975, Executive FOR FURTHER INFORMATION CONTACT: available, both before and after the Order 12898, the Americans with Diane Daniels, RAC Coordinator meeting. Persons interested in the work Disabilities Act, and Section 504 of the Ketchikan-Misty Fjords Ranger District, of this advisory committee are advised Rehabilitation Act of 1973. Tongass National Forest, (907) 228– to go to the Commission’s Web site, (4) All housing must meet the 4105. http://www.usccr.gov, or to contact the accessibility requirements found at 7 Central Regional Office at the above e- SUPPLEMENTARY INFORMATION: The CFR Section 3560.60(d). mail or street address. meeting is open to the public. (5) To file a complaint of The meeting will be conducted Committee discussion is limited to discrimination, write to USDA, Director, pursuant to the provisions of the rules Forest Service staff and Committee Office of Civil Rights, 1400 and regulations of the Commission and members. However, public input Independence Avenue, SW., FACA. opportunity will be provided and Washington, DC 20250–9410, or call Dated in Washington, DC, on November 4, (800) 795–3272 (voice) or (202) 720– individuals will have the opportunity to address the Committee at that time. 2010. 6382 (TDD). USDA is an equal Peter Minarik, Dated: November 1, 2010. opportunity provider, employer, and Acting Chief, Regional Programs lender. The U.S. Department of Jeff DeFreest, Coordination Unit. Agriculture prohibits discrimination in District Ranger. [FR Doc. 2010–28218 Filed 11–8–10; 8:45 am] all its programs and activities on the [FR Doc. 2010–28222 Filed 11–8–10; 8:45 am] BILLING CODE 6335–01–P basis of race, color, national origin, age, BILLING CODE 3410–11–M disability, and where applicable, sex, marital status, familial status, parental COMMISSION ON CIVIL RIGHTS status, religion, sexual orientation, COMMISSION ON CIVIL RIGHTS genetic information, political beliefs, Agenda and Notice of Public Meeting reprisal, or because all or part of an Agenda and Notice of Public Meeting of the Alabama Advisory Committee individual’s income is derived from any of the Louisiana Advisory Committee public assistance program. (Not all Notice is hereby given, pursuant to prohibited bases apply to all programs.) Notice is hereby given, pursuant to the provisions of the rules and Persons with disabilities who require the provisions of the rules and regulations of the U.S. Commission on alternative means for communication of regulations of the U.S. Commission on Civil Rights (Commission), and the program information (Braille, large Civil Rights (Commission), and the Federal Advisory Committee Act print, audiotape, etc.) should contact Federal Advisory Committee Act (FACA), that a State Advisory USDA’s TARGET Center at (202) 720– (FACA), that a State Advisory Committee (SAC) planning meeting of 2600 (voice and TDD). Committee (SAC) meeting of the the Alabama Advisory Committee to the Louisiana Advisory Committee to the Commission will convene by conference Dated: November 1, 2010. Commission will convene on Tuesday, call at 11 a.m. and adjourn at Tammye H. Trevin˜ o, November 30, 2010 at 2 p.m. and approximately 12 p.m. on Tuesday, Administrator, Rural Housing Service. adjourn at approximately 5 p.m. (CST) November 23, 2010. The purpose of this [FR Doc. 2010–28253 Filed 11–8–10; 8:45 am] at Louisiana State University Honors meeting is to continue planning a civil BILLING CODE 3410–XV–P College, French House, Grand Salon, rights project. Highland Road & South Campus Drive, This meeting is available to the public Louisiana State University, Baton through the following toll-free call-in DEPARTMENT OF AGRICULTURE Rouge, LA. The purpose of the meeting number: (866) 364–7584, conference call is to begin planning a future civil rights access code number 21921588. Any Forest Service project. interested member of the public may Ketchikan Resource Advisory Members of the public are entitled to call this number and listen to the Committee submit written comments. The meeting. Callers can expect to incur comments must be received in the charges for calls they initiate over AGENCY: Forest Service, USDA. regional office by December 15, 2010. wireless lines, and the Commission will ACTION: Notice of meeting. The address is U.S. Commission on not refund any incurred charges. Callers Civil Rights, 400 State Avenue, Suite will incur no charge for calls they SUMMARY: The Ketchikan Resource 908, Kansas City, Kansas 66101. Persons initiate over land-line connections to Advisory Committee will meet in wishing to e-mail their comments, or to the toll-free telephone number. Persons Ketchikan, Alaska, December 7, 2010. present their comments verbally at the with hearing impairments may also The purpose of this meeting is to meeting, or who desire additional follow the proceedings by first calling discuss potential projects under the information should contact Farella E. the Federal Relay Service at 1–800–977– Secure Rural Schools and Community Robinson, Regional Director, Central 8339 and providing the Service with the Self-Determination Act of 2008. Regional Office, at (913) 551–1400, (or conference call number and contact DATES: The meeting will be held for hearing impaired TDD 913–551– name Farella E. Robinson. December 7, 2010 at 6 p.m. 1414), or by e-mail to To ensure that the Commission ADDRESSES: The meeting will be held at [email protected]. secures an appropriate number of lines the Ketchikan—Misty Fjords Ranger Hearing-impaired persons who will for the public, persons are asked to District, 3031 Tongass Avenue, attend the meeting and require the register by contacting Corrine Sanders of

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the Central Regional Office and TTY/ follow the proceedings by first calling charges for calls they initiate over TDD telephone number, by 4 p.m. on the Federal Relay Service at 1–800–977– wireless lines, and the Commission will November 16, 2010. 8339 and providing the Service with the not refund any incurred charges. Callers Members of the public are entitled to conference call number and contact will incur no charge for calls they submit written comments. The name Farella E. Robinson. initiate over land-line connections to comments must be received in the To ensure that the Commission the toll-free telephone number. Persons regional office by December 8, 2010. secures an appropriate number of lines with hearing impairments may also The address is U.S. Commission on for the public, persons are asked to follow the proceedings by first calling Civil Rights, 400 State Avenue, Suite register by contacting Corrine Sanders of the Federal Relay Service at 1–800–977– 908, Kansas City, Kansas 66101. the Central Regional Office and TTY/ 8339 and providing the Service with the Comments may be e-mailed to TDD telephone number, by 4 p.m. on conference call number and contact [email protected]. Records generated December 9, 2010. name Farella E. Robinson. by this meeting may be inspected and Members of the public are entitled to To ensure that the Commission reproduced at the Central Regional submit written comments. The secures an appropriate number of lines Office, as they become available, both comments must be received in the for the public, persons are asked to before and after the meeting. Persons regional office by December 30, 2010. register by contacting Corrine Sanders of interested in the work of this advisory The address is U.S. Commission on the Central Regional Office and TTY/ committee are advised to go to the Civil Rights, 400 State Avenue, Suite TDD telephone number, by 4 p.m. on Commission’s Web site, http:// 908, Kansas City, Kansas 66101. December 6, 2010. www.usccr.gov, or to contact the Central Comments may be e-mailed to Members of the public are entitled to Regional Office at the above e-mail or [email protected]. Records generated submit written comments. The street address. by this meeting may be inspected and comments must be received in the The meeting will be conducted reproduced at the Central Regional regional office by December 30, 2010. pursuant to the provisions of the rules Office, as they become available, both The address is U.S. Commission on and regulations of the Commission and before and after the meeting. Persons Civil Rights, 400 State Avenue, Suite FACA. interested in the work of this advisory 908, Kansas City, Kansas 66101. Dated in Washington, DC on November 4, committee are advised to go to the Comments may be e-mailed to 2010. Commission’s Web site, http:// [email protected]. Records generated Peter Minarik, www.usccr.gov, or to contact the Central by this meeting may be inspected and Acting Chief, Regional Programs Regional Office at the above e-mail or reproduced at the Central Regional Coordination Unit. street address. Office, as they become available, both [FR Doc. 2010–28219 Filed 11–8–10; 8:45 am] The meeting will be conducted before and after the meeting. Persons pursuant to the provisions of the rules BILLING CODE 6335–01–P interested in the work of this advisory and regulations of the Commission and committee are advised to go to the FACA. Commission’s Web site, http:// COMMISSION ON CIVIL RIGHTS Dated in Washington, DC, on November 4, www.usccr.gov, or to contact the 2010. Central Regional Office at the above e- Agenda and Notice of Public Meeting Peter Minarik, mail or street address. of the Kansas Advisory Committee Acting Chief, Regional Programs The meeting will be conducted pursuant to the provisions of the rules Notice is hereby given, pursuant to Coordination Unit. and regulations of the Commission and the provisions of the rules and [FR Doc. 2010–28221 Filed 11–8–10; 8:45 am] FACA. regulations of the U.S. Commission on BILLING CODE 6335–01–P Civil Rights (Commission), and the Dated in Washington, DC, on November 4, Federal Advisory Committee Act 2010. (FACA), that a State Advisory COMMISSION ON CIVIL RIGHTS Peter Minarik, Committee (SAC) orientation and Acting Chief, Regional Programs Agenda and Notice of Public Meeting Coordination Unit. planning meeting of the Kansas of the Oklahoma Advisory Committee Advisory Committee to the Commission [FR Doc. 2010–28220 Filed 11–8–10; 8:45 am] will convene by conference call at 11 Notice is hereby given, pursuant to BILLING CODE 6335–01–P a.m. and adjourn at approximately 12 the provisions of the rules and p.m. (CST) on Thursday, December 16, regulations of the U.S. Commission on 2010. The purpose of this meeting is to Civil Rights (Commission), and the COMMISSION ON CIVIL RIGHTS provide SAC orientation and continue Federal Advisory Committee Act planning a civil rights project. (FACA), that a planning meeting of the Sunshine Act Notice This meeting is available to the public Oklahoma Advisory Committee to the AGENCY: United States Commission on through the following toll-free call-in Commission will convene by conference Civil Rights. number: (866) 364–7584, conference call call at 10 a.m. and adjourn at ACTION: Notice of meeting cancellation. access code number 21264785. Any approximately 11 a.m. on Monday, interested member of the public may December 13, 2010. The purpose of this SUMMARY: On October 12, 2010 (75 FR call this number and listen to the meeting is to continue planning a civil 63144–63145), the U.S. Commission on meeting. Callers can expect to incur rights project. Civil Rights announced a business charges for calls they initiate over This meeting is available to the public meeting to be held on Friday, November wireless lines, and the Commission will through the following toll-free call-in 5, 2010 at the Commission’s not refund any incurred charges. Callers number: (866) 364–7584, conference call headquarters. On Wednesday, will incur no charge for calls they access code number 20995485. Any November 3, 2010, the meeting was initiate over land-line connections to interested member of the public may cancelled. The decision to cancel the the toll-free telephone number. Persons call this number and listen to the meeting was too close in time to the with hearing impairments may also meeting. Callers can expect to incur date and time of the meeting for the

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publication of a cancellation notice to Marine Mammal Protection Act Background appear in advance of the scheduled (MMPA). In accordance with the meeting date. The details of the MMPA, NMFS is announcing the Section 3(1)(A) of the Marine cancelled meeting are: receipt of the petition and its Mammal Protection Act (MMPA) (16 DATE AND TIME: Friday, November 5, availability for public review and is U.S.C. 1362(1)(A)) defined the term, 2010; 8:30 a.m. EDT soliciting comments on the petition. ‘‘depletion’’ or ‘‘depleted’’, to include any case in which ‘‘ * * * the Secretary, PLACE: 624 Ninth Street, NW., Room DATES: Comments must be received by after consultation with the Marine 540, Washington, DC 20425. close of business on November 24, 2010. ADDRESSES: A copy of the petition may Mammal Commission and the Meeting Agenda be requested from Chief, Marine Committee of Scientific Advisors on This meeting is open to the public. Mammal and Sea Turtle Conservation Marine Mammals * * * determines that Division, Office of Protected Resources, a species or a population stock is below I. Approval of Agenda National Marine Fisheries Service, 1315 its optimum sustainable population.’’ II. Program Planning East-West Highway, Silver Spring, MD Section 3(9) of the MMPA (16 U.S.C. • Approval of Project Outline and 20910. 1362(9)) defines ‘‘optimum sustainable You may submit comments, identified Discovery Plan for FY 2011 Enforcement population [(OSP)] * * * with respect by 0648–XA018, by any one of the Report. to any population stock, [as] the number following methods: • Discussion of Possible Briefing • of animals which will result in the Electronic Submissions: Submit all maximum productivity of the Topics for FY 2011. electronic public comments via the • population or the species, keeping in Update on Status of Briefing on Federal eRulemaking Portal http:// mind the carrying capacity [(K)] of the Disparate Impact in School Discipline www.regulations.gov. Policies. • Fax: 301–713–0376, Attn: Chief, habitat and the health of the ecosystem of which they form a constituent III. Management & Operations Marine Mammal and Sea Turtle element.’’ NMFS’ regulations at 50 CFR • Conservation Division. Expiration of Commissioner Terms. • Mail: Chief, Marine Mammal and 216.3 clarify the definition of OSP as a IV. State Advisory Committee Issues Sea Turtle Conservation Division, Office population size that falls within a range • of Protected Resources, National Marine from the population level of a given Wisconsin SAC. Fisheries Service, 1315 East-West species or stock that is the largest V. Approval of Minutes of October 29 Highway, Silver Spring, MD 20910. supportable within the ecosystem (i.e., Meeting Instructions: No comments will be K) to its maximum net productivity posted for public viewing until after the VI. Adjourn level (MNPL). MNPL is the population comment period has closed. All abundance that results in the greatest CONTACT PERSON FOR FURTHER comments received are a part of the net annual increment in population INFORMATION: Lenore Ostrowsky, Acting public record and will generally be numbers resulting from additions to the Chief, Public Affairs Unit (202) 376– posted to http://www.regulations.gov population from reproduction, less without change. All Personal Identifying 8591. TDD: (202) 376–8116. losses due to natural mortality. Persons with a disability requiring Information (for example, name, The MMPA provides for interested special services, such as an interpreter address, etc.) voluntarily submitted by for the hearing impaired, should contact the commenter may be publicly parties to submit a petition to designate Pamela Dunston at least seven days accessible. Do not submit Confidential a population stock of marine mammals prior to the meeting at 202–376–8105. Business Information or otherwise as depleted. Section 115(a)(3) of the TDD: (202) 376–8116. sensitive or protected information. MMPA (16 U.S.C. 1383b(a)(3)) requires NMFS will accept anonymous NMFS to publish a notice in the Federal Dated: November 5, 2010. comments (enter N/A in the required Register that such a petition has been David Blackwood, fields, if you wish to remain received and is available for public General Counsel. anonymous). You may submit review. Within 60 days of receiving a [FR Doc. 2010–28354 Filed 11–5–10; 11:15 am] attachments to electronic comments in petition, NMFS must publish a finding BILLING CODE 6335–01–P Microsoft Word, Excel, WordPerfect, or in the Federal Register as to whether Adobe PDF file formats only. the petition presents substantial FOR FURTHER INFORMATION CONTACT: Dr. information indicating that the DEPARTMENT OF COMMERCE Shannon Bettridge or Dr. Gregory Silber, petitioned action may be warranted. Office of Protected Resources, Silver National Oceanic and Atmospheric Spring, MD (301) 713–2322. If NMFS makes a positive 60-day Administration SUPPLEMENTARY INFORMATION: finding, NMFS must promptly initiate a review of the status of the affected RIN 0648–XA018 Electronic Access population stock of marine mammals. Eastern North Pacific Gray Whale; Interested persons may obtain the No later than 210 days after receipt of Notice of Petition Availability petition for review on the Internet at the the petition, NMFS must publish a following address: http:// proposed rule as to the status of the AGENCY: National Marine Fisheries www.nmfs.noaa.gov/pr/ or by species or stock, along with the reasons Service (NMFS). contacting Dr. Shannon Bettridge or Dr. underlying the proposed status ACTION: Notification of availability; Gregory Silber [see FOR FURTHER determination. Following a 60-day request for comments. INFORMATION CONTACT]. minimum comment period on the The 2008 stock assessment report for proposed rule, NMFS must publish a SUMMARY: NMFS has received a petition Eastern North Pacific gray whales is final rule within 90 days of the close of to designate the Eastern North Pacific available on the Internet at the following the comment period on the proposed population of gray whales (Eschrichtius address: http://www.nmfs.noaa.gov/pr/ robustus) as a depleted stock under the pdfs/sars/ak2008whgr-en.pdf. rule.

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Petition on Eastern North Pacific Gray England Fishery Management Council; SUMMARY: Notice is hereby given that Whales telephone: (978) 465–0492. the Northwest Fisheries Science Center On October 21, 2010, NMFS received SUPPLEMENTARY INFORMATION: The items (NWFSC, Dr. M. Bradley Hanson, a petition from the California Gray of discussion in the committee’s agenda Principal Investigator), 2725 Montlake Whale Coalition to designate the Eastern are as follows: Blvd. East, Seattle, Washington 98112– North Pacific population of gray whales 1. Continue development of 2097, has applied for an amendment to as depleted under the MMPA. The alternatives for consideration in Scientific Research Permit No. 781– petition alleges that the causes of the Amendment 5 to the Atlantic Herring 1824–01. decline include the following: Fishery Management Plan (FMP), with DATES: Written, telefaxed, or e-mail (1) Over-harvesting; particular focus on catch monitoring comments must be received on or before (2) Collapse of cow/calf numbers; alternatives; December 9, 2010. 2. Discuss and develop elements of (3) Predation by transient orcas; ADDRESSES: The application and related proposed portside sampling program (4) Major changes in primary prey and documents are available for review by (data priorities, sampling design, habitat as a result of climate change; and selecting ‘‘Records Open for Public potential coverage levels, (5) Reduction in available prey Comment’’ from the Features box on the administration) and measures to species resulting in starvation. Applications and Permits for Protected confirm self-reported catch; develop In accordance with the MMPA, NMFS Species home page, https:// Committee recommendations; apps.nmfs.noaa.gov, and then selecting announces the receipt of this petition, 3. Discuss and further develop File No. 781–1824 from the list of and its availability for public review options for funding; (see ADDRESSES and Electronic Access). 4. Address other outstanding issues available applications. These documents are also available NMFS also solicits comments and related to Amendment 5 as time upon written request or by appointment information related to the statements in permits. the petition and additional background Although non-emergency issues not in the following office(s): Permits, Conservation and Education on the status of the Eastern North contained in this agenda may come Division, Office of Protected Resources, Pacific population of gray whales. before this group for discussion, those NMFS, 1315 East-West Highway, Room issues may not be the subject of formal Dated: November 4, 2010. 13705, Silver Spring, MD 20910; phone action during this meeting. Action will Thomas C. Eagle, (301) 713–2289; fax (301) 713–0376; and be restricted to those issues specifically Acting Chief, Marine Mammal and Sea Turtle Northwest Region, NMFS, 7600 Sand identified in this notice and any issues Conservation Division, Office of Protected Point Way NE, BIN C15700, Bldg. 1, arising after publication of this notice Resources, National Marine Fisheries Service. Seattle, WA 98115–0700; phone (206) that require emergency action under [FR Doc. 2010–28282 Filed 11–8–10; 8:45 am] 526–6150; fax (206) 526–6426. BILLING CODE 3510–22–P section 305(c) of the Magnuson-Stevens Written comments on this application Fishery Conservation and Management should be submitted to the Chief, Act, provided the public has been Permits, Conservation and Education DEPARTMENT OF COMMERCE notified of the Council’s intent to take Division, at the address listed above. final action to address the emergency. Comments may also be submitted by National Oceanic and Atmospheric facsimile to (301) 713–0376, or by e- Administration Special Accommodations This meeting is physically accessible mail to [email protected]. RIN 0648–XA022 to people with disabilities. Requests for Please include File No. 781–1824 in the sign language interpretation or other subject line of the e-mail comment. Those individuals requesting a public New England Fishery Management auxiliary aids should be directed to Paul Council; Public Meeting hearing should submit a written request J. Howard (see ADDRESSES) at least 5 to the Chief, Permits, Conservation and days prior to the meeting date. AGENCY: National Marine Fisheries Education Division at the address listed Service (NMFS), National Oceanic and Authority: 16 U.S.C. 1801 et seq. above. The request should set forth the Atmospheric Administration (NOAA), Dated: November 4, 2010. specific reasons why a hearing on this Commerce. Tracey L. Thompson, application would be appropriate. ACTION: Notice of a public meeting. Acting Director, Office of Sustainable FOR FURTHER INFORMATION CONTACT: Fisheries, National Marine Fisheries Service. Amy Sloan or Laura Morse, (301) 713– SUMMARY: The New England Fishery [FR Doc. 2010–28216 Filed 11–8–10; 8:45 am] 2289. Management Council’s (Council) Herring Committee will meet to BILLING CODE 3510–22–P SUPPLEMENTARY INFORMATION: The consider actions affecting New England subject amendment to Permit No. 781– 1824–01 is requested under the fisheries in the exclusive economic zone DEPARTMENT OF COMMERCE (EEZ). authority of the Marine Mammal Protection Act of 1972, as amended (16 DATES: The meeting will be held on National Oceanic and Atmospheric U.S.C. 1361 et seq.), the regulations November 30, 2010 at 9:30 a.m. Administration governing the taking and importing of ADDRESSES: The meeting will be held at RIN 0648–XZ66 marine mammals (50 CFR part 216), the the Sheraton Harborside Hotel, 250 Endangered Species Act of 1973, as Market Street, Portsmouth, NH 03801; Marine Mammals; File No. 781–1824 amended (16 U.S.C. 1531 et seq.), and telephone: (603) 431–2300; fax: (603) AGENCY: the regulations governing the taking, 433–5649. National Marine Fisheries Service (NMFS), National Oceanic and importing, and exporting of endangered Council address: New England and threatened species (50 CFR 222– Fishery Management Council, 50 Water Atmospheric Administration (NOAA), Commerce. 226). Street, Mill 2, Newburyport, MA 01950. Permit No. 781–1824–00 (issued on ACTION: Notice; receipt of application for FOR FURTHER INFORMATION CONTACT: Paul March 31, 2006; 74 FR 19875), as permit amendment. J. Howard, Executive Director, New amended by Permit No. 781–1824–01

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(minor amendment issued on May 26, DEPARTMENT OF COMMERCE Countervailing Duty Order, Finding, or 2006), authorizes the permit holder to Suspended Investigation; Opportunity conduct research to determine the International Trade Administration to Request Administrative Review, 74 abundance, distribution, movement [A–570–918] FR 50772 (October 1, 2009). On October patterns, habitat use, contaminant 30, 2009, certain PRC exporters levels, prey, behavior, energetics, and Steel Wire Garment Hangers From the requested that the Department conduct stock structure of cetacean species in People’s Republic of China: an administrative review. On November 2 the eastern North Pacific off the coast of Preliminary Results and Preliminary 2, 2009, Petitioner also requested that Washington, Oregon, and California. Rescission, in Part, of the First the Department conduct an administrative review of 187 companies. These studies are carried out through Antidumping Duty Administrative On November 25, 2009, the Department vessel surveys, photo-identification Review initiated this review of hangers from the from large and small vessels, biological AGENCY: Import Administration, PRC with respect to 187 requested sample collection, passive acoustic International Trade Administration, companies covering the period of March monitoring, and satellite/radio and data Department of Commerce. 25, 2008, through September 30, 2009. log/time-depth tagging and tracking. SUMMARY: The Department of Commerce See Initiation of Antidumping and The permit authorizes NWFSC to take (‘‘Department’’) is conducting the first Countervailing Duty Administrative endangered blue whales (Balaenoptera administrative review of the Reviews, 74 FR 61658 (November 25, musculus), fin whales (Balaenoptera antidumping duty order on steel wire 2009) (‘‘Initiation Notice’’). physalus), humpback whales garment hangers from the People’s Between December 28, 2009, and (Megaptera novaeangliae), sperm Republic of China (‘‘PRC’’) for the period January 21, 2010, we received separate whales (Physeter macrocephalus), and March 25, 2008, through September 30, rate certifications or applications from Southern Resident killer whales (SRKW, 2009. The Department has preliminarily 15 exporters, in addition to those Orcinus orca), as well as 15 non-ESA- determined that sales have been made received from the mandatory listed cetacean species. The permit below normal value (‘‘NV’’) by the respondents as discussed in the expires on April 14, 2011. respondents. If these preliminary results ‘‘Respondent Selection’’ section below. are adopted in our final results of this For a detailed discussion of the separate The permit holder is requesting the review, the Department will instruct rate applicants, see the ‘‘Separate Rates’’ permit be amended to increase the U.S. Customs and Border Protection section below. Additionally, between number of SRKW suction cup tagged (‘‘CBP’’) to assess antidumping duties on December 16, 2009, and December 28, (from 10 to 20 animals annually) and to all appropriate entries of subject 2009, the Department received no- add satellite tagging of six SRKW with merchandise during the period of shipment certifications from five dart tags annually. The primary purpose review (‘‘POR’’). Interested parties are companies. For a detailed discussion of of this request is to determine winter invited to comment on these the companies that certified they had no ranges and increase data on distribution preliminary results. shipments during the POR, see the patterns of SRKW for use in critical DATES: Effective Date: November 9, ‘‘Preliminary Partial Rescission of habitat determinations. The activities 2010. Administrative Review’’ section below. As explained in the memorandum are requested for the duration of the FOR FURTHER INFORMATION CONTACT: permit. from the Deputy Assistant Secretary for Irene Gorelik or Josh Startup, AD/CVD Import Administration, the Department In compliance with the National Operations, Office 9, Import has exercised its discretion to toll Environmental Policy Act of 1969 (42 Administration, International Trade deadlines for the duration of the closure U.S.C. 4321 et seq.), a draft Administration, Department of of the Federal Government from supplemental environmental assessment Commerce, 14th Street and Constitution February 5, through February 12, 2010. (SEA) has been prepared to examine Avenue, NW., Washington, DC 20230; See Memorandum to the Record whether significant environmental telephone: (202) 482–6905 or (202) 482– regarding ‘‘Tolling of Administrative impacts could result from issuance of 5260, respectively. Deadlines As a Result of the the proposed scientific research permit. SUPPLEMENTARY INFORMATION: Government Closure During the Recent The draft SEA is available for review Background Snowstorm,’’ dated February 12, 2010. and comment simultaneous with the Thus, all deadlines in this segment of scientific research permit application. On October 6, 2008, the Department the proceeding have been extended by published in the Federal Register an Concurrent with the publication of seven days. On April 30, 2010, the antidumping duty order on steel wire Department also published a notice in this notice in the Federal Register, garment hangers (‘‘hangers’’) from the NMFS is forwarding copies of this the Federal Register extending the PRC. See Notice of Antidumping Duty deadline for issuing the preliminary application to the Marine Mammal Order: Steel Wire Garment Hangers from Commission and its Committee of results by 120 days to November 7, the People’s Republic of China, 73 FR 2010.3 See First Antidumping Duty Scientific Advisors. 58111 (October 6, 2008). On October 1, Dated: November 3, 2010. 2009, the Department published in the not subject to antidumping duties. See, e.g., Notice P. Michael Payne, Federal Register a notice of opportunity of Preliminary Results of Antidumping Duty to request an administrative review of Administrative Review: Low Enriched Uranium Chief, Permits, Conservation and Education hangers from the PRC for the period from France, 69 FR 3883 (January 27, 2004). However, for the purposes of these preliminary Division, Office of Protected Resources, March 25, 2008, to September 30, National Marine Fisheries Service. results, we are basing the margin calculation on all 2009.1 See Antidumping or reported U.S. sales made during the POR because [FR Doc. 2010–28271 Filed 11–8–10; 8:45 am] we are unable to determine whether any of the BILLING CODE 3510–22–P 1 The Department generally does not include respondents’ reported U.S. sales entered during the merchandise that entered the United States during gap period. the provisional measures gap period (‘‘gap period’’), 2 M&B Metal Products Co., Inc. in this case, September 22, 2008, to October 2, 2008, 3 Department practice dictates that where a in our margin calculation because these entries are deadline falls on a weekend, the appropriate

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Administrative Review of Steel Wire Preliminary Partial Rescission of U.S. Harmonized Tariff Schedule Hangers From the People’s Republic of Administrative Review (‘‘HTSUS’’) subheadings 7326.20.0020 China: Extension of Time Limit for the Pursuant to 19 CFR 351.213(d)(3), we and 7323.99.9060. Although the HTSUS subheadings are Preliminary Results, 75 FR 22739 (April preliminarily determine that the provided for convenience and customs 30, 2010). following companies made no purposes, the written description of the shipments of subject merchandise Respondent Selection merchandise is dispositive. during the POR: Viet Anh Import-Export Section 777A(c)(1) of the Tariff Act of Joint Stock Company; Dong Nam A Co., Affiliation/Single Entity 1930, as amended (‘‘the Act’’), directs the Ltd.; Vietnam Hangers Joint Stock Based on the evidence presented in Department to calculate individual Company; Royal McGoun Chemicals the Shanghai Wells’ questionnaire dumping margins for each known Inc.; and NV Hanger Co., Ltd. As stated responses, we preliminarily find that exporter or producer of the subject above, the Department received no- Shanghai Wells, Hong Kong Wells merchandise.4 However, section shipment certifications from the Limited (‘‘HK Wells’’), and Hong Kong 777A(c)(2) of the Act gives the aforementioned companies between Wells Limited (USA) are affiliated, Department the discretion to limit its December 16, 2009, and December 28, pursuant to sections 771(33)(A), (E), and examination to a reasonable number of 2009. (F) of the Act. In addition, based on the exporters or producers if it is not The Department also issued a no- evidence presented in its questionnaire practicable to examine all exporters or shipments inquiry to CBP, asking it to responses, we preliminarily find that producers involved in an administrative provide any information contrary to our Shanghai Wells and HK Wells should be review. CBP run showing zero entries of subject treated as a single entity for the merchandise for merchandise purposes of this administrative review. On November 30, 2009, the manufactured and shipped by the This finding is based on our Department released CBP data for aforementioned companies. We did not determination that HK Wells is involved entries of subject merchandise during receive any response from CBP in the export of subject merchandise the POR under administrative protective indicating whether there were any produced by Shanghai Wells and that a order (‘‘APO’’) to all interested parties entries of subject merchandise into the significant potential for manipulation of having an APO as of five days after United States during the POR which price or production exists between these publication of the Initiation Notice, and were exported by these companies. two entities.7 See 19 CFR 351.401(f)(1) invited comments regarding the CBP Consequently, we preliminary and (2). For further discussion of the data and respondent selection. The determine that none of the above-named Department’s affiliation and single- Department received comments and companies had shipments of subject entity decisions, see ‘‘Memorandum to rebuttal comments from Petitioner and merchandise to the United States during Catherine Bertrand, Program Manager, certain PRC exporters between the POR, and we are preliminarily AD/CVD Operations, Office 9, from November 30, 2009, and December 7, rescinding the review with respect to Irene Gorelik, Senior Case Analyst, AD/ 2009. the above-named companies.6 CVD Operations, Office 9: Preliminary Results in the Antidumping Duty On February 12, 2010, the Department Scope of the Order issued the respondent selection Administrative Review of Steel Wire memorandum after assessing its The merchandise that is subject to the Garment Hangers from the People’s resources and determining that it could order is steel wire garment hangers, Republic of China: Affiliation/Single fabricated from carbon steel wire, only reasonably examine two exporters Entity Memorandum for Shanghai Wells whether or not galvanized or painted, ’’ subject to this review. Pursuant to Hanger Co., Ltd., dated concurrently whether or not coated with latex or with this notice. Consequently, we have section 777A(c)(2)(B) of the Act, the epoxy or similar gripping materials, calculated a single antidumping duty Department selected Shanghai Wells and/or whether or not fashioned with rate for the single entity comprised of Hanger Co., Ltd. (‘‘Shanghai Wells’’) and paper covers or capes (with or without Shanghai Wells and HK Wells, Shaoxing Dingli Metal Clotheshorse Co., printing) and/or nonslip features such hereinafter referred to as the Wells ‘‘ ’’ Ltd. ( Shaoxing Dingli ) as mandatory Group. 5 as saddles or tubes. These products may respondents. The Department sent the also be referred to by a commercial Surrogate Country and Surrogate Value non-market economy (‘‘NME’’) designation, such as shirt, suit, strut, Data antidumping questionnaire to Shanghai caped, or latex (industrial) hangers. Wells and Shaoxing Dingli on February Specifically excluded from the scope of On March 25, 2010, the Department 12, 2010. the order are wooden, plastic, and other sent interested parties a letter inviting comments on surrogate country Period of Review garment hangers that are not made of steel wire. Also excluded from the scope selection and information regarding The POR is March 25, 2008, to of the order are chrome-plated steel wire valuing factors of production (‘‘FOPs’’). September 30, 2009. garment hangers with a diameter of 3.4 On May 21, 2010, Petitioner filed mm or greater. The products subject to 7 While HK Wells is not a producer of hangers, deadline is the next business day. See Notice of the order are currently classified under we note that where companies are affiliated, and ‘‘ ’’ Clarification: Application of Next Business Day there exists a significant potential for manipulation Rule for Administrative Determination Deadlines 6 See, e.g., Fourth Administrative Review of of prices and/or export decisions, the Department Pursuant to the Tariff Act of 1930, As Amended, 70 Certain Frozen Warmwater Shrimp From the has found it appropriate to treat those companies FR 24533 (May 10, 2005). People’s Republic of China: Preliminary Results, as a single entity. The Court of International Trade 4 See also 19 CFR 351.204(c) regarding Preliminary Partial Rescission of Antidumping Duty upheld the Department’s decision to include export respondent selection, in general. Administrative Review and Intent Not To Revoke, decisions in its analysis of whether there was a 5 See ‘‘Memorandum to James Doyle, Director, In Part, 75 FR 11855 (March 12, 2010), unchanged significant potential for manipulation. See Hontex AD/CVD Operations, Office 9, from Josh Startup, in Administrative Review of Certain Frozen Enterprises v. United States, 248 F. Supp. 2d 1323, Analyst; First Administrative Review of Steel Wire Warmwater Shrimp From the People’s Republic of 1343 (CIT 2003). In this case, not only is HK Wells Garment Hangers from the People’s Republic of China: Final Results and Partial Rescission of an exporter of subject merchandise, but it is an China: Selection of Respondents for Individual Antidumping Duty Administrative Review, 75 FR exporter of the subject merchandise produced by its Review,’’ dated February 12, 2010. 49460 (August 13, 2010). affiliate, Shanghai Wells.

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comments on surrogate country comparable country is a significant involving Non-Market Economy selection, stating India, the Philippines, producer of comparable merchandise Countries, 70 FR 17233 (April 5, 2005) Indonesia and Thailand may be and whether the data for valuing FOPs (‘‘Policy Bulletin 05.1’’), also available at: appropriate surrogates if there were are both available and reliable. http://ia.ita.doc.gov/policy/index.html. publicly available, reliable and Regarding the ‘‘significant producer’’ However, the standard for eligibility for contemporaneous data for them, and prong of section 773(c)(4)(B) of the Act, a separate rate (which is whether a firm Shaoxing Dingli filed comments the Department identified all countries can demonstrate an absence of both de recommending the Department select that had exports of comparable jure and de facto government control India as a surrogate country. On June 1, merchandise (defined as exports under over its export activities) has not 2010, the Department received HTS 7326.20, 7323.99, the HTS changed. information to value FOPs from numbers identified in the scope of the As noted above, a designation of a Shaoxing Dingli and Petitioner. On June order) between 2007 and 2009, and country as an NME remains in effect 1, 2010, the Department also received deemed such countries to be significant until it is revoked by the Department. surrogate value (‘‘SV’’) information from producers. In this case, we have defined See section 771(18)(c)(i) of the Act. In Fabricare Choice Distributors Group, an a ‘‘significant producer’’ as a country proceedings involving NME countries, it interested party. On June 11, 2010, that has exported comparable is the Department’s practice to begin Petitioner and Shaoxing Dingli filed merchandise in between 2007 and 2009. with a rebuttable presumption that all rebuttal comments with respect to SVs. The Department has determined that companies within the country are On June 21, 2010, Petitioner and India is the appropriate surrogate subject to government control and thus Shaoxing Dingli provided additional country for use in this review. The should be assessed a single antidumping factual information concerning SV Department based its decision on the duty rate. See Policy Bulletin 05.1; see information. On July 1, 2010, Shaoxing following facts: (1) India is at a level of also Notice of Final Determination of Dingli filed rebuttal comments to economic development comparable to Sales at Less Than Fair Value, and Petitioner’s factual information that of the PRC; (2) India is a significant Affirmative Critical Circumstances, In concerning SV information. Both producer of comparable merchandise; Part: Certain Lined Paper Products From Petitioner and Shaoxing Dingli provided and (3) India provides the best the People’s Republic of China, 71 FR SVs from sources in India, while opportunity to use quality, publicly 53079, 53080 (September 8, 2006); and Petitioner also provided SVs from available data to value the FOPs. Final Determination of Sales at Less Thailand. Although Petitioner provided SV data Than Fair Value and Final Partial for both Thailand and India, India’s data Affirmative Determination of Critical Surrogate Country is the best available data on the record Circumstances: Diamond Sawblades When the Department investigates for selection as the primary surrogate. and Parts Thereof from the People’s imports from an NME country and Therefore, we have selected India as the Republic of China, 71 FR 29303, 29307 available information does not permit surrogate country and, accordingly, (May 22, 2006). the Department to determine NV have calculated NV using Indian prices It is the Department’s policy to assign pursuant to section 773(a) of the Act, to value the respondent’s FOPs, when all NME exporters of merchandise then, pursuant to section 773(c)(4) of the available and appropriate. We have subject to an administrative review this Act, the Department bases NV on an obtained and relied upon publicly single rate unless an exporter can NME producer’s FOPs, to the extent available information wherever affirmatively demonstrate that it is possible, in one or more market- possible. sufficiently independent from economy countries that (1) are at a level government control so as to be entitled Non-Market Economy Country Status to a separate rate. See Policy Bulletin of economic development comparable to In every proceeding conducted by the 05.1. The Department analyzes each that of the NME country, and (2) are Department involving the PRC, we have entity exporting the subject significant producers of comparable treated it as an NME country. In merchandise under a test arising from merchandise. Regarding the ‘‘level of accordance with section 771(18)(C)(i) of the Notice of Final Determination of economic development,’’ the the Act, any determination that a Sales at Less Than Fair Value: Sparklers Department places primary emphasis on country is an NME shall remain in effect from the People’s Republic of China, 56 per capita gross national income (‘‘GNI’’) until revoked by the Department. See, FR 20588 (May 6, 1991) (‘‘Sparklers’’), as as the measure of economic e.g., Brake Rotors From the People’s further developed in Notice of Final comparability.8 Using per capita GNI, Republic of China: Final Results and Determination of Sales at Less Than the Department determined that India, Partial Rescission of the 2004/2005 Fair Value: Silicon Carbide from the Indonesia, Philippines, Peru, Ukraine Administrative Review and Notice of People’s Republic of China, 59 FR 22585 and Thailand are countries comparable Rescission of 2004/2005 New Shipper (May 2, 1994) (‘‘Silicon Carbide’’). to the PRC in terms of economic Review, 71 FR 66304 (November 14, However, if the Department determines development.9 Once we have identified 2006). None of the parties to this that a company is wholly foreign-owned the countries that are economically proceeding have contested such or located in a market economy (‘‘ME’’) comparable to the PRC, we select an treatment. Accordingly, the Department country, then a separate rate analysis is appropriate surrogate country by calculated NV in accordance with not necessary to determine whether it is determining whether an economically section 773(c) of the Act, which applies independent from government control. See, e.g., Final Results of Antidumping 8 to NME countries. 19 CFR 351.408(b). Duty Administrative Review: Petroleum 9 The Department notes that these six countries Separate Rates are part of a non-exhaustive list of countries that are Wax Candles from the People’s Republic at a level of economic development comparable to To obtain separate rate status, the of China, 72 FR 52355, 52356 the PRC. See the Department’s letter to ‘‘All Department requires exporters and (September 13, 2007). Interested Parties; First Administrative Review of producers to submit a separate rate Excluding the companies selected for Steel Wire Garment Hangers from the People’s Republic of China: Deadlines for Surrogate Country status certification and/or application. individual review, the Department and Surrogate Value Comments,’’ dated March 25, See Separate Rates and Combination received separate rate applications or 2010 at 1 and Attachment I. Rates in Antidumping Investigations certifications from the following 15

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companies: (1) Shaoxing Gangyuan granted a separate rate: (1) An absence and sign contracts and other Metal Manufactured Co. Ltd.; (2) of restrictive stipulations associated agreements; (3) the companies have Shaoxing Tongzhou Metal with an individual exporter’s business autonomy from the government in Manufactured Co. Ltd.; (3) Shaoxing and export licenses; (2) any legislative making decisions regarding the Andrew Metal Manufactured Co., Ltd.; enactments decentralizing control of selection of management; and (4) there (4) Shaoxing Shunji Metal Clotheshorse companies; and (3) any other formal is no restriction on any of the Co., Ltd.; (5) Yiwu Ao-Si Metal Products measures by the government companies’ use of export revenue.15 Co., Ltd.; (6) Shangyu Baoxiang Metal decentralizing control of companies. See Therefore, the Department preliminarily Manufactured Co., Ltd.; (7) Jiaxing Boyi Sparklers, 56 FR at 20589. The evidence finds that Shaoxing Dingli and the 15 Medical Device Co., Ltd.; 10 (8) Pu Jiang provided by Shaoxing Dingli and the 15 separate rate applicants have County Command Metal Products Co., separate rate applicants supports a established that they qualify for a Ltd.; (9) Shaoxing Meideli Metal Hanger preliminary finding of de jure absence separate rate under the criteria Co., Ltd.; (10) Shaoxing Zhongbao Metal of government control based on the established by Silicon Carbide and Manufactured Co., Ltd.; (11) Zhejiang following: (1) an absence of restrictive Sparklers. Lucky Cloud Hanger Co., Ltd.; (12) stipulations associated with the B. Companies Located Outside the PRC Ningbo Dasheng Hanger Ind. Co., Ltd.; individual exporter’s business and (13) Shaoxing Guochao Metallic export licenses; (2) there are applicable Based on the public certificate of Products Co., Ltd.; (14) Shanghai Jianhai legislative enactments decentralizing service in Petitioner’s request for International Trade Co., Ltd.; and (15) control of the companies; and (3) there administrative review, dated November Shaoxing Liangbao Metal Manufactured are formal measures by the government 2, 2009, the record indicates that 70 of Co., Ltd. decentralizing control of companies.14 the 187 companies upon which the Department initiated this administrative A. Separate Rate Recipients b. Absence of De Facto Control review are located outside of the PRC.16 1. Wholly Foreign-Owned Typically the Department considers four factors in evaluating whether each 15 See, e.g., Shaoxing Dingli’s Section A Shanghai Wells reported that it is a respondent is subject to de facto Questionnaire Response dated September 5, 2008, wholly foreign-owned entity.11 at 5–9; Shaoxing Guochao Metallic Products Co., government control of its export Ltd.’s Separate Rate Certification dated December Additionally, there is no evidence that functions: (1) Whether the export prices the Wells Group is under the control of 28, 2009, at 5; Shaoxing Andrew Metal are set by or are subject to the approval Manufactured Co., Ltd.’s Separate Rate Certification the PRC government, and we have of a government agency; (2) whether the dated December 28, 2009, at 7. determined that further separate rate respondent has authority to negotiate 16 See Petitioner’s November 2, 2009, review request. These 70 companies are: Ahlers Vina analysis is not necessary to determine and sign contracts and other whether this entity is independent from Logistics; Alpi Trading Service Co., Ltd.; Amerasian agreements; (3) whether the respondent Shipping Logistics Corp.; Anc Service Co., Ltd.; 12 government control. Thus, we have has autonomy from the government in Angang Clothes Rack Manufacture Co.; Apex preliminarily granted separate rate making decisions regarding the Holding Group Limited.; Arturo Huizar Velazquez; status to the Wells Group. Biz Sources Inc. (Biz Sources PTY Ltd.); Canada selection of management; and (4) Cleaning Supply Corp.; Centurion Logistics 2. Joint Ventures Between Chinese and whether the respondent retains the Services Ltd.; Cohesion Freight (HK) Ltd.; Cong Ty Foreign Companies or Wholly Chinese- proceeds of its export sales and makes Duoc Thao; Cong Ty Trach Nhiem (CTN Co., Ltd.); independent decisions regarding Diep Son Hangers One Member Co., Ltd.; Dma Owned Companies Logistics Inc.; Dong Nam A Co., Ltd.; Evergreen disposition of profits or financing of Shaoxing Dingli 13 and the 15 separate Logistics Vietnam Co., Ltd.; Far Go Express losses. See Silicon Carbide, 59 FR at Company Limited; Focus Shipping Corp.; For You rate applicants in this administrative 22586–87; see also Notice of Final Beautiful Industrial Co., Ltd.; General Merchandise review stated that they are either joint Determination of Sales at Less Than Consolidators, Inc.; Giant Choice Co., Ltd.; Gle ventures between Chinese and foreign Logistics Co., Ltd.; Globe Express Services S.a.r.L. Fair Value: Furfuryl Alcohol From the companies or are wholly Chinese- Co., Ltd.; Good Wonder Limited; Hcmc General People’s Republic of China, 60 FR Import and Export Investment Joint Stock Company owned companies. The Department has 22544, 22545 (May 8, 1995). The (IMexico); Hippo Logistics Co., Ltd.; Honour Lane analyzed whether Shaoxing Dingli and Logistics Co., Ltd.; Honour Lane Shipping Limited; Department has determined that an the 15 separate rate applicants have Intercontinental Shipping Co., Ltd.; Ju Fu Co., Ltd.; analysis of de facto control is critical in demonstrated the absence of de jure and KB Steel; Kingly Industry (Canada) Corp.; Korea determining whether respondents are, Laundry Industry Co., Ltd.; Kyung Dong Industrial de facto governmental control over their in fact, subject to a degree of Co., Ltd.; Limpiaduria Zaragoza Huizar; Maple respective export activities. Hangers Inc.; Mico Mit Co., Ltd.; Moc Viet government control which would Manufacture Co., Ltd.; Multi–Sander Tech. Co., a. Absence of De Jure Control preclude the Department from assigning Ltd.; N2j Co., Ltd.; NV Hanger Co., Ltd.; Oec Freight The Department considers the separate rates. The evidence provided Worldwide Co., Ltd.; Orient Star Shipping Pte.; by Shaoxing Dingli and the 15 separate Oriental Dragon Co., Ltd.; Oriental Logistics Group following de jure criteria in determining Ltd.; P T Transportation Ltd.; Pacific Star Express whether an individual company may be rate applicants supports a preliminary Corporation; Price Group Ltd.; Prolim De Baja finding of de facto absence of California; Quyky–yanglei International Co., Ltd.; Rising Trade Inc.; Royal Cargo Combined Logistics, 10 The Department inadvertently misspelled government control based on the Inc.; Royal McGoun Inc.; Seamaster Logistics Inc.; Jiaxing Boyi Medical Device Co., Ltd.’s name in the following: (1) The companies set their Sirius Global Logistics Co., Ltd.; Smart Concept ‘‘ Initiation Notice as Jianxing Boyi Medical Device own export prices independent of the Trading Limited; Star Glory Ltd.; Summit Logistics ’’ Co., Ltd. The name has been corrected for these government and without the approval of International Inc.; Sun Vn Transport Corp. (Sunvn preliminary results. a government authority; (2) the Transport Corporation); Tay Ruey Enterprise Co.; 11 See Shanghai Wells’ Section A Questionnaire Thanh Hieu Manufacturing Trading Co., Ltd.; Top Response, dated March 12, 2010, at 2. companies have authority to negotiate Harvest Metal Co. Ltd.; Topocean Vietnam; 12 See, e.g, Notice of Final Determination of Sales Transworld Transportation Co., Ltd.; Twt– at Less Than Fair Value: Creatine Monohydrate 14 See, e.g., Shaoxing Dingli’s Section A Transworld Transportation Co., Ltd.; Unitex from the People’s Republic of China, 64 FR 71104, Questionnaire Response dated March 8, 2010, at 2– International Forwarding (HK) Ltd., Vantage 71104–05 (December 20, 1999) (where the 4; Shaoxing Shunji Metal Clotheshorse Co., Ltd.’s Logistics Corporation; Viet Anh Import–Export Joint respondent was wholly foreign-owned and, thus, Separate Rate Certification dated December 28, Stock Company; Vietnam Hangers Joint Stock qualified for a separate rate). 2009, at 4; Shaoxing Meideli Metal Hanger Co., Company; Wiexin Cargo Services Co., Ltd.; Whale 13 See Shaoxing Dingli’s Section A Questionnaire Ltd.’s Separate Rate Certification dated December Logistics Company Ltd.; Winwell Industrial Response, dated March 8, 2010, at 2. 28, 2009, at 4–5. Continued

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None of these companies have requested listed in the Initiation Notice have not amount equal to the weighted average of that the Department assign to them their demonstrated their eligibility for the estimated weighted average own rate or certified that they had no separate rate status in this dumping margins established for shipments of subject merchandise administrative review. Therefore, the exporters and producers individually during the POR. Because the 70 Department preliminarily determines investigated * * *’’ companies did not request the that because there were exports of Because using the weighted-average Department to assign to them their own merchandise under review from PRC margin based on the calculated net U.S. rate, any exports of subject merchandise exporters that did not demonstrate their sales values for the Wells Group and by these non-PRC exporters will be eligibility for separate rate status, we are Shaoxing Dingli would allow these two subject to the cash deposit rate of the treating these companies as part of the respondents to deduce each other’s PRC exporters that supplied them. PRC-wide entity, and subject to the business-proprietary information and PRC-wide entity rate of 187.25 percent. thus cause an unwarranted release of C. PRC-Wide Entity such information, we cannot assign to As stated above in the ‘‘Background’’ Separate Rate Calculation the separate rate companies the section, the Department initiated an The statute and our regulations do not weighted-average margin based on the administrative review with respect to address directly how we should calculated net U.S. sales values from 187 companies. The Department establish a rate to apply to imports from these two respondents. provided companies not selected for companies which we did not select for For these preliminary results, we individual examination the opportunity individual examination in accordance determine that using the ranged total to file either a separate rate application with section 777A(c)(2) of the Act in an U.S. sales values the Wells Group and or certification, which was made administrative review. Generally, we Shaoxing Dingli reported in the public available on the Department’s website. have used section 735(c)(5) of the Act, versions of their responses (dated April See Initiation Notice, 74 FR at 61658–9. which provides instructions for 12, 2010, and October 13, 2010, Out of the 187 companies, excluding the calculating the all-others rate in an respectively) to our request for two mandatory respondents, 15 filed investigation, as guidance when we information concerning the quantity and either separate rate certifications or establish the rate for respondents not value of their exports to the United separate rate applications. Of the examined individually in an States is more appropriate than applying remaining companies, five reported administrative review.18 Section a simple average. These publicly having made no shipments to the 735(c)(5)(A) of the Act provides that available figures provide the basis on United States during the POR and 70 ‘‘the estimated all-others rate shall be an which we can calculate a margin which companies appear to be located outside is the best proxy for the weighted- of the PRC, thus an analysis of whether Hardware & Plastic Products Co., Ltd.; Kuehne & average margin based on the calculated these companies have rebutted the Nagel Ltd.; Laidlaw Company LLC; Laidlaw Metal net U.S. sales values of the Wells Group Products Co., Ltd.; Laidlaw Shanghai; Lights Out presumption of PRC government control Machinery Co., Ltd.; Link & Link Shipping Ltd.; and Shaoxing Dingli. We find that this is moot. Nanchang Tuhai Industry Co., Ltd.; Ningbo Eidz approach is more consistent with the However, 94 companies upon which Holding Ltd.; Ningbo Jude Trading Co., Ltd.; Ningbo intent of section 735(c)(5)(A) of the Act we initiated a review, and which are Peacebird Import & Export Co., Ltd.; Ningbo Yifan and our use of section 735(c)(5)(A) of located within the PRC, did not: (1) International Forwarding Agency Co., Ltd.; Ocean Star International Logistics Co., Ltd.; Odyssey the Act as guidance when we establish Apply for separate rate status; or (2) International (China) Ltd.; Orient Express Container the rate for respondents not examined notify the Department that they had no Co., Ltd.; Orient Star Transport International Ltd.; individually in an administrative shipments of subject merchandise Pacific Star International Logistics (China) Co., Ltd.; review. 17 Phoenix International Freight Services Ltd.; Pingye during the POR. These 94 companies Foreign Transportation Co., Ltd.; Post–Pop Art Co., Because the calculated net U.S. sales Ltd.; Pudong Trans USA, Inc.; RDD Freight values for the Wells Group and Limited; Zownzi Hardware Hanger Fty Ltd.; and International Inc.; Rich Shipping Company Limited; Shaoxing Dingli are business- Zynpak Packaging Products Inc. Schenker China Ltd.; Sea Bright International proprietary figures, we find that 6.58 17 These 94 companies are: Acrowell Industrial; Shanghai Air Sea Transport Inc.; International Logistics; Acx Logistics (China) Ltd.; Shanghai Channel International Logistics; Shanghai percent, which we calculated using the Agility Logistics (Shanghai) Ltd.; Alcon Express Fanyuan Freight Forwarding; Shanghai Garment publicly available figures of U.S. sales Corp.; Anhui Whywin International Co., Ltd.; Apex Group Import/Export Corp.; Shanghai Light values for these two firms, is the best Maritime Co. Ltd.; Apl Logistics China, Ltd.; Ate Industry and Textile Group Co., Ltd.; Shanghai reasonable proxy for the weighted- Logistics Co., Ltd.; Beijing Kang Jie Kong Cargo T.H.I Transport Co., Ltd.; Shaoguang International Agent Co., Ltd.; Brilliant Globe Logistics Inc.; China Trade Co.; Shaoxing Leiluo Metal Manufactured; average margin based on the calculated Coast Freight Co., Ltd.; China Container Line Shenzhen Center Link International; Shenzhen net U.S. sales values of the Wells Group (Shanghai) Ltd.; China International Freight Co., Pacific–Net Logistics Inc.; Shipping & Distribution and Shaoxing Dingli. See Ltd.; China Ocean Shipping Agency (Ningbo); City Ltd.; Sino Connections Logistics Inc.; Sinobo ‘‘Memorandum to the File from Joshua Ocean Logistics Co., Ltd.; Cixi K&J International International Logistics Co., Ltd.; Sinotrans Zhejiang Co., Ltd.; Cohesion Freight Agency Ltd. (Shanghai); Co., Ltd.; The Houjie Town Yongxiang/Hardware Startup, Analyst, through Catherine De Well Container Shipping Corp.; Direct Service Processing Plant; Tianjin Hongtong Metal Bertrand, Program Manager, Office 9; Inc.; Distribution Rsjo Inc.; Dragon Trading Manufacture Co., Ltd.; Top Shipping Logistics Co., First Administrative Review of Steel Shipping Co., Ltd.; Dynamic Network Container Ltd.; Topocean Consolidation Service (China) Ltd.; Wire Garment Hangers from the PRC: Line Ltd.; Expeditors China; Fastic Transportation Translink Shipping Inc.; U.S. United Logistics Inc.; ’’ Co., Ltd.; Fortune Freight International Co., Ltd.; Ge Unique Logistics International (HK) Ltd.; Ups Scs Calculation of the Separate Rate, dated Li Commerce Co., Ltd.; Goldever International Ltd.; Wuhu Rising International Trade Co., Ltd.; Xin concurrently with this notice. Logistics Co.; Guangdong Provincial Taoyue Mfg. Chang Heng Xin Yi Jia Factory; Zhejiang Hailiang Co., Ltd.; Guangxi Shengfeng Import and Export Co., Ltd.; Zhejiang King Merchandise Industrial; Date of Sale Co., Ltd.; Guangzhou Yanglei–Packing Co., Ltd.; and Zhejiang Peace Industry and Trade Inc. Both the Wells Group and Shaoxing Guilin Yc Enterprise Co., Ltd.; Hangzhou Rico 18 See, e.g., Administrative Review of Certain Homeware and Apparel Ltd.; Hanhen Shipping Frozen Warmwater Shrimp From the People’s Dingli reported the invoice date as the (China) Co., Ltd.; Hanjin (Shenzhen) Co., Ltd.; Republic of China Final Results and Partial date of sale because they claim that, for Hanjin Logistics (Shanghai) Co., Ltd.; Hecny Rescission of Antidumping Duty Administrative their U.S. sales of subject merchandise Shipping Limited; Huada Fashion Enterprise, Inc.; Review, 75 FR 49460 (August 13, 2010); Certain made during the POR, the material Huguang Huojia Factory; Jiangmen Hongjun Pasta from Italy: Notice of Final Results of the Hardware & Elect.; Jiangsu Globe Logistics Limited Twelfth Administrative Review, 75 FR 6352 terms of sale were established based on Co.; Jiangyin Hongji Metal Products Co., Ltd.; Jr (February 9, 2010), and accompanying Issues and the invoice date. The Department Metal Products Shanghai; Kaiping Youming Decision Memorandum at Comment 2. preliminarily determines that the

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invoice date is the most appropriate affiliate to unaffiliated purchasers in the where listed below. In past cases, it has date to use as the Wells Group and United States. For these sales, the been the Department’s practice to Shaoxing Dingli date of sale in Department based CEP on prices to the calculate an SV for various FOPs using accordance with 19 CFR 351.401(i) and first unaffiliated purchaser in the United import statistics of the primary selected the Department’s long-standing practice States. Where appropriate, the surrogate country from World Trade of determining the date of sale.19 Department made deductions from the Atlas (‘‘WTA’’), as published by Global starting price (gross unit price) for Trade Information Services (‘‘GTIS’’).20 Fair Value Comparisons foreign movement expenses, However, in October 2009, the To determine whether sales of international movement expenses, U.S. Department learned that Indian import hangers to the United States by the movement expenses, and appropriate data obtained from the WTA, as Wells Group and Shaoxing Dingli were selling adjustments, in accordance with published by GTIS, began identifying made at less than NV, the Department section 772(c)(2)(A) of the Act. the original reporting currency for India compared either export price (‘‘EP’’) or In accordance with section 772(d)(1) as the U.S. dollar. The Department then constructed export price (‘‘CEP’’) to NV, of the Act, the Department also contacted GTIS about the change in the as described in the ‘‘U.S. Price’’ and deducted those selling expenses original reporting currency for India ‘‘Normal Value’’ sections below. associated with economic activities from the Indian rupee to the U.S. dollar. U.S. Price occurring in the United States. The Officials at GTIS explained that while Department deducted, where GTIS obtains data on imports into India Export Price appropriate, commissions, inventory directly from the Ministry of Commerce, In accordance with section 772(a) of carrying costs, interest revenue, credit Government of India, as denominated the Act, the Department calculated EP expenses, warranty expenses, and and published in Indian rupees, the for a portion of sales to the United indirect selling expenses. Where foreign WTA software is limited with regard to States for the Wells Group and Shaoxing movement expenses, international the number of significant digits it can Dingli because the first sale to an movement expenses, or U.S. movement manage. Therefore, GTIS made a unaffiliated party was made before the expenses were provided by PRC service decision to change the official reporting date of importation and the use of CEP providers or paid for in renminbi, the currency for Indian data from the Indian was not otherwise warranted. The Department valued these services using rupee to the U.S. dollar in order to Department calculated EP based on the SVs (see ‘‘Factor Valuations’’ section reduce the loss of significant digits price to unaffiliated purchasers in the below for further discussion). For those when obtaining data through the WTA United States. In accordance with expenses that were provided by an ME software. GTIS explained that it section 772(c) of the Act, as appropriate, provider and paid for in an ME converts the Indian rupee to the U.S. the Department deducted from the currency, the Department used the dollar using the monthly Federal starting price to unaffiliated purchasers reported expense. Due to the proprietary Reserve exchange rate applicable to the foreign inland freight and brokerage and nature of certain adjustments to U.S. relevant month of the data being handling (‘‘B&H’’). Each of these services price, for a detailed description of all downloaded and converted.21 was either provided by a NME vendor adjustments made to U.S. price for each However, the data reported in the or paid for using a NME currency. Thus, company, see the company specific GTA software report import statistics, the Department based the deduction of analysis memoranda, dated November 8, such as data from India, in the original these movement charges on surrogate 2010. reporting currency and thus these data correspond to the original currency values. See ‘‘Memorandum to the File Normal Value from Josh Startup, Analyst, through value reported by each country. Catherine Bertrand, Program Manager; Section 773(c)(1) of the Act provides Additionally, the data reported in GTA First Administrative Review of Steel that the Department shall determine the software are reported to the nearest digit Wire Garment Hangers from the NV using an FOP methodology if the and thus there is not a loss of data by People’s Republic of China: Surrogate merchandise is exported from an NME rounding, as there is with the data Values for the Preliminary Results,’’ and the information does not permit the reported by the WTA software. dated November 8, 2010 (‘‘Prelim calculation of NV using home-market Consequently, the Department will now Surrogate Value Memo’’) for details prices, third-country prices, or obtain import statistics from GTA for regarding the surrogate values for constructed value under section 773(a) valuing FOPs because the GTA import movement expenses. For international of the Act. Further, pursuant to section statistics are in the original reporting freight provided by a ME provider and 773(c)(1) of the Act, the valuation of an currency of the country from which the paid in U.S. dollars, the Department NME respondent’s FOPs shall be based data are obtained and have the same used the actual cost per kilogram (‘‘kg’’) on the best available information level of accuracy as the original data of the freight. regarding the value of such factors in an released. ME country or countries considered to With respect to the SVs based on Constructed Export Price be appropriate by the Department. The Indian import statistics, the Department For some of the Wells Group’s and Department bases NV on the FOPs Shaoxing Dingli’s sales, the Department because the presence of government 20 See Certain Preserved Mushrooms From the controls on various aspects of NMEs People’s Republic of China: Preliminary Results of based U.S. price on CEP in accordance Antidumping Duty New Shipper Review, 74 FR with section 772(b) of the Act, because renders price comparisons and the 50946, 50950 (October 2, 2009), unchanged in sales were made on behalf of the calculation of production costs invalid Certain Preserved Mushrooms From the People’s under the Department’s normal Republic of China: Final Results of Antidumping Chinese-based companies by a U.S. Duty New Shipper Review, 74 FR 65520 (December methodologies. 10, 2009). 19 See, e.g., Notice of Final Determination of Sales The Department used Indian import 21 See Certain Oil Country Tubular Goods from at Less Than Fair Value and Negative Final statistics to value the raw material and the People’s Republic of China: Final Determination Determination of Critical Circumstances: Certain packing material inputs that the Wells of Sales at Less Than Fair Value, Affirmative Final Frozen and Canned Warmwater Shrimp From Group and Shaoxing Dingli used to determination of Critical Circumstances and Final Thailand, 69 FR 76918 (December 23, 2004), and Determination of Targeted Dumping, 75 FR 20335 accompanying Issues and Decision Memorandum at produce the merchandise under (April 19, 2010), and accompanying Issues and Comment 10. investigation during the POR, except Decision Memorandum at Comment 4.

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has disregarded prices that the Factor Valuations Monetary Fund, a printout of which is Department has reason to believe or In accordance with section 773(c) of attached to the Prelim Surrogate Value suspect may be subsidized. In the Act, for subject merchandise Memo at Exhibit 2. See also PET Film. accordance with the OTCA 1988 produced by the Wells Group and Where necessary, the Department legislative history, the Department Shaoxing Dingli, the Department adjusted SVs for inflation, exchange continues to apply its long-standing calculated NV based on the FOPs rates, and taxes, and the Department practice of disregarding SVs if it has a reported by the Wells Group and converted all applicable items to a per reason to believe or suspect the source Shaoxing Dingli for the POR. The kg basis. The Department valued electricity data may be subsidized.22 The Department used data from GTA and using the updated electricity price data Department has previously found that it other publicly available Indian sources for small, medium, and large industries, is appropriate to disregard such prices in order to calculate SVs for the Wells as published by the Central Electricity from India, Indonesia, South Korea and Group and Shaoxing Dingli FOPs (direct Authority, an administrative body of the Thailand because we have determined materials, energy, and packing Government of India, in its publication materials) and certain movement that these countries maintain broadly titled Electricity Tariff & Duty and available, non-industry specific, export expenses. To calculate NV, the Average Rates of Electricity Supply in 23 subsidies. Based on the existence of Department multiplied the reported per- India, dated March 2008. These these subsidy programs that were unit factor quantities by publicly electricity rates represent actual generally available to all exporters and available Indian SVs (except as noted country-wide, publicly available producers in these countries at the time below). Because the statute is silent information on tax-exclusive electricity of the POR, the Department finds that it concerning what constitutes the ‘‘best rates charged to small, medium, and has reason to believe or suspect that all available information’’ for a particular large industries in India. We did not exporters from Indonesia, South Korea SV, the courts have recognized that the inflate this value because utility rates and Thailand may have benefitted from Department enjoys ‘‘broad discretion to represent current rates, as indicated by these subsidies and that we should determine the best available information the effective dates listed for each of the therefore disregard any data from these for an antidumping review.’’ See Ad Hoc rates provided. See Prelim Surrogate countries contained in the Indian Shrimp Trade Action Comm. v. United Value Memo. import statistics used to calculate SVs. States, 2010 U.S. App. LEXIS 18745 The Department valued water using Additionally, the Department (Fed. Cir. 2010). The Department’s publicly available data from the disregarded prices from NME countries. practice when selecting the best Maharashtra Industrial Development Finally, imports that were labeled as available information for valuing FOPs Corporation (http://www.midcindia.org) originating from an ‘‘unspecified’’ is to select, to the extent practicable, because these data include a wide range country were excluded from the average SVs which are product-specific, of industrial water tariffs. This source value, because the Department could representative of a broad market provides industrial water rates within not be certain that they were not from average, publicly available, the Maharashtra province for ‘‘inside either an NME country or a country contemporaneous with the POR and industrial areas’’ and ‘‘outside industrial exclusive of taxes and duties. See, e.g., with generally available export areas’’ from April 2009 through June Electrolytic Manganese Dioxide From subsidies.24 For further discussion 2009. Because the average of these the People’s Republic of China: Final regarding all SV calculations using values is contemporaneous with the Determination of Sales at Less Than Indian import statistics derived from the POR, we did not adjust it for inflation. Fair Value, 73 FR 48195 (August 18, GTA data, see Prelim Surrogate Value See Prelim Surrogate Value Memo. 2008) and accompanying Issues and On May 14, 2010, the Court of Memo. Decision Memorandum at Comment 2. Appeals for the Federal Circuit As appropriate, the Department (‘‘CAFC’’) in Dorbest Ltd. v. United 22 Omnibus Trade and Competitiveness Act of adjusted input prices by including States, 604 F.3d 1363, 1372 (CAFC 1988, Conf. Report to Accompany H.R. 3, H.R. Rep. { No. 576, 100th Cong., 2nd Sess. (1988) at 590. freight costs to render them delivered 2010), found that the ‘‘ regression- 23 See, e.g., Carbazole Violet Pigment 23 from prices. Specifically, the Department based} method for calculating wage India: Final Results of the Expedited Five-year added to the Indian import SVs a rates {as stipulated by 19 CFR (Sunset) Review of the Countervailing Duty Order, surrogate freight cost using the shorter 351.408(c)(3)} uses data not permitted 75 FR 13257 (March 19, 2010) and accompanying of the reported distance from the { Issues and Decision Memorandum at 4–5; Certain by the statutory requirements laid out Cut-to-Length Carbon-Quality Steel Plate from domestic supplier to the factory or the in section 773 of the Act (i.e., 19 U.S.C. Indonesia: Final Results of Expedited Sunset distance from the nearest seaport to the 1677b(c))}.’’ The Department is Review, 70 FR 45692 (August 8, 2005) and factory. This adjustment is in continuing to evaluate options for accompanying Issues and Decision Memorandum at accordance with the decision of the determining labor values in light of the 4; See Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Final Results Federal Circuit in Sigma Corp. v. United recent CAFC decision. However, for of Countervailing Duty Administrative Review, 74 States, 117 F.3d 1401, 1408 (Fed. Cir. these preliminary results, we have FR 2512 (January 15, 2009) and accompanying 1997). For a detailed description of all calculated an hourly wage rate to use in Issues and Decision Memorandum at 17, 19–20; See SVs used for the Wells Group and valuing the respondents’ reported labor Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled Carbon Steel Flat Shaoxing Dingli, see Prelim Surrogate input by averaging industry-specific Products From Thailand, 66 FR 50410 (October 3, Value Memo. earnings and/or wages in countries that 2001) and accompanying Issues and Decision In those instances where the are economically comparable to the PRC Memorandum at 23. Department could not obtain publicly and that are significant producers of 24 See, e.g., Polyethylene Terephthalate Film, Sheet, and Strip from the People’s Republic of available information contemporaneous comparable merchandise. China: Preliminary Determination of Sales at Less to the POR with which to value FOPs, For the preliminary results of this Than Fair Value, 73 FR 24552, 24559 (May 5, 2008), consistent with our practice, we administrative review, the Department unchanged in Polyethylene Terephthalate Film, adjusted the SVs using, where is valuing labor using a simple average Sheet, and Strip from the People’s Republic of China: Final Determination of Sales at Less Than appropriate, the Indian Wholesale Price industry-specific wage rate using Fair Value, 73 FR 55039 (September 24, 2008) (‘‘PET Index as published in the International earnings or wage data reported under Film’’). Financial Statistics of the International Chapter 5B by the International Labor

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Organization (‘‘ILO’’). To achieve an statements of Lakshmi Precision Screws Petitioner submitted comments industry-specific labor value, we relied Ltd. (‘‘Lakshmi’’) and Nasco Steels alleging that Shaoxing Dingli may have on industry-specific labor data from the Private Limited (‘‘Nasco’’), both of which not reported the universe of subject countries we determined to be both are Indian screw/nail and fastener merchandise sales to the United States economically comparable to the PRC, manufacturers.25 Among all the other during the POR, following the and significant producers of comparable financial statements placed on the indictment of an importer of subject merchandise. A full description of the record of this review, we find that merchandise on a duty evasion industry-specific wage rate calculation Lakshmi’s and Nasco’s financial charge.29 The Department has taken methodology is provided in the Prelim statements are the most appropriate for note of this issue, but for these Surrogate Value Memo. The Department these preliminary results because they preliminary results is not including the calculated a simple average industry- are both producers of downstream sales alleged by Petitioner as specific wage rate of $1.39 for these products made of steel wire rod. unreported, because Shaoxing Dingli preliminary results. Specifically, for this Furthermore, the Department finds that produced documentation showing that a review, the Department has calculated both financial statements are bonded truck was contracted to the wage rate using a simple average of appropriate sources given that no usable transport all of the merchandise in the data provided to the ILO under Sub- financial statements are available for question to Mexico and there is no CBP Classification 28 of the ISIC–Revision 3 producers of identical merchandise. documentation that any of the alleged standard by countries determined to be Finally, Lakshmi’s and Nasco’s 2008– unreported sales entered the United both economically comparable to the 2009 financial statements fulfill the States for consumption.30 PRC and significant producers of broadest range of the criteria examined The Wells Group comparable merchandise. The by the Department when selecting Department finds the two-digit appropriate financial statements with In its questionnaire responses and description under ISIC–Revision 3 which to value SG&A expenses, such as sales databases, the Wells Group (Manufacture of Fabricated Metal contemporaneity, specificity, and reported certain expenses incurred, and Products, Except Machinery and quality of data.26 For a detailed corresponding revenues earned, related Equipment) to be the best available discussion regarding our selection of to the transportation or movement of the wage rate SV on the record because it is Lakshmi’s and Nasco’s 2008–2009 subject merchandise sales during the specific and derived from industries financial statements to calculate the POR. Our practice with respect to that produce merchandise comparable surrogate financial ratios, see Prelim revenue earned, such as freight revenue, to the subject merchandise. Surrogate Value Memo. from sales is to add the revenue to the Consequently, we averaged the ILO gross unit price.31 Here, to account for Company Specific Issues industry-specific wage rate data or post-sale adjustments of various earnings data available from the Shaoxing Dingli reported transportation-related revenues as an addition to the gross unit price following countries found to be For these preliminary results, the and the corresponding transportation- economically comparable to the PRC Department is not granting Shaoxing expenses incurred as a deduction and are significant producers of Dingli a by-product offset for ‘‘Scrap included in the international and U.S. comparable merchandise: Ecuador, the Iron Buckets’’ because they are not movement charges, we deducted the Arab Republic of Egypt, Indonesia, generated from the subject merchandise transportation-related revenues from the Jordan, Peru, Philippines, Thailand, and production process. This is consistent corresponding transportation-related Ukraine. For further information on the with the Department’s practice of not expenses, where applicable, resulting calculation of the wage rate, see Prelim granting offsets to by-products which only in a deduction of the actual Surrogate Values Memo. are not generated in the production transportation-related expense incurred, The Department valued truck freight process.27 expenses using an Indian per-unit Shaoxing Dingli reported a warranty which inherently accounts for the Wells average rate calculated from publicly expense for damaged or defective Group’s transportation-related revenues available data on the following web site: merchandise, and reported its sales earned by reducing the associated http://www.infobanc.com/logistics/ quantity net of these returns in its expenses. This is consistent with our logtruck.htm. The logistics section of Section C database. Shaoxing Dingli this web site contains inland freight credited its customers for the damaged Affirmative Determination of Sales at Less Than truck rates between many large Indian Fair Value and Partial Affirmative Determination of merchandise, and allocated the cost out Critical Circumstances, 73 FR 40485 (July 15, 2008) cities. We did not inflate this rate since over all of its sales. Consistent with the and accompanying Issues and Decision it is contemporaneous with the POR. Department’s practice, for these Memorandum at Comments 59 and 69 (where we stated that ‘‘consistent with the Department’s See Prelim Surrogate Value Memo. preliminary results, we are allowing the To value B&H, the Department used a practice, we have utilized all expenses incurred warranty expenses to be allocated over during the {period of investigation} and allocated price list of export procedures necessary all of Shaoxing Dingli’s CEP sales.28 such across all {period of investigation} sales using to export a standardized cargo of goods a value-based allocation methodology’’). 29 See Petitioner’s comments dated August 27, in India. The price list is publicly 25 Lakshmi’s 2008–2009 audited financial 2010. available and compiled based on a statements were submitted by Petitioner on June 1, 30 See, e.g., Certain Frozen Fish Fillets from the 2010. survey case study of the procedural Socialist Republic of Vietnam: Final Results of the 26 requirements for trading a standard See, e.g., Certain Preserved Mushrooms From Third New Shipper Reviews, 74 FR 29473 (June 22, shipment of goods by ocean transport in the People’s Republic of China: Final Results of 2009), and accompanying Issues and Decision India that is published in Doing Antidumping Duty Administrative Review, 72 FR Memorandum at Comments 4 and 5. 44827 (August 9, 2007), and accompanying Issues 31 See, e.g., Floor-Standing, Metal-Top Ironing Business 2010: India (published by the and Decision Memorandum at Comment 1. Tables and Certain Parts Thereof from the People’s World Bank). See Prelim Surrogate 27 See, e.g., Prestressed Concrete Steel Wire Republic of China: Preliminary Results of Value Memo. Strand From the People’s Republic of China: Final Antidumping Duty Administrative Review, 72 FR To value factory overhead, selling, Determination of Sales at Less Than Fair Value, 75 51781 (September 11, 2007), unchanged in Floor- FR 28560 (May 21, 2010) and accompanying Issues general, and administrative (‘‘SG&A’’) Standing, Metal-Top Ironing Tables and Certain and Decision Memorandum at Comment 1. Parts Thereof from the People’s Republic of China: expenses, and profit, the Department 28 See, e.g., Certain New Pneumatic Off-The-Road Final Results of Antidumping Duty Administrative used the 2008–2009 audited financial Tires from the People’s Republic of China: Final Review, 73 FR 14437 (March 18, 2008).

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treatment of the Wells Group’s STEEL WIRE GARMENT HANGERS issues to be discussed. Id. Issues raised transportation-related revenues in the FROM THE PEOPLE’S REPUBLIC OF in the hearing will be limited to those 32 underlying investigation. CHINA—Continued raised in the respective case briefs. The However, with respect to U.S. Department will issue the final results antidumping duty revenue reported by Weighted of this administrative review, including the Wells Group, the Department Manufacturer/exporter average the results of its analysis of the issues excluded this ‘‘revenue’’ item as an margin raised in any written briefs, not later (percent) addition to gross unit price, because the than 120 days after the date of increased ‘‘revenue’’ of the Wells Pu Jiang County Command publication of this notice, pursuant to Group’s U.S. sales during the POR to Metal Products Co. Ltd...... 6.58 section 751(a)(3)(A) of the Act. cover antidumping duties are already Shaoxing Meideli Metal Hanger Assessment Rates accounted for in the reported gross unit Co., Ltd...... 6.58 price, as confirmed by the Wells Group Shaoxing Zhongbao Metal Man- Upon issuance of the final results, the itself.33 For a full discussion of the ufactured Co., Ltd...... 6.58 Department will determine, and CBP Zhejiang Lucky Cloud Hanger adjustments to the gross unit price, see shall assess, antidumping duties on all Co., Ltd...... 6.58 appropriate entries covered by these ‘‘Memorandum to the File from Irene Ningbo Dasheng Hanger Ind. Gorelik, Senior Analyst: Program reviews. The Department intends to Co., Ltd...... 6.58 issue assessment instructions to CBP 15 Analysis for the Preliminary Results of Shaoxing Guochao Metallic days after the publication date of the Antidumping Duty Administrative Products Co. Ltd...... 6.58 Review of Steel Wire Garment Hangers Shanghai Jianhai International final results of this review excluding from the People’s Republic of China: Trade Co., Ltd...... 6.58 any reported sales that entered during the gap period. In accordance with 19 Shanghai Wells Hanger Co., Ltd.,’’ dated Shaoxing Liangbao Metal Manu- factured Co., Ltd...... 6.58 CFR 351.212(b)(1), we calculated November 8, 2010. PRC-Wide Entity 35 ...... 187.25 exporter/importer (or customer)-specific Currency Conversion assessment rates for the merchandise Disclosure and Public Hearing subject to this review. Where the The Department made currency respondent has reported reliable entered conversions into U.S. dollars, in The Department will disclose to values, we calculated importer (or accordance with section 773A(a) of the parties the calculations performed in customer)-specific ad valorem rates by Act, based on the exchange rates in connection with these preliminary aggregating the dumping margins effect on the dates of the U.S. sales, as results within five days of the date of calculated for all U.S. sales to each certified by the Federal Reserve Bank. publication of this notice. See 19 CFR 351.224(b). Because the Department importer (or customer) and dividing this Preliminary Results of Review intends to seek additional information, amount by the total entered value of the sales to each importer (or customer). See The Department preliminarily the Department will establish the briefing schedule at a later time, and 19 CFR 351.212(b)(1). Where an determines that the following weighted- importer (or customer)-specific ad average dumping margins exist: will notify parties of the schedule in accordance with 19 CFR 351.309. valorem rate is greater than de minimis, Parties who submit case briefs or we will apply the assessment rate to the STEEL WIRE GARMENT HANGERS entered value of the importers’/ FROM THE PEOPLE’S REPUBLIC OF rebuttal briefs in this proceeding are requested to submit with each customers’ entries during the POR. See CHINA argument: (1) A statement of the issue; 19 CFR 351.212(b)(1). (2) a brief summary of the argument; Where we do not have entered values Weighted for all U.S. sales, we calculated a per- average and (3) a table of authorities. See 19 CFR Manufacturer/exporter margin 351.309(c) and (d). unit assessment rate by aggregating the (percent) Pursuant to 19 CFR 351.310(c), antidumping duties due for all U.S. interested parties who wish to request a sales to each importer (or customer) and Shanghai Wells Hanger Co., Ltd. hearing, or to participate if one is dividing this amount by the total and/or Hong Kong Wells Lim- requested, must submit a written quantity sold to that importer (or ited ...... 1.10 customer). See 19 CFR 351.212(b)(1). To Shaoxing Dingli Metal Clothes- request within 30 days of the date of publication of this notice. Requests determine whether the duty assessment horse Co., Ltd...... 12.25 rates are de minimis, in accordance with Shaoxing Metal Companies 34 .... 6.58 should contain: (1) The party’s name, Shaoxing Shunji Metal Clothes- address and telephone number; (2) the the requirement set forth in 19 CFR horse Co. Ltd...... 6.58 number of participants; and (3) a list of 351.106(c)(2), we calculated importer Yiwu Ao-Si Metal Products Co., (or customer)-specific ad valorem ratios Ltd...... 6.58 34 In the this administrative review, Shaoxing based on the estimated entered value. Shangyu Baoxiang Metal Manu- Gangyuan Metal Manufactured Co. Ltd., Shaoxing Where an importer (or customer)- factured Co., Ltd...... 6.58 Tongzhou Metal Manufactured Co. Ltd., and specific ad valorem rate is zero or de Jiaxing Boyi Medical Device Co., Shaoxing Andrew Metal Manufactured Co., Ltd. all minimis, we will instruct CBP to Ltd...... 6.58 reported in their respective separate rate certifications that their affiliations, legal structure, liquidate appropriate entries without and ownership structure have not changed since the regard to antidumping duties. See 19 32 See Steel Wire Garment Hangers from the underlying investigation. Thus, we continue to find CFR 351.106(c)(2). People’s Republic of China: Final Determination of that these three companies comprise a single entity, For the companies receiving a Sales at Less Than Fair Value, 73 FR 47587 (August as determined in the underlying investigation, 14, 2008) and accompanying Issues and Decision where we found that Shaoxing Gangyuan Metal separate rate that were not selected for Memorandum at Comment 9A (‘‘Hangers LTFV’’). Manufactured Co. Ltd., Shaoxing Tongzhou Metal individual review, we will calculate an 33 See Shanghai Wells’ Supplemental Section C Manufactured Co. Ltd., and Shaoxing Andrew assessment rate based on the weight- Questionnaire Response dated May 13, 2010 at 13, Metal Manufactured Co., Ltd. were a single entity average of the publicly-ranged values where Shanghai Wells stated that it reported ‘‘in the pursuant to 19 CFR 351.401(f)(1) and (2). See field REVDOCT the revenue of antidumping duty Hangers LTFV, 73 FR at 47589. reported by the companies selected for that is being part of the invoiced price that 35 The PRC-Wide entity includes the 94 individual review pursuant to section Shanghai Wells charged its customers.’’ companies listed in footnote 16 of this notice. 735(c)(5)(B) of the Act.

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Cash Deposit Requirements DEPARTMENT OF COMMERCE request for an administrative review, and no other party requested a review. The following cash deposit International Trade Administration Therefore, in response to Sun Group’s requirements will be effective upon [C–570–915] withdrawal of its request for review, and publication of the final results of this pursuant to 19 CFR 351.213(d)(1), the administrative review for all shipments Light-Walled Rectangular Pipe and Department hereby rescinds this of the subject merchandise entered, or Tube From the People’s Republic of administrative review. withdrawn from warehouse, for China: Rescission of Countervailing Assessment Instructions consumption on or after the publication Duty Administrative Review date, as provided for by section The Department will instruct U.S. 751(a)(2)(C) of the Act: (1) For the AGENCY: Import Administration, Customs and Border Protection (‘‘CBP’’) exporters listed above, the cash deposit International Trade Administration, to assess countervailing duties on all rate will be established in the final Department of Commerce. appropriate entries. For the Sun Group, results of this review (except, if the rate DATES: Effective Date: November 9, countervailing duties shall be assessed is zero or de minimis, i.e., less than 0.5 2010. at rates equal to the cash deposit or bonding rate of the estimated percent, no cash deposit will be FOR FURTHER INFORMATION CONTACT: required for that company); (2) for Austin Redington or Patricia Tran, AD/ countervailing duties required at the time of entry, or withdrawal from previously investigated or reviewed PRC CVD Operations, Office 1, Import warehouse, for consumption, in and non-PRC exporters not listed above Administration, U.S. Department of accordance with 19 CFR that have separate rates, the cash Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; 351.212(c)(1)(i). The Department deposit rate will continue to be the intends to issue appropriate assessment exporter-specific rate published for the telephone (202) 482–1664 and (202) 482–1503, respectively. instructions directly to CBP 15 days most recent period; (3) for all PRC after publication of this notice. exporters of subject merchandise which SUPPLEMENTARY INFORMATION: Notification Regarding Administrative have not been found to be entitled to a Background separate rate, the cash deposit rate will Protective Order be the PRC-wide rate of 187.25 percent; On August 2, 2010, the U.S. This notice serves as a final reminder and (4) for all non-PRC exporters of Department of Commerce to parties subject to administrative ‘‘ ’’ subject merchandise which have not ( Department ) published a notice of protective order (‘‘APO’’) of their opportunity to request an administrative received their own rate, the cash deposit responsibility concerning the review of the countervailing duty order rate will be the rate applicable to the disposition of proprietary information on light-walled rectangular pipe and PRC exporters that supplied that non- disclosed under APO in accordance tube from the People’s Republic of PRC exporter. These deposit with 19 CFR 351.305(a)(3). Timely China (‘‘PRC’’) for the period of review written notification of the return/ requirements, when imposed, shall January 1, 2009, through December 31, remain in effect until further notice. destruction of APO materials or 2009. See Antidumping or conversion to judicial protective order is Notification to Importers Countervailing Duty Order, Finding, or hereby requested. Failure to comply Suspended Investigation; Opportunity with the regulations and terms of an This notice also serves as a To Request Administrative Review, 75 APO is a sanctionable violation. preliminary reminder to importers of FR 45094 (August 2, 2010). On August This notice is issued and published in their responsibility under 19 CFR 30, 2010, in accordance with 19 CFR accordance with sections 751(a)(1) and 351.402(f)(2) to file a certificate 351.213(b), the Department received a 777(i)(1) of the Tariff Act of 1930, as regarding the reimbursement of timely request from Sun Group Co., Ltd. amended, and 19 CFR 351.213(d)(4). (‘‘Sun Group’’) to conduct an antidumping duties prior to liquidation Dated: November 1, 2010. of the relevant entries during this administrative review of Sun Group. No Susan H. Kuhbach, review period. Failure to comply with other party requested an administrative review. Acting Deputy Assistant Secretary for this requirement could result in the Antidumping and Countervailing Duty Secretary’s presumption that On September 29, 2010, the Department published the notice of Operations. reimbursement of antidumping duties [FR Doc. 2010–28283 Filed 11–8–10; 8:45 am] occurred and the subsequent assessment initiation of this countervailing duty administrative review with respect to BILLING CODE 3510–DS–P of double antidumping duties. Sun Group. See Initiation of This determination is issued and Antidumping and Countervailing Duty published in accordance with sections Administrative Reviews and Requests DEPARTMENT OF COMMERCE 751(a)(1) and 777(i)(1) of the Act and 19 for Revocation in Part, 75 FR 60076, National Oceanic and Atmospheric CFR 351.221(b)(4). 60082 (September 29, 2010). Administration Dated: November 3, 2010. Rescission of Countervailing Duty RIN 0648–XZ23 Susan H. Kuhbach, Administrative Review Acting Deputy Assistant Secretary for Import Pursuant to 19 CFR 351.213(d)(1), the Taking of Threatened or Endangered Administration. Secretary will rescind an administrative Marine Mammals Incidental to [FR Doc. 2010–28287 Filed 11–8–10; 8:45 am] review, in whole or in part, if the party Commercial Fishing Operations BILLING CODE 3510–DS–P who requested the administrative AGENCY: National Marine Fisheries review withdraws the request within 90 Service (NMFS), National Oceanic and days of the date of publication of the Atmospheric Administration (NOAA), notice of initiation of the requested Commerce. administrative review. On October 15, ACTION: Notice; request for comments. 2010, Sun Group timely withdrew its

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SUMMARY: NMFS proposes to issue a Comments may be submitted by e-mail required to report injuries or mortalities permit for a period of three years to to [email protected]. Include of marine mammals incidental to their authorize the incidental, but not in the subject line the following operations for the taking to be intentional, taking of individuals from document identifier: 0648–XZ23 permit. authorized after a NID has been made. six marine mammal stocks listed under E-mail comments with or without NMFS will consider issuing permits at the Endangered Species Act (ESA) by attachments are limited to 5 megabytes. a future date for the taking of the subject groundfish fisheries in the Bering Sea Written comments should be sent to threatened or endangered species by and the Gulf of Alaska. In accordance Kaja Brix, Assistant Regional participants in State-managed fisheries with the Marine Mammal Protection Act Administrator, Protected Resources other than the State-parallel groundfish (MMPA), NMFS has made a preliminary Division, Alaska Region, NMFS, P.O. fisheries. State-parallel groundfish determination that incidental taking Box 21668, Juneau, AK 99802. fisheries are included in this proposed from commercial fishing will have a Comments may be hand-delivered to the permit. The data for considering these negligible impact on the endangered Federal Building, 709 West 9th Street, authorizations were reviewed Central North Pacific (CNP) stock of Room 420A, Juneau, AK; or may be coincident with the preparation of the humpback whales, Western North faxed to (907) 586–7557. proposed 2011 MMPA List of Fisheries Pacific (WNP) stock of humpback All comments received are a part of (LOF) (75 FR 36318, June 25, 2010), the whales, Northeast Pacific (NEP) stock of the public record. All Personal draft 2010 marine mammal stock fin whales, North Pacific stock of sperm Identifying Information (e.g., name, assessment reports (dSAR) (Allen and whales, and Western U.S. stock of address) voluntarily submitted by the Angliss 2010), and other relevant Steller sea lions; and on the threatened commenter may be publicly accessible. sources. Eastern U.S. stock of Steller sea lions. Do not submit Confidential Business MMPA section 101(a)(5)(E) requires NMFS has insufficient funds to Information or otherwise sensitive or NMFS to authorize the incidental taking complete TRPs for the two stocks of protected information. Comments of individuals from marine mammal humpback whales, for the North Pacific received after the 15-day comment species or stocks listed as threatened or stock of sperm whales, and for the period may not be considered or made endangered under the ESA in the course Western U.S. stock of Steller sea lions. part of the record. of commercial fishing operations, if NMFS determines that: (1) Incidental Take Reduction Plans (TRPs) are not FOR FURTHER INFORMATION CONTACT: required for the NEP stock of fin whales Dana J. Seagars, Protected Resources mortality and serious injury will have a negligible impact on the affected species or the Eastern U.S. stock of Steller sea Division AKR, (907) 271–5005, or Tom or stock; (2) a recovery plan has been lions because mortality and serious Eagle, Office of Protected Resources, developed or is being developed for injury of these stocks incidental to (301) 713–2322, ext. 105. such species or stock under the ESA; commercial fishing operations are at SUPPLEMENTARY INFORMATION: NMFS is insignificant levels approaching a zero and (3) where required under section now considering the issuance of a 3-year 118 of the MMPA, a monitoring program mortality and serious injury rate. permit under MMPA section Recovery plans are being prepared or has been established, vessels engaged in 101(a)(5)(E) (16 U.S.C. 1371(a)(5)(E)) to such fisheries are registered in have been completed for these participants registered in certain Alaska- threatened or endangered species. A accordance with MMPA section 118, based groundfish fisheries to and a TRP has been developed or is monitoring plan is in place, and vessels incidentally take individuals from five have been registered under the MMPA being developed for such species or marine mammal stocks listed as stock. for the fisheries included in this endangered under the ESA: The CNP proposed permit. Accordingly, NMFS stock of humpback whales, the WNP Determining Negligible Impact in proposes to issue the required permits stock of humpback whales, the NEP Fisheries to participants in the Alaska-based stock of fin whales, the North Pacific Prior to issuing a permit to take ESA- groundfish fisheries. NMFS solicits stock of sperm whales, and the Western listed marine mammals incidental to public comments on the negligible U.S. stock of Steller sea lions, and from commercial fishing, NMFS must impact determination and on the one stock, the Eastern U.S. stock of determine if that mortality and serious proposal to issue this permit. Steller sea lions, listed as threatened. injury incidental to commercial DATES: Comments must be received by Taking of individuals from these fisheries will have a negligible impact November 24, 2010. threatened or endangered stocks of on the affected species or stocks of ADDRESSES: A draft Negligible Impact marine mammals would be authorized marine mammals. NMFS satisfied this Determination (NID) for five of the incidental to operation of the following requirement through completion of a affected stocks is available on the Federal and State-parallel Category II NID. NMFS clarifies that incidental Internet at the following address: groundfish fisheries: the AK Bering Sea/ mortality and serious injury include http://www.alaskafisheries.noaa.gov/ Aleutian Islands flatfish trawl, AK only direct mortality and serious injury, index/analyses/analyses.asp. The final Bering Sea/Aleutian Island pollock such as from entanglement or hooked in NID for the sixth stock, CNP humpback trawl, AK Bering Sea sablefish pot, and fishing gear. Indirect effects, such as the whales, is available on the Internet at AK Bering Sea/Aleutian Islands Pacific effects of removing prey from habitat, the following address: http:// cod longline fisheries. Because other are not included in this analysis. An www.fpir.noaa.gov/PRD/ stocks of threatened or endangered opinion prepared under ESA section 7 prd_humpback.html. Recovery plans for marine mammals are not taken considers direct and indirect effects of these species are available on the incidental to groundfish fisheries in Federal actions and, thus, contains a Internet at the following address: http:// Alaska, no other species or stocks are broader scope of analysis than is www.nmfs.noaa.gov/pr/recovery/ considered for this proposed permit. required by MMPA section 101(a)(5)(E). plans.htm#mammals. There are no Category I fisheries Although the MMPA does not define Address all comments to Kaja Brix, designated in Alaska. Participants in ‘‘negligible impact’’, NMFS has issued Assistant Regional Administrator, Category III fisheries are not required to regulations providing a qualitative Protected Resources Division, Alaska obtain incidental take permits under definition of negligible impact (50 CFR Region, NMFS, Attn: Ellen Sebastian. MMPA section 101(a)(5)(E) but are 216.3) and, through scientific analysis,

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peer review, and public notice, (5) If total fisheries-related serious rock sole, flathead sole, and other developed a quantified approach and a injuries and mortalities are greater than flatfish fisheries occur on the process to make such determinations. PBR, permits may not be issued. continental shelf in the eastern Bering The development of the approach and The NID Criterion (1) is the starting Sea in water shallower than 200 m. process was outlined in detail in the point for analyses. If this criterion is Some effort follows the contour of the current draft NID made available satisfied, the analysis would be shelf to the northwest and extends as far through this notice and was included in concluded. The remaining criteria north as Zhemchug Canyon. Very few previous notices for other permits to describe alternatives under certain rock sole, flathead sole, and other take threatened or endangered marine conditions, such as fishery mortality flatfish are taken in the Aleutian Islands mammals incidental to commercial below the negligible threshold but other due to the limited shallow water areas fishing (e.g., proposed for CNP human-caused mortality above the present. humpback whales in 75 FR 8305, threshold, or fishery and other human- caused mortality between the negligible Bering Sea/Aleutian Islands Pollock February 24, 2010 and final in 75 FR Trawl 29984, May 28, 2010). threshold and PBR for a stock that is increasing or stable. If NID Criterion (1) In 2009, 117 vessels targeted pollock NMFS has adopted the following is not satisfied, NMFS may use one of in the BSAI management area. The criteria for making a negligible impact the other criteria, as appropriate. pattern of the modern pollock fishery in determination relevant to incidental the BSAI is to focus on a winter, take permits (64 FR 28800, May 27, Description of the Fisheries spawning-aggregation fishery. The A 1999): The following are the Federally- season fishery is January 20 through (1) The threshold for initial authorized and State-parallel groundfish June 10. Fishing in this season lasts determination will remain at 10 percent fisheries classified as Category II in the about 8–10 weeks depending on the of the Potential Biological Removal level 2010 LOF which are known to seriously catch rates. The B season is June 10 (PBR). If total human-related serious injure or kill ESA-listed marine through November 1. Fishing in the B injuries and mortalities are less than 10 mammals incidental to commercial season is typically September through percent of PBR, all fisheries may be fishing operations. Detailed descriptions October and has been conducted to a permitted. of these fisheries can be found in the greater extent west of 170° west long. (2) If total human-related serious June 2004 Alaska Groundfish Fisheries compared to the A season fishing injuries and mortalities are greater than Final Supplemental Programmatic location in the southern Bering Sea. PBR, and fisheries-related mortality is Environmental Impact Statement Directed fishing is closed for pollock in less than 10 percent of PBR, individual (http://alaskafisheries.noaa.gov/ all areas from November 1 to January 20. fisheries may be permitted if sustainablefisheries/seis/) and in NMFS Fishing is also closed around designated management measures are being taken (2010), a draft Biological Opinion rookeries and haulouts out to 20 nm and to address non-fisheries-related serious (BiOp) on the groundfish fishery within Steller sea lion foraging areas in injuries and mortalities. When fisheries- management plan the fisheries the BSAI. The Bering Sea pollock total related serious injury and mortality are addressed in the draft BiOp henceforth allowable catch (TAC) is allocated 40 less than 10 percent of the total, the are collectively referred to as the percent to the A season and 60 percent appropriate management action is to ‘‘Alaska groundfish fisheries.’’ Certain to the B season. No more than 28 address components that account for the aspects of the fisheries may be altered percent of the annual directed fishing major portion of the total. due to reasonable and prudent allowance for pollock can be taken alternatives included in the BiOP; inside the Sea Lion Conservation Area (3) If total fisheries-related serious however, these changes in fishing injuries and mortalities are greater than in the southern Bering Sea before April operations are not expected to result in 1. 10 percent of PBR and less than PBR increased levels of mortality and serious and the population is stable or injury of marine mammals, including Bering Sea/Aleutian Islands Pacific Cod increasing, fisheries may be permitted threatened and endangered species. Longline subject to individual review and In 2009, 55 vessels targeted Pacific Bering Sea/Aleutian Islands Flatfish certainty of data. Although the PBR cod using hook-and-line gear. Hook- Trawl level has been set up as a conservative and-line harvested Pacific cod are standard that will allow recovery of a In 2008 the Amendment 80 program mostly taken along the slope of the stock, there are reasons for individually allocated most of the Bering Sea and continental shelf break and along the reviewing fisheries if serious injuries Aleutian Islands (BSAI) rock sole, Aleutian Islands. Harvest is seasonally and mortalities are above the threshold flathead sole, and yellowfin sole apportioned to A and B seasons for level. First, increases in permitted allocations to the trawl catcher vessels greater than 60 feet length serious injuries and mortalities should processor sectors using bottom trawl overall. The A season is January 1 be carefully considered. Second, as gear. Other vessel categories and gear through June 10 and the B season is serious injuries and mortalities types catch some rock sole, flathead June 10 through December 31. The approach the PBR level, uncertainties in sole, and other flatfish incidentally in annual TAC is apportioned 60 percent elements such as population size, other directed fisheries. In 2009, 30 to the A season and 40 percent to the reproductive rates, and fisheries-related vessels targeted flatfish in the BSAI. B season. mortalities become more important. Rock sole is generally targeted during (4) If the population abundance of a the roe season. Then these vessels shift Bering Sea Sablefish Pot stock is declining, the threshold level of to several different targets, notably Atka Sablefish are harvested in relatively 10 percent of PBR will continue to be mackerel, arrowtooth flounder, flathead deep water along the continental slope used. If a population is declining sole, yellowfin sole, Pacific cod, and (100–1,000 m) and along the Aleutian despite limitations on human-related Pacific ocean perch. Vessels also can go Islands. From 1996 to 2007, directed serious injuries and mortalities below into the Gulf of Alaska to fish for fisheries for sablefish have only been the PBR level, a more conservative arrowtooth, Pacific cod, flathead sole, open to vessels using hook-and-line and criterion is warranted. and rex sole. In the BSAI, most of the pot gear in the BSAI. In 1995, sablefish

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(as well as Pacific halibut) became a Humpback Whale, Western North and serious injury would be considered closed fishery for fixed gear based on Pacific Stock negligible if such mortality and serious historical participation. An individual NMFS has evaluated the best injury, in combination with other fishing quota (IFQ) program was available information in assessing the human sources of mortality, do not implemented, which assigns quota interactions between ESA-listed WNP exceed PBR, subject to individual shares on an annual basis to authorized humpback whales and Alaska fisheries review and certainty of data. The NID fishermen (50 CFR 679(d)). The directed (including observer data), other fisheries Criterion (3) is satisfied in determining sablefish fishery is open only to IFQ (using primarily stranding and sightings that mortality and serious injuries of the shareholders who use fixed gear (hook- data), and other sources of human- WNP humpback stock incidental to commercial fishing would have a and-line or pot gear) and starting in caused serious injury and mortality, to negligible impact on the WNP 2008 trawl catcher processors in the determine whether the incidental humpback whale stock. This Amendment 80 cooperative. In 2009, 10 mortality and serious injury from all commercial fisheries will have a determination is supported by review of pot catcher vessels were active in this mortality and serious injury incidental fishery. negligible impact on the stock. Allen and Angliss (2010) use an annual rate of to U.S. commercial fishing, stable or Negligible Impact Determinations increase of 7 percent for this stock and increasing growth rate of the stock, note this rate is considered conservative limited potential for increases in serious Humpback Whale, Central North Pacific injury and mortality due to the relevant for the stock. One humpback whale Stock fisheries, the fact that total human- mortality, reported in the Bering Sea caused mortality and serious injury is sablefish pot fishery during the 2002– A NID for the CNP humpback whale below the estimated PBR and is not 2006 period, occurred in an area of was issued recently (75 FR 29984, May expected to delay recovery of the stock overlap between the WNP and CNP 28, 2010). That analysis included by more than 10 percent more than humpback stocks. Because of the incidental taking by commercial recovery time if these removals did not uncertainty of stock assignment of that fisheries in both Alaska and Hawaii occur. Additional information is take, NMFS evaluated the potential waters. At the time, permits were issued available in the draft NID. to Hawaii-based fisheries but not to impacts of this mortality on each of the possible source stocks. If this mortality Fin Whale, Northeast Pacific Stock Alaska fisheries. NMFS has reviewed removed an individual from the WNP new information available since it NMFS evaluated the best available stock, the mean annual mortality and issued the NID and confirms the NID for information in assessing the interactions serious injury rate for this stock CNP humpback whales. between ESA-listed NEP fin whales and attributable to commercial fisheries is Alaska fisheries (including observer The current CNP humpback NID 0.2 whales per year (Table 3 in the data), other fisheries (using primarily estimated mortality and serious injury accompanying NID). NMFS stranding stranding and sightings data), and other of CNP humpback whales incidental to data contain no reports of fisheries- sources of human-caused serious injury commercial fishing operations in HI and related WNP humpback whale and mortality, in order to determine AK totaled 5.4 whales per year, which strandings or entanglements; no whether the incidental mortality and is 26.5 percent of the stock’s PBR level. mortalities or serious injuries have been serious injury from all commercial NMFS concluded that incidental recorded due to ship strikes. Thus, the fisheries will have a negligible impact mortality and serious injury at this total estimated annual total human-caused on the stock. Allen and Angliss (2010) rate will have a negligible impact on injury rate for the WNP stock of reported an annual rate of increase of CNP humpback whales. The time frame humpback whales in the U.S. Exclusive 4.8 percent and a PBR of 11.4 for this for the data used in that analysis was Economic Zone (EEZ) for 2002–2006 is stock. Mortality of one NEP fin whale the five-year period from 2003 through 0.2 whales per year. The PBR for this was reported in the Bering Sea/Aleutian 2007, pending availability of recent stock is 2.0 animals per year. NMFS Islands pollock trawl fishery during the data. More recent information provided regulations to classify fisheries in the 2002–2006 period, and the mean annual in the dSAR (Allen and Angliss, 2010) annual LOF state that where total mortality and serious injury rate for the CNP humpback whale now serious injury and mortality across all incidental to commercial fisheries is estimates the PBR = 61.2 animals based fisheries are equal to or less than 10 0.23 whales per year (Table 10 in the on updated population assessment percent of a stock’s PBR, all fisheries accompanying NID). NMFS stranding information and an increase of the interacting with this stock would be data contain no reports of fisheries- placed in Category III. NMFS intends to Recovery Factor (RF) used to calculate related NEP fin whale strandings or propose changing fishery to Category III entanglements in the EEZ offshore of PBR to 0.3. The dSAR provides a for the 2012 LOF, based on the current Alaska. Based on the one mortality revised estimate for mortality and level of total serious injury and reported and investigated during 2002– serious injury of CNP humpback whales mortality from this stock (equal to 10 2006, the minimum mean annual incidental to commercial fishing percent of the stock’s PBR) and no takes mortality/serious injury from ship operations in HI and AK at 3.8 whales of other marine mammals that would strikes is 0.20 fin whales per year in per year, which is 6.2 percent of the place it in Category II. Alaska. The estimated minimum annual stock’s PBR level. Accordingly, NMFS Accordingly, total human-caused total human-caused mortality and reiterates the conclusion reached by the mortality and serious injury are below serious injury rate for the NEP stock of CNP humpback NID: Incidental the PBR for this stock. Because, as fin whales in the U.S. EEZ for 2002– mortality and serious injury due to described in the accompanying NID, the 2006 is 0.43 whales per year. commercial fisheries will have a stock is stable or increasing and annual Accordingly, total human-caused negligible impact on CNP humpback human-caused mortality and serious mortality and serious injury is below 10 whales based on the best scientific injury are equal to 10 percent of PBR, percent of PBR (1.14) for this stock, and information for the 5-year period from NID Criterion (3) is the appropriate evaluation by NID Criterion (1) applies. 2003 through 2007, with inclusion, criterion for consideration. Under NID Because all total human-related serious where available, of more recent data. Criterion (3) fishery-related mortality injuries and mortalities are less than 0.1

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PBR, NMFS has determined that Pacific Ocean. Accordingly, the than this stock’s PBR (254 animals). The mortality and serious injury incidental mortality and serious injury of North mean annual Alaska native subsistence to commercial fisheries will have a Pacific sperm whales incidental to take from this stock is estimated to be negligible impact on the NEP fin whale commercial fishing would not cause 197 Western U.S. stock Steller sea lions stock. Additional information is more than a 10 percent delay in the time per year. NMFS calculates there is an available in the accompanying draft for the stock to recover. Therefore, average of 0.6 Steller sea lion mortalities NID. NMFS has determined that mortality per year due to permitted research and serious injury incidental to activities. Based on available data, the Sperm Whale, North Pacific Stock commercial fishing will have a estimated total human-caused mortality NMFS has not conducted a complete negligible impact on the North Pacific and serious injury (223.8) are less than survey for sperm whales in waters off stock of sperm whales. the PBR (254) for this stock. Data Alaska, and the abundance of the stock available for estimating human caused Steller Sea Lion, Western U.S. Stock is unknown; therefore, a PBR for this mortality and serious injury in stock is not available. Allen and Angliss NMFS has evaluated the best commercial fisheries for this permit are (2010) noted that although key elements available information to assess largely based on extensive and ongoing in understanding the biology and status population status and trend and to fisheries observer programs designed to of the population are currently evaluate the effect of interactions address those fisheries known or unavailable, current levels of human- between Western U.S. stock of Steller believed most likely to interact with this caused mortality and serious injury sea lions and commercial fisheries in stock. In some cases mortality data seem minimal for this stock. Criterion Alaska (including observer data), other include opportunistic reports (e.g., (1) in the 1999 guidelines indicates that fisheries (based on the scientific strandings, subsistence harvest) or old total human-caused mortality and literature), and other sources of human- observations (e.g., observation of the serious injury of the stock that is less caused serious injury and mortality PWS drift gillnet salmon fishery in the than 10 percent of the stock’s PBR (surveys, anecdotal reports, and early 1990s). would have a negligible impact on the stranding and sightings data), to Because fishery-related mortality and affected stock. Allen and Angliss (2010) determine whether the incidental serious injury slightly exceed 10 percent estimate that the Gulf of Alaska mortality and serious injury from all of PBR, the stock is stable or increasing, groundfish fishery takes (by serious commercial fisheries will have a and total annual human-caused injury and mortality) an annual mean of negligible impact on the stock. Recent mortality and serious injury are less 3.5 sperm whales. No other mortality or exhaustive reviews of population status than PBR, NID Criterion (3) is the serious injury of sperm whales is and trend have been completed by appropriate criterion for consideration. reported or observed incidental to NMFS as part of the draft BiOp on the The NID Criterion 3 is satisfied in commercial fisheries in Alaska. No Alaska groundfish fisheries (NMFS determining that mortality and serious other sources of human-caused 2010) and the stock assessment reports injuries of Western U.S. stock Steller sea mortality and serious injury of sperm (SARs; Allen and Angliss 2010). lions incidental to commercial fishing whales are reported in Alaska. The draft Although the stock continues to will have a negligible impact on the 2010 Pacific SAR for sperm whales in decrease in the Western and Central stock because population growth is California, Oregon and Washington Aleutians, it has, since 2004, been stable or increasing, the fishery-related reports an annual rate of 0.2 human- increasing in the Eastern Aleutians. The mortalities and serious injuries (26.2) caused deaths of sperm whales per year. recent trend in the Gulf of Alaska has are less than PBR (254). This Therefore, human-cause mortality and been one of short-term fluctuation in the determination is supported by review of serious injury of sperm whales in the central and western portions with a mortality and serious injury incidental North Pacific stock may be estimated as possible increase in the eastern portion to U.S. commercial fishing and other 3.7. likely related to a seasonal migration of human related mortality and serious The formula for calculating PBR of individuals from the Eastern U.S stock injury, a stable or increasing population North Pacific sperm whales can be re- of Steller sea lions. The draft BiOp trend, limited potential for increases in arranged to estimate the minimum indicates that the overall population of serious injury and mortality due to the number of sperm whales that would be the Western U.S. stock of Steller sea relevant fisheries, the fact that total required for 3.7 to be 10 percent or less lions is stable and may be increasing at human-caused mortality and serious of the stock’s PBR. Rearranging the an annual rate of 1.5 percent (not injury is below the estimated PBR and formula and solving for the minimum statistically significant) (NMFS 2010). are not expected to delay recovery of the abundance estimate results in a The estimated minimum mean stock by more than 10 percent more minimum abundance of 18,500 sperm mortality and serious injury rate than recovery time if these removals did whales. Citing multiple sources, the incidental to commercial fisheries over not occur. Additional information is draft BiOp (NMFS, 2010) states that the 2002–2006 period is 26.2 Western available in the draft NID. practical working estimates of sperm U.S. stock Steller sea lions per year whale abundance for the entire North (Table 5 in the accompanying NID); 0.25 Steller Sea Lion, Eastern U.S. Stock Pacific range from 100,000 to 200,000 for the Bering Sea/Aleutian Islands Atka NMFS evaluated the best available and that the number of sperm whales in mackerel trawl, 3.01 for the Bering Sea/ information to assess population status the eastern North Pacific has been Aleutian Islands flatfish trawl, 0.85 for and trend and in evaluating the effect of estimated to be 39,200. the Bering Sea/Aleutian Islands Pacific interactions between the ESA-listed The best available information (as cod trawl, 3.83 for the Bering Sea/ Eastern U.S. stock of Steller sea lions reported in the draft BiOp and Allen Aleutian Islands pollock trawl, 1.33 for and commercial fisheries in Alaska and Angliss, 2010) indicates that there the Gulf of Alaska pollock trawl, 1.98 (including observer data), other fisheries are sufficient sperm whales in the for the Bering Sea/Aleutian Islands (based on the scientific literature), and eastern North Pacific Ocean so that Pacific cod longline and 14.5 in the other sources of human-caused serious human-caused mortality and serious Prince William Sound salmon drift injury and mortality (surveys, reports, injury are less than 10 percent of a PBR gillnet. The total is greater than 10 and stranding and sightings data), to for sperm whales in the eastern North percent of PBR (25.4 animals) and less determine whether the incidental

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mortality and serious injury from all NMFS concludes that the incidental registered in accordance with MMPA commercial fisheries will have a mortality and serious injury from section 118. negligible impact on the stock. Recent commercial fishing will have a Monitoring Program reviews of population status and trends negligible impact on the CNP stock of have been completed by NMFS as part humpback whales, the WNP stock of As noted above, Federally-permitted of the (draft) BiOp on the Alaska humpback whales, the NEP stock of fin commercial fisheries in Alaska have groundfish fisheries (NMFS, 2010) and whales, the North Pacific stock of sperm been observed since the early 1990s. the SARs (Allen and Angliss, 2010). whales, the Western U.S. stock of Steller Levels of observer coverage vary over These reviews indicate the stock is sea lions, and the Eastern U.S. stock of years but are adequate to produce increasing at minimum of 3.1 per cent Steller sea lions. The impacts on the reliable estimates of mortality and per year. The minimum estimated human environment of continuing and serious injury of listed species (e.g., mortality and serious injury rate modifying the Alaska groundfish during the 2002–2006 period, coverage incidental to commercial fisheries (both fisheries, including the taking of ranged from 58.4–68.3 percent in the U.S. and Canadian) is 25.6 Eastern U.S. threatened and endangered species of Bering Sea/Aleutian Islands flatfish stock Steller sea lions per year, (Tables marine mammals, were analyzed in trawl, 73.0–82.2 percent in the Bering 8 and 9 in the accompanying NID); 0.8 Alaska Groundfish Fisheries Final Sea/Aleutian Islands pollock trawl, for the WA/OR/CA groundfish trawl and Supplemental Programmatic 23.8- 29.6 percent for the Bering Sea/ 24.8 in the Alaska salmon troll fishery. Environmental Impact Statement (June Aleutian Islands Pacific cod longline, The total estimated annual mortality 2004; http://www.fakr.noaa.gov/ and 21.7- 40.6 percent in the Alaska due to commercial fishing is less than sustainablefisheries/seis/), the Bering Sea sablefish pot fishery). 10 percent of this stock’s PBR (2,378 Biological Assessment of the Alaska Accordingly, as required by MMPA animals). Groundfish Fisheries and NMFS section 118, a monitoring program is in The mean annual Alaska native Managed Endangered Species Act Listed place. subsistence take from this stock is Marine Mammals and Sea Turtles Take Reduction Plans (TRP) estimated to be 11.9 Steller sea lions per (NMFS 2006; http:// year. NMFS calculates there is an stellersealions.noaa.gov/ Subject to available funding, MMPA average of 0.8 mortalities per year due sustainablefisheries/sslmc/ section 118 requires a TRP in cases to illegal shooting of Steller sea lions agency_documents/BA4–6–06.pdf) where a strategic stock interacts with a from the Eastern U.S. stock, an average pursuant to the National Environmental Category I or II fishery. The stocks of 0.6 ‘‘other non-fishery human-related’’ Policy Act (NEPA) (42 U.S.C. 4231 et considered for this permit are mortalities in Oregon and Washington, seq.), and in the draft BiOp prepared for designated as strategic stocks under the and an average of 1.8 Eastern U.S. stock the Alaska groundfish fisheries (NMFS, MMPA because they are listed as of Steller sea lion mortalities per year 2010) pursuant to the ESA. Issuing the threatened or endangered under the due to permitted research activities. proposed permit would have no ESA. These strategic stocks interact with Based on available data, the estimated additional impact to the human the Category II fisheries described total human-caused mortality and environment or effects on threatened or above, and no TRPs have been serious injury (40.7) are less than 10 endangered species beyond those developed for them. The short- and percent of the stock’s PBR (237.8). Data analyzed in these documents. NMFS long-term goals of a TRP are to reduce available for estimating human-caused now reviews the remaining mortality and serious injury of marine mortality and serious injury in requirements to issue a permit to take mammals incidental to commercial commercial fisheries are largely based the subject listed species incidental to fishing to levels below PBR and to a on both historic and ongoing fisheries the Alaska groundfish fisheries. zero mortality rate goal (indicated by observer programs designed to address meeting the threshold for placement in those fisheries known or believed most Recovery Plans the annual LOF Category III), likely to interact with this stock. NMFS Recovery Plans for humpback whales respectively. However, the obligations is aware that, in some cases, mortality and Steller sea lions of the subject listed to develop and implement a TRP are data are based on opportunistic reports species have been completed. Recovery subject to the availability of funding. (e.g. strandings, subsistence harvest) or plans for fin and sperm whales have MMPA section 118(f)(3) (16 U.S.C. on observations where it is impossible been drafted and are being completed. 1387(f)(3)) contains specific priorities to determine with certainty if the These draft and final recovery plans are for developing TRPs. mortality and serious injury occurred as available on the Internet (see NMFS has insufficient funding a result of the recreational or ADDRESSES). Accordingly, the available to simultaneously develop and commercial parts of the fishery due to requirement to have recovery plans in implement TRPs for all stocks that the similarity of the gear used in these place or being developed is satisfied. interact with Category I or Category II fisheries. Most recently in March 2009, southeast Alaska salmon troll fisheries. Vessel Registration Because total human-caused mortality NMFS considered multiple quantitative and serious injury is below 10 percent MMPA section 118(c)(5)(A) provides and qualitative factors to identify its of PBR for this stock, NID Criterion 1 is that registration of vessels in fisheries priorities for establishing take reduction satisfied. NMFS has determined that the should, after appropriate consultations, teams (TRTs) and collecting data. As annual mortality and serious injury be integrated and coordinated to the provided in MMPA section 118(f)(6)(A) incidental to commercial fisheries will maximum extent feasible with existing and (f)(7), NMFS used the most recent have a negligible impact on the Eastern fisher licenses, registrations, and related SARs and LOF as the basis to determine U.S. stock of Steller sea lions. programs. Participants in the Alaska its priorities for establishing TRTs and Additional information is available in groundfish fisheries are required to hold developing TRPs. Through this process, the accompanying draft NID. a permit under 50 CFR 665.21. The NMFS evaluated the WNP and CNP MMPA registration program has been stocks of humpback whale, the North Conclusions for Proposed Permit integrated in this permitting system for Pacific stock of sperm whales, and the Based on the above assessment and as the Alaska-based groundfish fisheries. Western U.S. stock of Steller sea lions described in the accompanying NID, Accordingly, vessels in the fisheries are as ‘‘low’’ priorities for establishing TRTs,

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based on population trends of each Management Plan for Groundfish of the 12 p.m. on December 6, 2010, will stock and mortality and serious injury Gulf of Alaska, and the State of Alaska consist of discussions of law levels incidental to commercial fisheries Parallel Groundfish Fisheries. NMFS, enforcement investigations into that are below the stocks’ PBRs. Alaska Region, Juneau, AK. (http:// allegations of criminal activity, new and Accordingly, given these factors and stellersealions.noaa.gov/ pending administrative/minor NMFS’ prioritization process, TRPs will protectedresources/stellers/esa/biop/ disciplinary infractions and nonjudicial be deferred under section 118 as other draft/0810.htm.) punishments involving the Midshipmen stocks have a higher priority for any Dated: November 4, 2010. attending the Naval Academy to include available funding for establishing new Helen M. Golde, but not limited to individual honor/ TRPs. conduct violations within the Brigade, Mortality and serious injury of Steller Deputy Director, Office of Protected Resources, National Marine Fisheries Service. and personnel issues. The discussion of sea lions, Eastern U.S. stock, and NEP such information cannot be adequately [FR Doc. 2010–28280 Filed 11–8–10; 8:45 am] fin whales incidental to commercial segregated from other topics, which fisheries are at insignificant levels, BILLING CODE 3510–22–P precludes opening the executive session approaching a zero mortality and of this meeting to the public. serious injury rate (Allen and Angliss, Accordingly, the Secretary of the Navy 2010). MMPA section 118(b)(2) states DEPARTMENT OF DEFENSE has determined in writing that the that fisheries maintaining such Department of the Navy meeting shall be partially closed to the mortality and serious injury levels are public because the discussions during not required to further reduce their Meeting of the U.S. Naval Academy the executive session from 11 a.m. to 12 mortality and serious injury rates. Board of Visitors p.m. will be concerned with matters Because the goals of TRPs are to reduce coming under sections 552b(c) (5), (6), mortality and serious injury of marine AGENCY: Department of the Navy, DoD. and (7) of title 5, United States Code. mammals incidental to commercial ACTION: Notice of partially closed Dated: November 2, 2010. fishing operations, no TRPs are required meeting. for either of these stocks. D.J. Werner, As noted in the summary above, all of SUMMARY: The U.S. Naval Academy Lieutenant Commander, Office of the Judge the requirements to issue a permit to the Board of Visitors will meet to make such Advocate General, U.S. Navy, Federal following Federally-authorized and inquiry, as the Board shall deem Register Liaison Officer. State-parallel Category II groundfish necessary, into the state of morale and [FR Doc. 2010–28270 Filed 11–8–10; 8:45 am] fisheries have been satisfied: the AK discipline, the curriculum, instruction, BILLING CODE 3810–FF–P Bering Sea/Aleutian Islands flatfish physical equipment, fiscal affairs, and trawl, AK Bering Sea/Aleutian Islands academic methods of the Naval pollock trawl, AK Bering Sea sablefish Academy. The executive session of this DEPARTMENT OF DEFENSE pot, and AK Bering Sea/Aleutian Islands meeting from 11 a.m. to 12 p.m. on Pacific cod longline fisheries. December 6, 2010, will include Department of the Navy Accordingly, NMFS proposes to issue a discussions of disciplinary matters, law Meeting of the Ocean Research and permit to participants in these Category enforcement investigations into Resources Advisory Panel II fisheries for the taking of CNP allegations of criminal activity, and humpback whales, WNP humpback personnel issues at the Naval Academy, AGENCY: Department of the Navy, DoD. whales, NEP fin whales, North Pacific the disclosure of which would ACTION: Notice of Open Meeting. sperm whales, Steller sea lions (Western constitute a clearly unwarranted U.S. stock), and the Steller sea lions invasion of personal privacy. For this SUMMARY: The Ocean Research and (Eastern U.S. stock) incidental to the reason, the executive session of this Resources Advisory Panel will hold a fisheries’ operations. As noted under meeting will be closed to the public. regularly scheduled meeting. The MMPA section 101(a)(5)(E)(ii), no DATES: The open session of the meeting meeting will be open to the public. permit is required for vessels in will be held on December 6th, 2010, DATES: The meeting will be held on Category III fishery. For incidental from 8 a.m. to 11 a.m. The closed Wednesday, December 8, 2010, from taking of marine mammals to be session of this meeting will be the 8:30 a.m. to 5:30 p.m. and Thursday, authorized in Category III fisheries, any executive session held from 11 a.m. to December 9, 2010, from 8:30 a.m. to 2 injuries or mortalities must be reported 12 p.m. p.m. Members of the public should to NMFS. NMFS solicits public ADDRESSES: The meeting will be held in submit their comments in advance of comments on the proposed permit and the Bo Coppedge Room of Alumni Hall, the meeting to the meeting point of the preliminary determinations U.S. Naval Academy, Annapolis, contact. supporting the permit. Maryland. The meeting will be ADDRESSES: The meeting will be held at References handicap accessible. the Consortium for Ocean Leadership, Allen, B.M., and R.P. Angliss (eds.). FOR FURTHER INFORMATION CONTACT: 1201 New York Avenue, NW., 4th Floor, 2010. (Draft) Alaska Marine Mammal Lieutenant Commander David S. Washington, DC 20005. Stock Assessments, 2010. NMFS, Forman, USN, Executive Secretary to FOR FURTHER INFORMATION CONTACT: Dr. National Marine Mammal Laboratory, the Board of Visitors, Office of the Charles L. Vincent, Office of Naval Seattle WA. Superintendent, U.S. Naval Academy, Research, 875 North Randolph Street, NMFS. 2010. Draft Biological Opinion Annapolis, MD 21402–5000, 410–293– Suite 1425, Arlington, VA 22203–1995, for Authorization of Groundfish 1503. telephone 703–696–4118. Fisheries under the Fishery SUPPLEMENTARY INFORMATION: This SUPPLEMENTARY INFORMATION: This Management Plan for Groundfish of the notice of meeting is provided per the notice of open meeting is provided in Bering Sea and Aleutian Island Federal Advisory Committee Act, as accordance with the Federal Advisory Management Area, Authorization of amended (5 U.S.C. App.). The executive Committee Act (5 U.S.C. App. 2). The Groundfish Fisheries under the Fishery session of the meeting from 11 a.m. to meeting will include discussions on

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ocean research, resource management, electronic, mechanical, or other DEPARTMENT OF EDUCATION and other current issues in the ocean technological collection techniques or science and management communities. other forms of information technology. National Advisory Committee on Institutional Quality and Integrity Dated: November 2, 2010. Dated: November 3, 2010. (NACIQI) Meeting D.J. Werner, Darrin A. King, Lieutenant Commander, Office of the Judge Director, Information Collection Clearance AGENCY: National Advisory Committee Advocate General, U.S. Navy, Federal Division, Regulatory Information on Institutional Quality and Integrity, Register Liaison Officer. Management Services, Office of Management. Office of Postsecondary Education, [FR Doc. 2010–28217 Filed 11–8–10; 8:45 am] Office of Postsecondary Education Department of Education. BILLING CODE 3810–FF–P ACTION: Notice of December 1–3, 2010 Type of Review: Extension. Title of Collection: Targeted Teacher meeting of the National Advisory Shortage Areas. Committee on Institutional Quality and DEPARTMENT OF EDUCATION OMB Control Number: 1840–0595. Integrity (NACIQI); changes to the Agency Form Number(s): N/A. proposed agenda for the meeting; and Notice of Submission for OMB Review Frequency of Responses: Annually. information related to members of the AGENCY: Department of Education. Affected Public: State, Local, or Tribal public making third-party oral Government, State Educational comments at the meeting. ACTION: Comment Request. Agencies or Local Educational Agencies. SUMMARY: This notice sets forth changes SUMMARY: The Director, Information Total Estimated Number of Annual Responses: 57. to the proposed December 1–3, 2010 Collection Clearance Division, NACIQI meeting agenda that was Regulatory Information Management Total Estimated Annual Burden Hours: 4,560. published in the August 23, 2010 Services, Office of Management invites Federal Register (75 FR 21280); a comments on the submission for OMB Abstract: This request is for approval of record-keeping and reporting complete listing of the proposed agenda review as required by the Paperwork requirements that are contained in the items for the December 1–3, 2010 Reduction Act of 1995 (Pub. L. 104–13). Federal Family Education Loan NACIQI meeting, as revised; and DATES: Interested persons are invited to Programs regulations which address the information related to members of the submit comments on or before targeted teacher deferment provision of public making oral comments at the December 9, 2010. the Higher Education Act of 1965, as meeting. The notice of this meeting is ADDRESSES: Written comments should amended. The information collected is required under section 10(a)(2) of the be addressed to the Office of necessary for a State to support its Federal Advisory Committee Act Information and Regulatory Affairs, annual request for designation of (FACA) and section 114(d)(1)(B) of the Attention: Education Desk Officer, teacher shortage areas within the State. Higher Education Act (HEA). Office of Management and Budget, 725 The collection of certification ADDRESSES: U.S. Department of 17th Street, NW., Room 10222, New documentation by the borrower/scholar/ Education, Office of Postsecondary Executive Office Building, Washington, grantee is necessary to support his/her Education, 1990 K Street, NW., Room DC 20503, be faxed to (202) 395–5806 or request for deferment/reduction in 8060, Washington, DC 20006. e-mailed to teaching obligation or cancellation of _ SUPPLEMENTARY INFORMATION: oira [email protected] with a their loan debt. Meeting Date and Place: The NACIQI cc: to [email protected]. Please note Requests for copies of the information meeting will be held on December 1–3, that written comments received in collection submission for OMB review 2010, from 8:30 a.m. to approximately response to this notice will be may be accessed from the RegInfo.gov 5:30 p.m., Eastern Standard Time, at the considered public records. Web site at http://www.reginfo.gov/ U.S. Department of Education, Eighth SUPPLEMENTARY INFORMATION: Section public/do/PRAMain or from the Floor Conference Center, 1990 K Street, 3506 of the Paperwork Reduction Act of Department’s Web site at http:// NW., Washington, DC. 1995 (44 U.S.C. Chapter 35) requires edicsweb.ed.gov, by selecting the Changes to Proposed Agenda: Since that the Office of Management and ‘‘Browse Pending Collections’’ link and the publication of the August 23, 2010 Budget (OMB) provide interested by clicking on link number 4380. When Federal Register notice, the Department Federal agencies and the public an early you access the information collection, has added an item to the proposed opportunity to comment on information click on ‘‘Download Attachments ’’ to agenda: The review of the National collection requests. The OMB is view. Written requests for information Defense University (NDU), as required particularly interested in comments should be addressed to U.S. Department by 10 U.S.C., section 2163, for the which: (1) Evaluate whether the of Education, 400 Maryland Avenue, purpose of evaluating the proposed proposed collection of information is SW., LBJ, Washington, DC 20202–4537. awarding of the NDU’s Master of necessary for the proper performance of Requests may also be electronically Science degree in Government the functions of the agency, including mailed to the Internet address Information Leadership. whether the information will have [email protected] or faxed to 202– Also, due to two different agencies’ practical utility; (2) Evaluate the 401–0920. Please specify the complete requests, the Department removed the accuracy of the agency’s estimate of the title of the information collection and Western Association of Schools and burden of the proposed collection of OMB Control Number when making Colleges Accrediting Commission for information, including the validity of your request. Schools and AdvancED from the the methodology and assumptions used; Individuals who use a proposed December meeting agenda. (3) Enhance the quality, utility, and telecommunications device for the deaf The Western Association of Schools and clarity of the information to be (TDD) may call the Federal Information Colleges Accrediting Commission for collected; and (4) Minimize the burden Relay Service (FIRS) at 1–800–877– Schools decided to withdraw from of the collection of information on those 8339. recognition and AdvancED decided to who are to respond, including through [FR Doc. 2010–28235 Filed 11–8–10; 8:45 am] withdraw its request for initial the use of appropriate automated, BILLING CODE 4000–01–P recognition.

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Other proposed agenda topics for the to advise the Secretary concerning any 1. The name, title, affiliation, mailing December meeting will include the legislation that may be proposed that address, e-mail address, telephone and review of agencies that have submitted would authorize the granting of degrees facsimile numbers, and Web site (if any) petitions for the renewal of recognition, by a Federal agency. The review of the person/group requesting to speak, and the review of agencies that have committee forwards its recommendation and submitted compliance reports/interim concerning a Federal agency’s proposed 2. A brief summary of the principal reports. degree-granting authority to the points to be made during the oral Proposed Agenda: The following Secretary, who then forwards the presentation. agencies are tentatively scheduled for committee’s recommendation and the Only requests made in accordance review during the December 1–3, 2010 Secretary’s recommendation to the with these instructions will result in an NACIQI meeting: Office of Management and Budget. The opportunity to speak under this method. Secretary uses the NACIQI as the review Individuals making oral presentations Nationally Recognized Accrediting committee required for this purpose. may not distribute written materials at Agencies NACIQI’S Statutory Authority and the meeting. Please do not send material Compliance Reports Functions: The NACIQI is established directly to the NACIQI members. under Section 114 of the Higher The second method is to sign up on 1. Association of Advanced Education Act (HEA) as amended, 20 the day of the meeting to make oral Rabbinical and Talmudic Schools, U.S.C. 1011c. The NACIQI advises the comments during the NACIQI’s Accreditation Commission. deliberations about an agency or 2. Commission on Accreditation of Secretary of Education about: • The establishment and enforcement institution scheduled for review. The Healthcare Management Education. requester should provide his or her 3. Council on Accreditation of Nurse of the Criteria for Recognition of accrediting agencies or associations name, title, affiliation, mailing address, Anesthesia Educational Programs. e-mail address, telephone and facsimile 4. Council on Education for Public under Subpart 2, Part H, Title IV, HEA, as amended. numbers, and Web site (if any). A total Health. • of up to 15 minutes during each 5. Northwest Commission on Colleges The recognition of specific accrediting agencies or associations, or agency’s/institution’s review will be and Universities (progress report). allotted for commenters who sign up the 6. The Higher Learning Commission a specific State approval agency. • The preparation and publication of day of the meeting (in addition to those of the North Central Association of the list of nationally recognized commenters who signed up in advance); Colleges and Schools. accrediting agencies and associations. and, if a person or group requests to Petitions for Renewal of Recognition • The eligibility and certification make comments in advance, they cannot 1. American Academy for Liberal process for institutions of higher also sign-up to make comments the day education under Title IV, HEA. of the meeting. Individuals or groups Education. • 2. American Board of Funeral Service The relationship between: (1) that sign up on the day of the meeting Education. Accreditation of institutions of higher will be selected on a first-come, first 3. American Speech Language education and the certification and served basis. If selected, each Hearing Association, Council on eligibility of such institutions, and (2) commenter may speak from three to five Academic Accreditation in Audiology State licensing responsibilities with minutes, depending on the number of respect to such institutions. individuals or groups who signed up the and Speech-Language Pathology. • 4. Commission on Massage Therapy Any other advisory functions day of the meeting. Accreditation. relating to accreditation and Members of the public will be eligible 5. Council on Naturopathic Medical institutional eligibility that the for making third-party oral comments Education. Secretary may prescribe. only in accordance with these 6. Midwifery Education Accreditation Instructions for Making a Third-Party instructions. Their comments will Council. Oral Comment at the December 2010 become part of the official record and 7. Montessori Accreditation Council NACIQI Meeting: There are two methods will be considered by the Department for Teacher Education, Commission on the public may use to make a third-party and the NACIQI in their deliberations. Accreditation. oral comment of three to five minutes Individuals and groups making oral 8. National Accrediting Commission concerning one of the agencies presentations may not distribute written of Cosmetology Arts and Sciences. tentatively scheduled for review during materials at the meeting. the December 1–3, 2010 meeting. Oral comments about agencies State Agencies Recognized for the The first method is to submit a seeking continued recognition or Approval of Nurse Education written request by e-mail in advance of presenting a compliance/interim report 1. Missouri State Board of Nursing. the meeting to make a third-party oral must relate to the Criteria for the presentation. All individuals or groups Recognition of Accrediting Agencies, or Federal Agency Seeking Degree- submitting an advance request in the Criteria and Procedures for Granting Authority accordance with this notice will be Recognition of State Agencies for Nurse 1. National Defense University, afforded an opportunity to speak, for up Education, which are available at Washington, DC (request to award a to a maximum of three minutes each. http://www.ed.gov/admins/finaid/ Master of Science degree in Government Each request must concern the accred/index.html. Information Leadership). recognition of a single agency or If the Committee is reviewing an In accordance with the Federal policy institution tentatively scheduled in this agency’s petition, comments must relate governing the granting of academic notice for review, must be received no to whether the agency meets the Criteria degrees by Federal agencies (approved later than November 22, 2010, and must for Recognition. If the Committee is by a letter from the Director, Bureau of be sent to [email protected] reviewing an agency’s compliance/ the Budget, to the Secretary, Health, with the subject line listed as ‘‘Oral interim report, comments must relate to Education, and Welfare, dated Comments re: (agency/institution the NACIQI’s area of consideration, December 23, 1954), the Secretary is name).’’ Your request (no more than one which will be whether the agency has required to establish a review committee page maximum) must include: demonstrated compliance with the

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specific criteria specified in the FOR FURTHER INFORMATION: Contact free at (866) 208–3676, or TTY, contact Department’s request for the report. Melissa Lewis, Executive Director, (202) 502–8659. Third parties having concerns about NACIQI, U.S. Department of Education, Any questions concerning this agencies regarding matters outside the Room 8060, 1990 K Street, NW., application may be directed to counsel scope of the requested compliance Washington, DC 20006, telephone: (202) of Columbia Gulf, Fredric J. George, report should report those concerns to 219–7011; e-mail: Senior Counsel, Columbia Gulf Department staff. [email protected]. Individuals who Transmission Company, P.O. Box 1273, Comments concerning the National use a telecommunications device for the Charleston, West Virginia 25325–1273 Defense University’s degree-granting deaf (TDD) may call the Federal at (304) 357–2359 or by e-mail at authority request must relate to the Information Relay Service at 1–800– [email protected]. criteria used to evaluate the institution. 877–8339, between 8 a.m. and 8 p.m., Specifically, Columbia Gulf filed an Those criteria may be obtained by Eastern Standard Time, Monday application requesting approval for submitting a request to through Friday. abandonment of approximately 6.3 miles of 16-inch pipeline offshore [email protected], with the Note: The official version of this document subject line listed as ‘‘Request for is the document published in the Federal Louisiana, and approximately 3.0 miles Degree-Granting Authority Criteria.’’ Register. Free Internet access to the official of 16-inch pipeline onshore in Cameron This notice invites third-party oral edition of the Federal Register and the Code Parish, Louisiana, as well as measuring testimony, not written comment. of Federal Regulations is available on GPO equipment, and appurtenances located Access at: http://www.gpoaccess.gov/ in EC23 offshore facilities and the Requests for written comments on index.html. agencies that are tentatively scheduled services provided through the facilities. Pursuant to section 157.9 of the for review during the meeting were Eduardo M. Ochoa, Commission’s rules, 18 CFR 157.9, published in the Federal Register (75 Assistant Secretary for Postsecondary within 90 days of this Notice the FR 21280) on August 23, 2010. The Education. Commission staff will either complete NACIQI will receive and consider only [FR Doc. 2010–28255 Filed 11–8–10; 8:45 am] its environmental assessment (EA) and written comments that were submitted BILLING CODE 4000–01–P place it into the Commission’s public by the September 23, 2010 deadline record (eLibrary) for this proceeding; or specified in the above referenced issue a Notice of Schedule for Federal Register notice. DEPARTMENT OF ENERGY Environmental Review. If a Notice of Access to Records of the Meeting: The Schedule for Environmental Review is Department will post the official report Federal Energy Regulatory issued, it will indicate, among other of the meeting on the NACIQI Web site Commission milestones, the anticipated date for the shortly after the meeting. Pursuant to [Docket No. CP11–14–000] Commission staff’s issuance of the final the FACA, the public may also inspect environmental impact statement (FEIS) the materials at 1990 K Street, NW., Columbia Gulf Transmission or EA for this proposal. The filing of the Washington, DC, by e-mailing the Company, Southern Natural Gas EA in the Commission’s public record [email protected] or by calling Company; Notice of Application for this proceeding or the issuance of a (202) 219–7067 to schedule an Notice of Schedule for Environmental appointment. November 2, 2010. Review will serve to notify Federal and Electronic Access to this Document: Take notice that on October 21, 2010, State agencies of the timing for the You may view this document, as well as Columbia Gulf Transmission Company completion of all necessary reviews, and all other Department of Education (Columbia Gulf), 5151 San Felipe, Suite the subsequent need to complete all documents published in the Federal 2500, Houston, Texas 77056, and Federal authorizations within 90 days of Register, in text or Adobe Portable Southern Natural Gas Company (Natural the date of issuance of the Commission Document Format (PDF), on the Internet Gas), Colonial Brookwood Center, 569 staff’s FEIS or EA. at the following site: http://www.ed.gov/ Brookwood Village, Suite 501, There are two ways to become legislation/fedregister. Birmingham, Alabama 35209, jointly involved in the Commission’s review of To use PDF, you must have Adobe filed in Docket No. CP11–14–000 an this project. First, any person wishing to Acrobat Reader, which is available free application pursuant to section 7(b) of obtain legal status by becoming a party at this site. If you have questions about the Natural Gas Act (NGA) requesting to the proceedings for this project using PDF, call the U.S. Government that the Commission grant Columbia should, on or before the comment date Printing Office (GPO), toll free, at 1– Gulf approval to abandon (1) certain stated below, file with the Federal 866–512–1830; or, in the Washington, jointly owned natural gas facilities Energy Regulatory Commission, 888 DC area at (202) 512–0000. located offshore in East Cameron Block First Street, NE., Washington, DC 20426, Reasonable Accommodations: 23 (EC23 offshore facilities), and a motion to intervene in accordance Individuals who will need onshore in Cameron Parish, Louisiana; with the requirements of the accommodations for a disability in order and (2) the services currently provided Commission’s Rules of Practice and to attend the December 1–3, 2010 through the EC23 offshore facilities, all Procedure (18 CFR 385.214 or 385.211) meeting (i.e., interpreter services, as more fully set forth in the application and the Regulations under the NGA (18 assistive listening devices, and/or which is on file with the Commission CFR 157.10). A person obtaining party materials in alternative format) should and open to public inspection. The status will be placed on the service list contact Department staff by telephone: filing may also be viewed on the Web maintained by the Secretary of the (202) 219–7011; or, e-mail: at http://www.ferc.gov using the Commission and will receive copies of [email protected], no later ‘‘eLibrary’’ link. Enter the docket number all documents filed by the applicant and than November 22, 2010. We will excluding the last three digits in the by all other parties. A party must submit attempt to meet requests after this date docket number field to access the original and 7 copies of filings made but cannot guarantee the availability of document. For assistance, please contact with the Commission and must mail a the requested accommodation. The FERC Online Support at copy to the applicant and to every other meeting site is accessible. [email protected] or toll party in the proceeding. Only parties to

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the proceeding can ask for court review Comment Date: November 23, 2010. Description: Compliance Filing of PJM of Commission orders in the proceeding. Interconnection, L.L.C. Kimberly D. Bose, Filed Date: 11/01/2010. However, a person does not have to Secretary. intervene in order to have comments Accession Number: 20101101–5198. [FR Doc. 2010–28230 Filed 11–8–10; 8:45 am] considered. The second way to Comment Date: 5 p.m. Eastern Time BILLING CODE 6717–01–P participate is by filing with the on Monday, November 22, 2010. Secretary of the Commission, as soon as Docket Numbers: ER10–2753–002. Applicants: Domtar Corporation. possible, an original and two copies of DEPARTMENT OF ENERGY comments in support of or in opposition Description: Domtar Corporation to this project. The Commission will Federal Energy Regulatory submits tariff filing per 35: eTariff consider these comments in Commission Compliance Filing to be effective 9/20/ determining the appropriate action to be 2010. taken, but the filing of a comment alone Combined Notice of Filings #1 Filed Date: 11/02/2010. will not serve to make the filer a party Accession Number: 20101102–5068. to the proceeding. The Commission’s November 2, 2010. Comment Date: 5 p.m. Eastern Time rules require that persons filing Take notice that the Commission on Tuesday, November 23, 2010. comments in opposition to the project received the following electric rate Docket Numbers: ER10–2782–001. provide copies of their protests only to filings: Applicants: Midwest Generation LLC. the party or parties directly involved in Docket Numbers: ER98–4109–006; Description: Midwest Generation LLC the protest. ER99–3426–012; ER03–175–010; ER03– submits tariff filing per 35: Midwest 394–008; ER03–427–008; ER04–170– Generation, LLC Reactive Supply and Persons who wish to comment only 010; ER05–440–004; ER07–265–013; Voltage Control Tariff to be effective 9/ on the environmental review of this ER08–100–012; ER09–1453–003. 21/2010. project should submit an original and Applicants: El Dorado Energy, LLC; Filed Date: 11/01/2010. two copies of their comments to the San Diego Gas & Electric Company Accession Number: 20101101–5091. Secretary of the Commission. Termoelectrica U.S., LLC; Elk Hills Comment Date: 5 p.m. Eastern Time Environmental commentors will be Power, LLC; Mesquite Power, LLC; on Monday, November 22, 2010. placed on the Commission’s MxEnergy Electric Inc.; Sempra Docket Numbers: ER11–110–000. environmental mailing list, will receive Generation; Sempra Energy Solutions Applicants: Oklahoma Gas & Electric copies of the environmental documents, LLC; Sempra Energy Trading LLC; Company. and will be notified of meetings Gateway Energy Services Corporation. Description: Request for Waiver of associated with the Commission’s Description: Sempra Supplement to Oklahoma Gas & Electric. environmental review process. Triennial Market-Based Rate Update. Filed Date: 10/07/2010. Environmental commentors will not be Filed Date: 11/01/2010. Accession Number: 20101007–5121. required to serve copies of filed Accession Number: 20101101–5197. Comment Date: 5 p.m. Eastern Time documents on all other parties. Comment Date: 5 p.m. Eastern Time on Tuesday, November 9, 2010. However, the non-party commentors on Monday, November 22, 2010. Docket Numbers: ER11–1987–000. will not receive copies of all documents Docket Numbers: ER99–705–006. Applicants: PJM Interconnection, filed by other parties or issued by the Applicants: Golden Spread Electric L.L.C. Commission (except for the mailing of Cooperative, Inc. Description: PJM Interconnection, environmental documents issued by the Description: Notice of Change in L.L.C. submits tariff filing per 35: PJM Commission) and will not have the right Status of Golden Spread Electric Ministerial Filing to reflect Tariff and to seek court review of the Cooperative, Inc. OA Language Accepted in ER10–1196 to Commission’s final order. Filed Date: 11/01/2010. be effective 1/1/2011. The Commission strongly encourages Accession Number: 20101101–5203. Filed Date: 11/01/2010. electronic filings of comments, protests Comment Date: 5 p.m. Eastern Time Accession Number: 20101101–5123. and interventions in lieu of paper using on Monday, November 22, 2010. Comment Date: 5 p.m. Eastern Time the ‘‘eFiling’’ link at http://www.ferc.gov. Docket Numbers: ER07–1117–018; on Monday, November 22, 2010. Persons unable to file electronically ER05–1232–032; ER01–2765–033; Docket Numbers: ER11–1988–000. should submit an original and 14 copies ER00–2885–034; ER02–1437–008; Applicants: PJM Interconnection, of the protest or intervention to the ER02–2102–033; ER09–1141–013. L.L.C. Federal Energy Regulatory Commission, Applicants: Triton Power Michigan Description: PJM Interconnection, 888 First Street, NE., Washington, DC LLC, BE KJ LLC, Cedar Brakes I, L.L.C., L.L.C. submits tariff filing per 20426. Utility Contract Funding, L.L.C., Cedar 35.13(a)(2)(iii): PJM Tariff and OA This filing is accessible on-line at Brakes II, L.L.C., J.P. Morgan Ventures Revisions—Sept. 3, 2010 Order and http://www.ferc.gov, using the Energy Corporation, J.P. Morgan Directives re: ER10–1196 to be effective ‘‘eLibrary’’ link and is available for Commodities Canada Corporation. 1/1/2011. review in the Commission’s Public Description: BE KJ LLC, Triton Power Filed Date: 11/01/2010. Reference Room in Washington, DC. Michigan LLC, J.P. Morgan Ventures Accession Number: 20101101–5130. There is an ‘‘eSubscription’’ link on the Energy Corporation et al submits Notice Comment Date: 5 p.m. Eastern Time Web site that enables subscribers to of Non-Material Change in Status. on Monday, November 22, 2010. receive e-mail notification when a Filed Date: 10/29/2010. Docket Numbers: ER11–1989–000. document is added to a subscribed Accession Number: 20101029–5258. Applicants: Columbus Southern docket(s). For assistance with any FERC Comment Date: 5 p.m. Eastern Time Power Company. Online service, please e-mail on Friday, November 19, 2010. Description: Columbus Southern [email protected], or call Docket Numbers: ER10–1196–001. Power Company submits tariff filing per (866) 208–3676 (toll free). For TTY, call Applicants: PJM Interconnection, 35.12: 20101101—CSP RS and SA to be (202) 502–8659. L.L.C. effective 11/2/2010.

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Filed Date: 11/01/2010. 35.13(a)(2)(iii): 20101101 CSP FRR Accession Number: 20101101–5195. Accession Number: 20101101–5143. Filing to be effective 11/2/2010. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Filed Date: 11/01/2010. on Monday, November 22, 2010. on Monday, November 22, 2010. Accession Number: 20101101–5170. Docket Numbers: ER11–2002–000. Docket Numbers: ER11–1990–000. Comment Date: 5 p.m. Eastern Time Applicants: Oklahoma Gas and Applicants: Ohio Power Company. on Monday, November 22, 2010. Electric Company. Description: Ohio Power Company Docket Numbers: ER11–1996–000. Description: Notice of Cancellation of submits tariff filing per 35.12: Applicants: Westar Energy, Inc. Rate Schedule WM–1, First Revised 20101101—OPCo RS and SA to be Description: Westar Energy, Inc. Service Agreement No. 93, of Oklahoma effective 11/2/2010. submits tariff filing per 35.13(a)(2)(i): Gas and Electric Company. Filed Date: 11/01/2010. City of Eudora, KS WSM–01/2011, Filed Date: 11/01/2010. Accession Number: 20101101–5144. Wholesale Svc Municipalities to be Accession Number: 20101101–5196. Comment Date: 5 p.m. Eastern Time effective 1/1/2011. Comment Date: 5 p.m. Eastern Time on Monday, November 22, 2010. Filed Date: 11/01/2010. on Monday, November 22, 2010. Docket Numbers: ER11–1991–000. Accession Number: 20101101–5172. Docket Numbers: ER11–2003–000. Applicants: Midwest Independent Comment Date: 5 p.m. Eastern Time Applicants: Tucson Electric Power Transmission System Operator, Inc. on Monday, November 22, 2010. Company. Description: Midwest Independent Docket Numbers: ER11–1997–000. Description: Tucson Electric Power Transmission System Operator, Inc. Applicants: Ohio Power Company. Company submits tariff filing per 35.12: submits revisions to their Open Access Description: Ohio Power Company Balancing Agreement between TEP and Transmission, Energy and Operating submits tariff filing per 35.13(a)(2)(iii): Red Mesa to be effective 11/3/2010. Reserve Markets Tariff, FERC Electric OPCo FRR Cap Comp to be effective 11/ Filed Date: 11/02/2010. Tariff, Fifth Revised Volume No 1, 2/2010. Accession Number: 20101102–5074. effective 3/1/2011. Filed Date: 11/02/2010. Comment Date: 5 p.m. Eastern Time Filed Date: 11/01/2010. Accession Number: 20101102–5000. on Tuesday, November 23, 2010. Accession Number: 20101101–5161. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER11–2004–000. Comment Date: 5 p.m. Eastern Time on Tuesday, November 23, 2010. Applicants: Duke Energy Carolinas, on Monday, November 22, 2010. Docket Numbers: ER11–1998–000. LLC. Docket Numbers: ER11–1992–000. Applicants: Pacific Gas and Electric Description: Duke Energy Carolinas, Applicants: Entergy Arkansas, Inc. Company. LLC submits tariff filing per Description: Entergy Arkansas, Inc. Description: Pacific Gas and Electric 35.13(a)(2)(iii): Revisions to Rate submits tariff filing per 35.13(a)(2)(iii): Company submits tariff filing per Schedule No. 318 to be effective 1/1/ Third Revised ETEC PCIA to be effective 35.13(a)(2)(i): McAllister Ranch Service 2011. 1/1/2011. Agreement No. 58 to be effective 1/1/ Filed Date: 11/02/2010. Filed Date: 11/01/2010. 2011. Accession Number: 20101102–5084. Accession Number: 20101101–5165. Filed Date: 11/02/2010. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Accession Number: 20101102–5001. on Tuesday, November 23, 2010. on Monday, November 22, 2010. Comment Date: 5 p.m. Eastern Time Take notice that the Commission Docket Numbers: ER11–1993–000. on Tuesday, November 23, 2010. received the following electric securities Applicants: Southern California Docket Numbers: ER11–1999–000. filings: Edison Company. Applicants: New England Power Pool. Docket Numbers: ES11–8–000. Description: Southern California Description: New England Power Pool Applicants: PJM Interconnection, Edison Company submits tariff filing submits their member application and L.L.C., PJM Settlement, Inc. per 35.13(a)(2)(iii): Extend Term of termination of memberships. Description: Application of PJM Eldorado Conveyance & Co-Tenancy Filed Date: 11/01/2010. Interconnection, L.L.C., and PJM and Communication Agreements to be Accession Number: 20101102–0201. Settlement, Inc. Under Section 204 of effective 1/1/2011. Comment Date: 5 p.m. Eastern Time the Federal Power Act for an Order Filed Date: 11/01/2010. on Monday, November 22, 2010. Authorizing Issuances of Securities and Accession Number: 20101101–5166. Docket Numbers: ER11–2000–000. Approving Guaranty. Comment Date: 5 p.m. Eastern Time Applicants: Florida Power Filed Date: 11/01/2010. on Monday, November 22, 2010. Corporation. Accession Number: 20101101–5202. Docket Numbers: ER11–1994–000. Description: Florida Power Comment Date: 5 p.m. Eastern Time Applicants: Westar Energy, Inc. Corporation submits tariff filing per on Monday, November 22, 2010. Description: Westar Energy, Inc. 35.13(a)(2)(iii): Rate Schedule No. 214 of Take notice that the Commission submits tariff filing per 35.13(a)(2)(i): Florida Power Corporation to be received the following open access Herington and Wamego, KS Schedule effective 12/31/2010. transmission tariff filings: WTU–01/2011, Wholesale Svc Filed Date: 11/02/2010. Docket Numbers: OA11–1–000; Municipalities to be effective 1/1/2011. Accession Number: 20101102–5033. OA11–2–000. Filed Date: 11/01/2010. Comment Date: 5 p.m. Eastern Time Applicants: Golden Spread Electric Accession Number: 20101101–5169. on Tuesday, November 23, 2010. Cooperative, Inc., Golden Spread Comment Date: 5 p.m. Eastern Time Docket Numbers: ER11–2001–000. Panhandle Wind Ranch, LLC. on Monday, November 22, 2010. Applicants: Pacific Gas and Electric Description: Request for Waiver of Docket Numbers: ER11–1995–000. Company. Golden Spread Electric Cooperative, Inc. Applicants: Columbus Southern Description: Notice of Termination of and Golden Spread Panhandle Wind Power Company. Service Agreement—Pacific Gas and Ranch, LLC. Description: Columbus Southern Electric Company. Filed Date: 11/01/2010. Power Company submits tariff filing per Filed Date: 11/01/2010. Accession Number: 20101101–5194.

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Comment Date: 5 p.m. Eastern Time appropriate link in the above list. They intervention or motion to intervene, as on Monday, November 22, 2010. are also available for review in the appropriate. Such notices, motions, or Any person desiring to intervene or to Commission’s Public Reference Room in protests must be filed on or before the protest in any of the above proceedings Washington, DC. There is an comment date. Anyone filing a motion must file in accordance with Rules 211 eSubscription link on the Web site that to intervene or protest must serve a copy and 214 of the Commission’s Rules of enables subscribers to receive e-mail of that document on the Applicant and Practice and Procedure (18 CFR 385.211 notification when a document is added all the parties in this proceeding. and 385.214) on or before 5 p.m. Eastern to a subscribed docket(s). For assistance The Commission encourages time on the specified comment date. It with any FERC Online service, please e- electronic submission of protests and is not necessary to separately intervene mail [email protected]. or interventions in lieu of paper using the again in a subdocket related to a call (866) 208–3676 (toll free). For TTY, ‘‘eFiling’’ link at http://www.ferc.gov. compliance filing if you have previously call (202) 502–8659. Persons unable to file electronically intervened in the same docket. Protests should submit an original and 14 copies Nathaniel J. Davis, Sr., of the protest or intervention to the will be considered by the Commission Deputy Secretary. in determining the appropriate action to Federal Energy Regulatory Commission, [FR Doc. 2010–28212 Filed 11–8–10; 8:45 am] be taken, but will not serve to make 888 First Street, NE., Washington, DC protestants parties to the proceeding. BILLING CODE 6717–01–P 20426. Anyone filing a motion to intervene or This filing is accessible on-line at http://www.ferc.gov, using the protest must serve a copy of that DEPARTMENT OF ENERGY document on the Applicant. In reference ‘‘eLibrary’’ link and is available for to filings initiating a new proceeding, Federal Energy Regulatory review in the Commission’s Public interventions or protests submitted on Commission Reference Room in Washington, DC. or before the comment deadline need There is an ‘‘eSubscription’’ link on the not be served on persons other than the [Docket No. EL07–86–014; Docket No. Web site that enables subscribers to EL07–88–014; Docket No. EL07–92–014] Applicant. receive e-mail notification when a document is added to a subscribed As it relates to any qualifying facility Notice of Filing filings, the notices of self-certification docket(s). For assistance with any FERC [or self-recertification] listed above, do November 2, 2010. Online service, please e-mail not institute a proceeding regarding [email protected], or call qualifying facility status. A notice of Docket No. EL07–86–014. (866) 208–3676 (toll free). For TTY, call self-certification [or self-recertification] Ameren Services Company; Northern Indiana (202) 502–8659. simply provides notification that the Public Service Company v. Midwest Inde- Comment Date: 5 p.m. Eastern Time entity making the filing has determined pendent Transmission System Operator, on November 18, 2010. Inc. the facility named in the notice meets Docket No. EL07–88–014. Kimberly D. Bose, the applicable criteria to be a qualifying Great Lakes Utilities; Indiana Municipal Secretary. facility. Intervention and/or protest do Power Agency; Missouri Joint Municipal [FR Doc. 2010–28231 Filed 11–8–10; 8:45 am] not lie in dockets that are qualifying Electric Utility Commission; Missouri River BILLING CODE 6717–01–P facility self-certifications or self- Energy Services; Prairie Power, Inc; recertifications. Any person seeking to Southern Minnesota Municipal Power Agency; Wisconsin Public Power Inc. v. challenge such qualifying facility status DEPARTMENT OF ENERGY may do so by filing a motion pursuant Midwest Independent Transmission Sys- to 18 CFR 292.207(d)(iii). Intervention tem Operator, Inc. Docket No. EL07–92–014. Federal Energy Regulatory and protests may be filed in response to Wabash Valley Power Association, Inc. v. Commission notices of qualifying facility dockets Midwest Independent Transmission Sys- [Docket No. RC11–2–000] other than self-certifications and self- tem Operator, Inc. recertifications. Milford Wind Coordinator Phase I, LLC; The Commission encourages Take notice that on October 29, 2010, Notice of Filing electronic submission of protests and The Midwest Independent Transmission interventions in lieu of paper, using the System Operator, Inc. filed proposed November 2, 2010. FERC Online links at http:// revisions to its Open Access Take notice that on November 1, www.ferc.gov. To facilitate electronic Transmission, Energy and Operating 2010, Milford Wind Coordinator Phase service, persons with Internet access Reserve Markets Tariff, Fourth Revised I, LLC (Milford) filed an appeal with the who will eFile a document and/or be Volume, pursuant to the Federal Energy Federal Energy Regulatory Commission listed as a contact for an intervenor Regulatory Commission’s Order issued (Commission) of the October 6, 2010 must create and validate an August 30, 2010, Midwest Indep. Trans. decision of the North American Electric eRegistration account using the Sys. Operator, Inc., 132 FERC ¶ 61,186 Reliability Corporation (NERC) Board of eRegistration link. Select the eFiling (2010) (August 30 Order). Trustees Compliance Committee link to log on and submit the Any person desiring to intervene or to denying an appeal for inclusion on the intervention or protests. protest this filing must file in NERC Compliance Registry as a Persons unable to file electronically accordance with Rules 211 and 214 of Transmission Owner and Transmission should submit an original and 14 copies the Commission’s Rules of Practice and Operator. of the intervention or protest to the Procedure (18 CFR 385.211, 385.214). Any person desiring to intervene or to Federal Energy Regulatory Commission, Protests will be considered by the protest this filing must file in 888 First St., NE., Washington, DC Commission in determining the accordance with Rules 211 and 214 of 20426. appropriate action to be taken, but will the Commission’s Rules of Practice and The filings in the above proceedings not serve to make protestants parties to Procedure (18 CFR 385.211, 385.214). are accessible in the Commission’s the proceeding. Any person wishing to Protests will be considered by the eLibrary system by clicking on the become a party must file a notice of Commission in determining the

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appropriate action to be taken, but will Any person desiring to intervene or to monitoring, enforcement and not serve to make protestants parties to protest this filing must file in compliance. The Commission the proceeding. Any person wishing to accordance with Rules 211 and 214 of announced the conference in its become a party must file a notice of the Commission’s Rules of Practice and September 16, 2010 order that accepted intervention or motion to intervene, as Procedure (18 CFR 385.211, 385.214). the North American Electric Reliability appropriate. Such notices, motions, or Protests will be considered by the Corporation’s initial assessment in protests must be filed on or before the Commission in determining the Docket No. RR09–7–000 of its comment date. On or before the appropriate action to be taken, but will performance as the nation’s Electric comment date, it is not necessary to not serve to make protestants parties to Reliability Organization (ERO), and serve motions to intervene or protests the proceeding. Any person wishing to performance by the Regional Entities, on persons other than the Applicant. become a party must file a notice of under their delegation agreements with The Commission encourages intervention or motion to intervene, as the ERO.1 electronic submission of protests and appropriate. Such notices, motions, or interventions in lieu of paper using the protests must be filed on or before the This Technical Conference will be ‘‘eFiling’’ link at http://www.ferc.gov. comment date. On or before the held in the Commission Meeting Room Persons unable to file electronically comment date, it is not necessary to (2C) at Commission Headquarters, 888 should submit an original and 14 copies serve motions to intervene or protests First Street, NE., Washington, DC 20426, of the protest or intervention to the on persons other than the Applicant. from 1 p.m. until 5 p.m. EST. Attached Federal Energy Regulatory Commission, The Commission encourages is the Agenda for the conference. The 888 First Street, NE., Washington, DC electronic submission of protests and Commission will issue a later notice 20426. interventions in lieu of paper using the that lists the panelists for the This filing is accessible on-line at ‘‘eFiling’’ link at http://www.ferc.gov. conference. Persons unable to file electronically http://www.ferc.gov, using the The conference will be transcribed ‘‘ ’’ should submit an original and 14 copies eLibrary link and is available for and Webcast. Transcripts of the review in the Commission’s Public of the protest or intervention to the conference will be immediately Reference Room in Washington, DC. Federal Energy Regulatory Commission, available for a fee from Ace-Federal There is an ‘‘eSubscription’’ link on the 888 First Street, NE., Washington, DC Reporters, Inc. (202–347–3700 or 1– Web site that enables subscribers to 20426. receive e-mail notification when a This filing is accessible on-line at 800–336–6646). A free webcast of the document is added to a subscribed http://www.ferc.gov, using the conference is also available through docket(s). For assistance with any FERC ‘‘eLibrary’’ link and is available for http://www.ferc.gov. Anyone with Online service, please e-mail review in the Commission’s Public Internet access who desires to listen to [email protected], or call Reference Room in Washington, DC. this event can do so by navigating to (866) 208–3676 (toll free). For TTY, call There is an ‘‘eSubscription’’ link on the http://www.ferc.gov’s Calendar of Events (202) 502–8659. Web site that enables subscribers to and locating this event in the Calendar. Comment Date: 5 p.m. Eastern Time receive e-mail notification when a The event will contain a link to its on December 1, 2010. document is added to a subscribed webcast. The Capitol Connection docket(s). For assistance with any FERC provides technical support for the Kimberly D. Bose, Online service, please e-mail webcasts and offers the option of Secretary. [email protected], or call listening to the meeting via phone- [FR Doc. 2010–28233 Filed 11–8–10; 8:45 am] (866) 208–3676 (toll free). For TTY, call bridge for a fee. If you have any BILLING CODE 6717–01–P (202) 502–8659. questions, visit http:// Comment Date: 5 p.m. Eastern Time www.CapitolConnection.org or call 703– on November 26, 2010. DEPARTMENT OF ENERGY 993–3100. Kimberly D. Bose, All interested parties are invited and Federal Energy Regulatory Secretary. there is no registration list or Commission [FR Doc. 2010–28232 Filed 11–8–10; 8:45 am] registration fee to attend. BILLING CODE 6717–01–P For further information, contact Roger [Docket No. RC11–1–000] Morie by e-mail at [email protected] Cedar Creek Wind Energy, LLC; Notice DEPARTMENT OF ENERGY or by phone at 202–502–8446 (before of Filing November 11, 2010), and Gregory Federal Energy Regulatory Campbell by e-mail at November 2, 2010. Commission [email protected] or by phone Take notice that on October 27, 2010, at 202–502–6465 (after November 11, [Docket No. AD11–1–000] Cedar Creek Wind Energy, LLC (Cedar 2010). Creek) filed an appeal with the Federal Reliability Monitoring, Enforcement Nathaniel J. Davis, Sr., Energy Regulatory Commission and Compliance Issues; Agenda for Deputy Secretary. (Commission) of the October 6, 2010 the Technical Conference decision of the North American Electric [FR Doc. 2010–28211 Filed 11–8–10; 8:45 am] Reliability Corporation (NERC) Board of November 2, 2010. BILLING CODE 6717–01–P Trustees Compliance Committee The Federal Energy Regulatory affirming a determination by the Commission (Commission) issued a Western Electricity Coordinating notice on October 1, 2010 that it will Council that Cedar Creek be included on hold a Commissioner-led Technical 1 North American Electric Reliability Corporation; the NERC Compliance Registry as a Conference on November 18, 2010 in Reliability Standards Development and NERC and Transmission Owner and Transmission the above-referenced proceeding to Regional Entity Enforcement, 132 FERC ¶ 61,217, at Operator. explore issues associated with reliability P 12 (2010).

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DEPARTMENT OF ENERGY Renewable Energy, U.S. Department of of national guidelines to promote high- Energy, 1000 Independence Avenue quality energy efficiency retrofit work. Office of Energy Efficiency and SW., Washington, DC 20585. Phone DOE developed the Workforce Renewable Energy number: (202) 287–1553. E-mail: Guidelines in response to this [email protected]. recommendation. Workforce Guidelines for Home Energy Kavita M. Patel, U.S. Department of The process of developing the Upgrades Energy, Office of the General Counsel, Workforce Guidelines has involved a AGENCY: Office of Energy Efficiency and Forrestal Building, GC–71, 1000 historic collaboration between WAP Renewable Energy, U.S. Department of Independence Avenue SW., practitioners and trainers, home Energy. Washington, DC 20585. Phone number: performance contractors, building (202) 586–0669. E-mail: scientists, organized labor, healthy ACTION: Notice of availability; request [email protected]. homes and worker safety experts, and for comments. SUPPLEMENTARY INFORMATION: EERE has other professionals in the building SUMMARY: The U.S. Department of tasked the National Renewable Energy trades and throughout the retrofit Energy Office of Energy Efficiency and Laboratory with developing a suite of industry. Renewable Energy (EERE) announces voluntary national guidelines for the The first iteration of the development the availability of a set of Standard work and workforce involved in home process involved 60 technical experts Work Specifications (SWSs), Job Task energy upgrades. The Workforce and resulted in a first draft of 270 pages Analyses (JTAs) and essential Guidelines build upon the considerable of SWSs. A second group of 80 technical Knowledge, Skills and Abilities (KSAs) body of material already in circulation experts thoroughly reviewed and edited applicable to energy efficiency retrofits and the cumulative knowledge gathered the draft SWSs, including a WAP of single family homes which together throughout the 30-year history of the programmatic review, 6 climate-specific constitute the Workforce Guidelines for energy efficiency retrofit industry. reviews, a healthy homes review Home Energy Upgrades (‘‘Workforce The effort to develop the Workforce coordinated by the EPA, and a worker Guidelines’’). These Workforce Guidelines for Home Energy Upgrades health and safety review coordinated by Guidelines are intended for voluntary has its origins in and is supported by Department of Labor. While development of the SWSs was moving adoption by the Weatherization the Weatherization Assistance Program forward, 50 retrofit technicians and Assistance Program, EPA Home (WAP) Training and Technical trainers from around the country Performance with Energy Star program Assistance Plan (T&TA). The T&TA plan conducted a professionally-facilitated partners, State, municipal and utility seeks to ensure that Recovery Act workshop to develop the Job Task ratepayer-funded energy efficiency investments help lay a permanent Analyses and Essential KSAs for the retrofit programs, and private sector foundation for a stronger WAP. This four most common home energy retrofit home performance contractors, as well foundation could also provide WAP job classifications: Energy Auditor, as any other organization, company, or workers hired to support Recovery Act Installer/Technician, Crew Chief, and individual involved in energy efficiency implementation with future Quality Assurance Professional/ retrofits of residential homes. Through employment opportunities in the Inspector. this notice, DOE also requests public rapidly expanding home performance • The Workforce Guidelines consist comments on the Workforce Guidelines. industry. Concurrently, in May 2009, the Vice of four components: Standard Work DATES: Comments on the Workforce President’s Middle Class Task Force Specifications, a Technical Standards Guidelines for Home Energy Upgrades asked the White House Council on Reference Guide, Job Task Analyses and must be received by 5 p.m. Eastern Time Environmental Quality (CEQ) to develop Knowledge, Skills, and Abilities. on Friday, January 7, 2011. • recommendations for Federal action to Standard Work Specifications ADDRESSES: A draft of the Workforce lay the architecture for a self-sustaining define the minimum requirements for Guidelines is available for review and home energy efficiency retrofit industry. high quality energy efficiency retrofit public comment online at: http:// In response, CEQ facilitated a broad work and the conditions necessary to www.weatherization.energy.gov/ interagency process that resulted in the achieve the desired outcomes of a given retrofit_guidelines. retrofit measure. development of six recommendations • You may also submit comments by described in detail in a report titled Technical Standards are standards, any of the following methods: Recovery Through Retrofit.1 These regulations and codes developed by • Federal eRulemaking Portal: http:// recommendations were carefully crafted government, industry or third-party www.regulations.gov. Follow the to stimulate the growth of a vibrant, standards development organizations— instructions for submitting comments. private sector-led market for residential such as OSHA, EPA, the American • Via Internet: http:// energy efficiency retrofits. Society of Heating, Refrigerating and www.weatherization.energy.gov/ Air-Conditioning Engineers (ASHRAE), _ The Recovery Through Retrofit retrofit guidelines. Workforce Working Group—which ASTM International, and the Building • By e-mail: includes DOE, the Department of Labor, Performance Institute—that define the [email protected]. the Environmental Protection Agency safety, materials, installation, and • By mail: Retrofit Guidelines, (EPA), the Department of Education, the application standards relevant to National Renewable Energy Laboratory, Small Business Administration, and residential building energy efficiency 1617 Cole Blvd., Golden, CO 80401– other agencies—identified the lack of a retrofits. 3305. • Job Task Analyses identify and For further information on how to skilled and credentialed workforce as a key barrier to scaling up the residential catalog all of the tasks a given worker submit comments, please see the typically performs when completing a SUPPLEMENTARY INFORMATION section. energy efficiency retrofit market. The report recommended establishing a set suite of energy efficiency improvements FOR FURTHER INFORMATION CONTACT: in a home. • Benjamin Goldstein, Weatherization and 1 http://www.whitehouse.gov/sites/default/files/ Essential KSAs identify the Intergovernmental Programs, Mailstop Recovery_Through_Retrofit_Final_Report.pdf (last minimum knowledge, skills, and EE–2K, Office of Energy Efficiency and visited Oct. 7, 2010). abilities that a skilled worker should

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possess to perform high quality energy the WAP and other energy efficiency should submit two copies: One copy of efficiency retrofit work for the given retrofit efforts can adopt to increase the the document including all the occupation or job level. quality of the retrofit work performed information believed to be confidential, The Standard Work Specifications are while maintaining or improving the and one copy of the document that does organized by section, corresponding to health and safety of the occupant(s). not include the information believed to the different systems found in Together, the DOE and EPA be confidential. DOE will make its own residential buildings. Within each documents will: provide a robust and determination as to the confidential section are subtopics and details that practical set of resources for retrofit status of the information and treat it contain the critical specification that contractors, trainers, and program according to its determination. must be achieved to ensure quality administrators; help improve the quality Factors of interest to DOE when work. Throughout the Standard Work of the work performed in this expanding evaluating requests to treat submitted Specifications document are footnotes industry; promote occupant health and information as confidential include: referring to the relevant Technical safety; and drive consumer demand for (1) A description of the items; Standards, which are then summarized energy efficiency retrofit services. DOE (2) Whether and why such items are in Appendix D. encourages reviewers of the Workforce customarily treated as confidential The Job Task Analyses and Essential Guidelines with a specific interest in within the industry; Knowledge Skills and Abilities are made healthy indoor environments to also (3) Whether the information is up of ‘‘Content Outlines’’ for the four review and comment on the EPA generally known by or available from common energy efficiency retrofit job document, available at: http:// other sources; classifications. They were developed by www.epa.gov/iaq/homes/retrofits.html. (4) Whether the information has professional psychometricians working Issues on Which DOE Seeks Comment previously been made available to with experienced technicians from others without obligation concerning its WAP, the residential energy efficiency DOE is particularly interested in confidentiality; retrofit contractor community, and receiving comments and views of (5) An explanation of the competitive organized labor. The Content Outlines interested parties on the following injury to the submitting person which provide a detailed inventory of the issues: • would result from public disclosure; minimum knowledge, skills and The appropriateness of each of the (6) A date upon which such abilities (both cognitive and Standard Work Specifications, both at information might lose its confidential psychomotor) that a worker should the chapter level and at the individual nature due to the passage of time; and possess to perform high quality energy task level. • (7) Why disclosure of the information efficiency retrofit work. The citations of technical standards would be contrary to the public interest. Once finalized, the Workforce referenced in the Standard Work Guidelines will: Specifications. Issued in Washington, DC, on November 4, 1. Enable State and local WAP • The tasks, knowledge skills and 2010. officials and other residential retrofit abilities identified for the four (4) job Cathy Zoi, program administrators to strengthen descriptions. Acting Under Secretary of Energy, Assistant Secretary for Energy Efficiency and their field guides and other work Submission of Comments manuals by incorporating the high Renewable Energy. quality SWSs contained in the DOE will accept comments, data, and [FR Doc. 2010–28289 Filed 11–8–10; 8:45 am] Workforce Guidelines. information regarding the proposed BILLING CODE 6450–01–P 2. Assist training providers in guidelines no later than January 7, 2011. developing course content and curricula If submitting comments via the DOE consistent with an industry-recognized Web page, please follow all instructions ENVIRONMENTAL PROTECTION suite of Job Task Analyses. on the Web page: http:// AGENCY 3. Increase workforce mobility up www.weatherization.energy.gov/ career ladders and across career lattices retrofit_guidelines. This Web site is [EPA–HQ–OAR–2007–0563; FRL- 9224–1; specifically designed for ease of use to EPA ICR No. 1764.04; OMB Control No. by establishing a clear set of essential 2060–0348] KSAs upon which worker credentials facilitate the public comment process. should be based. DOE will transfer comments received on Agency Information Collection 4. Build confidence among consumers our Web site to Regulations.gov for Activities: Submission to OMB for and the energy efficiency finance public review. Review and Approval; Comment community that retrofit work will be Comments, data, and information Request; National Volatile Organic completed in a quality manner and uploaded to Regulations.gov, or Compound Emission Standards for produce the expected energy savings submitted via DOE’s e-mail address or Consumer Products (Renewal) and health benefits. regular mail should be provided in 5. Lay the foundation for a more WordPerfect, Microsoft Word, PDF, or AGENCY: Environmental Protection robust worker certification and training text (ASCII) file format. Interested Agency. program accreditation architecture. parties should avoid the use of special ACTION: Notice. In coordination with the DOE-led characters or any form of encryption, effort, the EPA has developed a and wherever possible, comments SUMMARY: In compliance with the keystone document pertaining to health should include the electronic signature Paperwork Reduction Act (PRA)(44 considerations in residential energy of the author. Comments, data, and U.S.C. 3501 et seq.), this document efficiency upgrades. These EPA Healthy information submitted to DOE via announces that EPA is planning to Indoor Environment Protocols for Home regular mail may include one signed submit a request to renew an existing Energy Upgrades and the DOE paper original. approved Information Collection Workforce Guidelines were developed According to 10 CFR 1004.11, any Request (ICR) to the Office of in conjunction with one another and are person submitting information that he Management and Budget (OMB). This is complementary. Both are intended to or she believes to be confidential and a request to renew an existing approved provide a set of voluntary measures that exempt by law from public disclosure collection. This ICR is scheduled to

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expire on February 28, 2011. Before public comments, access the index response. Burden means the total time, submitting the ICR to OMB for review listing of the contents of the docket, and effort, or financial resources expended and approval, EPA is soliciting to access those documents in the docket by persons to generate, maintain, retain, comments on specific aspects of the that are available electronically. Once in or disclose or provide information to or proposed information collection as the system, select ‘‘docket search,’’ then for a Federal agency. This includes the described below. key in the docket ID number identified time needed to review instructions; DATES: Comments must be submitted on above. Please note that EPA’s policy is develop, acquire, install, and utilize or before January 10, 2011. that public comments, whether technology and systems for the purposes submitted electronically or in paper, ADDRESSES: Submit your comments, of collecting, validating, and verifying will be made available for public referencing Docket ID No. EPA–HQ– information, processing and viewing at http://www.regulations.gov OAR–2007–0563, to (1) EPA online maintaining information, and disclosing as EPA receives them and without using http://www.regulations.gov (our and providing information; adjust the change, unless the comment contains preferred method), by e-mail to a-and- existing ways to comply with any copyrighted material, Confidential [email protected], or by mail to: EPA previously applicable instructions and Business Information (CBI), or other requirements which have subsequently Docket Center, Environmental information whose public disclosure is Protection Agency, Air and Radiation changed; train personnel to be able to restricted by statute. For further respond to a collection of information; Docket and Information Center, Mail information about the electronic docket, Code 2822T, 1200 Pennsylvania Ave., search data sources; complete and go to http://www.regulations.gov. review the collection of information; NW., Washington, DC 20460, and (2) Title: National Volatile Organic OMB by mail to: Office of Information and transmit or otherwise disclose the Compound Emission Standards for information. and Regulatory Affairs, Office of Consumer Products (Renewal). Management and Budget (OMB), Respondents/Affected Entities: ICR numbers: EPA ICR No. 1764.04, Manufacturers and importers of Attention: Desk Officer for EPA, 725 OMB Control No. 2060–0348. 17th Street, NW., Washington, DC consumer products. ICR Status: This ICR is scheduled to Estimated Number of Respondents: 20503. expire on February 28, 2011. Under 732. OMB regulations, the Agency may FOR FURTHER INFORMATION CONTACT: Mr. Frequency of Response: On occasion. continue to conduct or sponsor the Michael K. Ciolek, U.S. Environmental Estimated Total Annual Hours collection of information while this Protection Agency, Office of Air Quality Burden: 29,613 hours. submission is pending at OMB. An Planning and Standards, Sector Policies Estimated Total Annual Costs: Agency may not conduct or sponsor, and Programs Division, Natural $1,187,537. This includes labor costs of and a person is not required to respond Resources and Commerce Group (D243– $1,187,537 and no capital or O&M costs. to, a collection of information, unless it 05), Research Triangle Park, North Changes in Estimates: There is no displays a currently valid OMB control Carolina 27711; telephone number: change in the total estimated burden (919) 541–4921; fax number: (919) 541– number. The OMB control numbers for EPA’s regulations in title 40 of the CFR, currently identified in the OMB 1039; e-mail address: Inventory of Approved Burdens. [email protected]. after appearing in the Federal Register when approved, are listed in 40 CFR However, the estimated total annual SUPPLEMENTARY INFORMATION: part 9, are displayed either by costs are increased by $91,828 due to Previously, EPA submitted the ICR for publication in the Federal Register or increased costs of employment this rulemaking to OMB for review and by other appropriate means, such as on compensation since the previous approval according to the procedures the related collection instrument or approval. prescribed in 5 CFR 1320.12. On August form, if applicable. The display of OMB Dated: November 3, 2010. 2, 2007 (72 FR 42409), EPA sought control numbers in certain EPA Penny Lassiter, comments on this ICR pursuant to 5 regulations is consolidated in 40 CFR Acting Director, Sectors Policies and CFR 1320.8(d). EPA received no part 9. Programs Division. comments during the comment period. Abstract: The information collection [FR Doc. 2010–28266 Filed 11–8–10; 8:45 am] Any additional comments on this ICR includes initial reports and periodic BILLING CODE 6560–50–P renewal should be submitted to EPA recordkeeping necessary for EPA to and OMB within 30 days of this notice. ensure compliance with Federal EPA has established a public docket standards for volatile organic ENVIRONMENTAL PROTECTION for this ICR under Docket ID No. EPA– compounds in consumer products. AGENCY HQ–OAR–2007–0563, which is Respondents are manufacturers, available for online viewing at http:// distributors, and importers of consumer [FRL–9223–5] www.regulations.gov, or in person products. Responses to the collection Clean Water Act Section 303(d): viewing at the Air and Radiation Docket are mandatory under 40 CFR part 59, Availability of List Decisions in the EPA Docket Center (EPA/DC), subpart C, National Volatile Organic EPA West, Room 3334, 1301 Compound Emission Standards for AGENCY: Environmental Protection Constitution Ave., NW., Washington, Consumer Products. All information Agency (EPA). DC. The EPA/DC Public Reading Room submitted to the EPA for which a claim ACTION: Notice of availability. is open from 8 a.m. to 4:30 p.m., of confidentiality is made will be Monday through Friday, excluding legal safeguarded according to the Agency SUMMARY: This action announces the holidays. The telephone number for the policies set forth in 40 CFR part 2, availability of EPA decisions identifying Reading Room is 202–566–1744, and the subpart B, Confidentiality of Business water quality limited segments and telephone number for the Air and Information. associated pollutants in California to be Radiation Docket is 202–566–1742. Burden Statement: The annual public listed pursuant to Clean Water Act Use EPA’s electronic docket and reporting and recordkeeping burden for section 303(d)(2), and requests public comment system at http:// this collection of information is comment. Section 303(d)(2) requires www.regulations.gov, to submit or view estimated to average 40 hours per that States submit and EPA approve or

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disapprove lists of waters for which CWA (40 CFR 130.7). The regulations 1200 Pennsylvania Ave., NW., existing technology-based pollution require States to identify water quality Washington, DC 20460. controls are not stringent enough to limited waters still requiring TMDLs Instructions: Direct your comments to attain or maintain State water quality every two years. The lists of waters still Attn: Docket ID No. EPA–HQ–OAR– standards and for which total maximum needing TMDLs must also include 2010–0712. The Agency’s policy is that daily loads (TMDLs) must be prepared. priority rankings and must identify the all comments received will be included On November 9, 2010, EPA approved waters targeted for TMDL development in the public docket without change and California’s 2008–2010 submitted 303(d) during the next two years (40 CFR may be made available online at list of impaired waters and associated 130.7). Consistent with EPA’s http://www.regulations.gov, including pollutants and disapproved California’s regulations, EPA received California’s any personal information provided, decisions not to list several water submittal of its listing decisions under unless the comment includes quality limited segments as impaired Section 303(d)(2) on October 15, 2010. information claimed to be Confidential and additional associated pollutants for Dated: November 1, 2010. Business Information (CBI) or other several others. EPA identified these information whose disclosure is Alexis Strauss, additional water bodies and pollutants restricted by statute. Do not submit for inclusion on the State’s 2008–2010 Director, Water Division, Region IX. information that you consider to be CBI section 303(d) list. The waterbodies and [FR Doc. 2010–28263 Filed 11–8–10; 8:45 am] or otherwise protected through http:// associated pollutants are identified in BILLING CODE 6560–50–P www.regulations.gov or e-mail. The Table 1 of the decision document http://www.regulations.gov Web site is available at the Web site link provided an ‘‘anonymous access’’ system, which below. ENVIRONMENTAL PROTECTION means EPA will not know your identity EPA is providing the public the AGENCY or contact information unless you opportunity to review its decisions to provide it in the body of your comment. [EPA–HQ–OAR–2010–0712; FRL–9224–3] add waters and pollutants to California’s If you send an e-mail comment directly 2008–2010 section 303(d) list, as Healthy Indoor Environment Protocols to EPA without going through http:// required by EPA’s Public Participation for Home Energy Upgrades www.regulations.gov your e-mail regulations. EPA will consider public address will be automatically captured comments received, and may revise its AGENCY: Environmental Protection and included as part of the comment decision if appropriate. EPA solicits Agency (EPA). that is placed in the public docket and public comment only on the additional ACTION: Notice of availability. made available on the Internet. If you waters and associated pollutants for submit an electronic comment, EPA inclusion on California’s 2008–2010 SUMMARY: The Environmental Protection recommends that you include your Section 303(d) list. Agency (EPA or the Agency) is name and other contact information in DATES: Comments must be submitted to announcing the availability of, and the body of your comment and with any EPA on or before December 9, 2010. soliciting public comments for 30 days, disk or CD–ROM you submit. If EPA FOR FURTHER INFORMATION CONTACT: on voluntary Healthy Indoor cannot read your comment due to Comments on the proposed decisions Environment Protocols for Home Energy technical difficulties and cannot contact should be sent to Valentina Cabrera Upgrades, in conjunction with the you for clarification, EPA may not be Stagno, Water Division (WTR–2), U.S. availability of the Department of Energy able to consider your comment. Environmental Protection Agency (DOE) Workforce Guidelines for Home Electronic files should avoid the use of Region IX, 75 Hawthorne Street, San Energy. The EPA protocols are intended special characters, any form of Francisco, CA 94105, telephone (415) for voluntary adoption by encryption, and be free of any defects or 972–3434, facsimile (415) 947–3537, e- weatherization assistance programs, viruses. For additional information mail [email protected]. Federally funded housing programs, about EPA’s public docket visit the EPA Oral comments will not be considered. private sector home performance Docket Center homepage at http:// Material concerning California’s 303(d) contracting organizations, and others www.epa.gov/epahome/dockets.htm. list which explain the rationale for working on residential retrofit or Docket: All documents in the docket EPA’s decisions are available on EPA remodeling efforts. are listed in the http:// Region IX’s Web site at http:// DATES: Comments must be received on www.regulations.gov index. Although www.epa.gov/region9/water/tmdl/ or before December 9, 2010. listed in the index, some information is california.html or by writing or calling ADDRESSES: A draft of the EPA Protocols not publicly available, e.g., CBI or other Valentina Cabrera Stagno. Underlying is available for review and public information whose disclosure is documentation comprising the record comment at: http://www.epa.gov/iaq/ restricted by statute. Certain other for these decisions is available for homes/retrofits.html. material, such as copyrighted material, public inspection at the above address. Submit your comments, identified by will be publicly available only in hard SUPPLEMENTARY INFORMATION: Section Docket ID No. EPA–HQ–OAR–2010– copy. Publicly available docket 303(d) of the Clean Water Act (CWA) 0712, by one of the following methods: materials are available electronically at requires that each State identify those • http://www.regulations.gov: Follow http://www.regulations.gov. As waters for which existing technology- the on-line instructions for submitting provided in EPA’s regulations at 40 CFR based pollution controls are not comments. Note, although comments on part 2, and in accordance with normal stringent enough to attain or maintain the EPA protocols can be submitted EPA docket procedures, if copies of any State water quality standards. For those through this Federal Web site, the EPA docket materials are requested, a waters, States are required to establish protocols are not a Federal regulation. reasonable fee may be charged for TMDLs according to a priority ranking. • E-mail: to [email protected]. photocopying. EPA’s Water Quality Planning and • Fax: 202–566–1741. FOR FURTHER INFORMATION CONTACT: Eric Management regulations include • Mail: Air and Radiation Docket and Werling, Indoor Environments Division, requirements related to the Information Center, Environmental Mail Code 6609J, U.S. Environmental implementation of Section 303(d) of the Protection Agency, Mailcode: 6102T, Protection Agency, 1200 Pennsylvania

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Avenue, Washington, DC 20460; and coordinate efforts at the Federal, Upgrades in response to this telephone number: 202–343–9495; fax State, and local levels. The main recommendation, in concert with EPA’s number: 202–343–2394; e-mail address: objectives of the EPA Indoor development of Healthy Indoor [email protected]. Environments program include the Environment Protocols for Home Energy SUPPLEMENTARY INFORMATION: protection of public health by Upgrades. promoting healthy environments; Together, the DOE and EPA I. General Information development and implementation of documents will: Provide a robust and A. What should I consider as I prepare control strategies which would prevent, practical set of resources for retrofit my comments for EPA? diagnose, abate, and mitigate indoor contractors, trainers, and program pollution, including the development 1. Submitting CBI. Do not submit this administrators; help improve the quality and dissemination of guidance on those of the work performed in this expanding information to EPA through http:// aspects of building design and www.regulations.gov or e-mail. Clearly industry; promote occupant health and construction, operation and safety; and drive consumer demand for mark the part or all of the information maintenance that affect the indoor that you claim to be CBI. For CBI energy efficiency retrofit services. EPA environment; and the development and encourages reviewers with broader information in a disk or CD ROM that dissemination of information to educate you mail to EPA, mark the outside of the interest in home energy retrofits to also key audiences about indoor air review the DOE Workforce Guidelines, disk or CD ROM as CBI and then pollution and its associated health risks, identify electronically within the disk or available for public comment until mitigation, and control strategies. Using January 7, 2011 [http:// CD ROM the specific information that is the best science available, EPA develops claimed as CBI). In addition to one www.weatherization.energy.gov/ and disseminates information, guidance retrofit_guidelines]. complete version of the comment that and solution-oriented technologies and includes information claimed as CBI, a serves as a catalyst for action by guiding A. Why is EPA developing voluntary copy of the comment that does not research, using innovative and creative Healthy Indoor Environment Protocols contain the information claimed as CBI risk communication tools and by for Home Energy Upgrades? must be submitted for inclusion in the building public-private partnerships. Millions of American homes will be public docket. Information so marked As part of these responsibilities, EPA will not be disclosed except in retrofitted in the coming years to is developing voluntary Healthy Indoor improve energy efficiency or make them accordance with procedures set forth in Environment Protocols for Home Energy more ‘‘green.’’ Integrated healthy home 40 CFR part 2. Upgrades. These protocols are intended and energy efficiency retrofit activities 2. Tips for Preparing Your Comments. for voluntary adoption by can lower utility costs for Americans When submitting comments, remember weatherization assistance programs, and improve indoor air quality in homes to: Federally funded housing programs, at the same time. However, there is the • Identify the review document by private sector home performance potential for weatherization and other docket number and other identifying contracting organizations, and others energy efficiency retrofit activities to information (subject heading, Federal working on residential energy efficiency negatively impact indoor air quality and Register date and page number). retrofits, remodeling or other home public health—if the appropriate home • Follow directions—The agency may improvement efforts. A draft is now assessment is not made before work ask you to respond to specific questions available for review and comment. All or organize comments by referencing a of this information—including the draft begins and issues that may impact section or page number of the review document and additional comment- indoor air quality are not appropriately document. submitting instructions—can be found addressed. These Protocols provide • Explain why you agree or disagree; on the Agency’s Indoor Air Quality Web guidance for conducting such home suggest alternatives and substitute site at: http://www.epa.gov/iaq/homes/ assessments and also provide the language for your requested changes. retrofits.html. specific responses necessary to maintain • Describe any assumptions and Concurrently, in May 2009, the Vice or improve indoor air quality in provide any technical information and/ President’s Middle Class Task Force conjunction with energy efficiency or data that you used. asked the White House Council on retrofits or other remodeling activities. • If you estimate potential costs or Environmental Quality (CEQ) to develop The Protocols are intended to enhance burdens, explain how you arrived at recommendations for Federal action to the ability of other Federal agencies, your estimate in sufficient detail to lay the architecture for a self-sustaining industry standard organizations, State allow for it to be reproduced. home energy efficiency retrofit industry. and local programs, and the home • Provide specific examples to In response, CEQ facilitated a broad energy retrofit industry (i.e., home illustrate your concerns, and suggest interagency process that resulted in the weatherization, energy efficiency alternatives. development of six recommendations retrofit, and housing rehabilitation • Explain your views as clearly as described in detail in a report titled professionals) to better integrate health possible, avoiding the use of profanity Recovery Through Retrofit.1 These protections into energy focused or personal threats. recommendations were carefully crafted programs. The Protocols apply to single • Make sure to submit your to stimulate the growth of a vibrant, family and multi-family low-rise comments by the comment period private sector-led market for residential residential dwellings. These Protocols deadline identified. energy efficiency retrofits. They include provide recommended minimum specifications and additional best II. Background establishment of a uniform set of national guidelines to promote high- practices for protection of occupant Title IV of the Superfund quality, safe and healthy energy health and, together with better Amendments and Reauthorization Act efficiency retrofit work. DOE developed resources for contractors, will facilitate of 1986 (SARA) gave EPA broad Workforce Guidelines for Home Energy increased home energy efficiency, authorization to coordinate research in improve the quality of the work indoor air quality, develop and 1 http://www.whitehouse.gov/sites/default/files/ performed, and reduce failures and call- disseminate information of the subject, Recovery_Through_Retrofit_Final_Report.pdf. backs for contractors.

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B. Why are better health protections This document DOES NOT: performance standards, and needed for home energy retrofits? • Set new EPA regulatory standards; supplemental guidance information. • Low-income weatherization and Provide guidance for diagnosing In addition, EPA anticipates the need private sector home performance occupant health problems or building- for supplemental assessment tools such contracting programs reduce energy related illness; as worksheets and checklists, to help • bills, improve comfort, and often Replace the need for training or assessors and contractors manage improve health and safety in the homes training documents; or critical job information. Therefore, EPA • of many American families. These Provide detailed guidance on how plans to develop sample assessment activities should never adversely affect to achieve the intent of each tools to accompany these protocols, a home’s indoor environment, occupant recommendation in all situations. such as the following sample tool health, or worker health and safety. The The document is organized to concepts: most urgent public health issues related highlight priority health concerns that • Sample Mold and Moisture to home energy retrofits, such as may relate to home energy efficiency Assessment Form. combustion safety, already have retrofits. Priority issues are identified • Sample Radon Testing and rigorous standards in place that are based on whether they are known to Assessment Form. enforced through program requirements pose significant health risks to • and processes. However, there are other occupants and whether they can be Sample Home Ventilation public health issues that can be affected affected by energy efficiency retrofit Worksheet. activities. For each ‘‘Priority Issue’’ by home energy retrofits and remodeling D. How is EPA recommending the identified in Column 1, the matrix work such as occupant exposure to protocols be used? moisture/mold, radon, and lead. These identifies the following: draft Healthy Indoor Environment 1. ‘‘Assessment Protocols’’ in Column These protocols were developed to Protocols provide guidance on how best 2 provide EPA-recommended assist weatherization assistance to address these issues and the steps assessment protocols for evaluating both programs and other home energy retrofit necessary to maintain or improve indoor existing conditions of concern and the and remodeling programs to fill in gaps air quality while making energy potential for additional health concerns in their program standards related to efficiency home improvements. that may arise as a result of retrofit indoor environment health protections, Adoption of the EPA Protocols and activities. EPA anticipates and provide additional guidance for other protective guidelines such as the recommending adoption of the those able to go beyond recommended DOE Workforce Guidelines will help assessment protocols into minimum health protections. EPA minimize the potential unintended weatherization and home energy retrofit recommends that these protocols (and health impacts of retrofit and assessment and audit standards and supplemental tools) be voluntarily remodeling activities. materials. adopted in whole or in part, for the Fortunately, the expansion of the 2. ‘‘Minimum Actions’’ in Column 3 following purposes: DOE’s weatherization assistance include actions that weatherization and • To help develop or enhance program (WAP) through the American home energy retrofit contractors should standardized training program Recovery and Reinvestment Act (ARRA) take to ensure that the work they requirements. of 2009, and other home energy retrofit perform in a home does not introduce • To help refine and update program initiatives provide unique opportunities new health concerns or make existing performance standards, materials, and to simultaneously improve the energy conditions worse. These often reference resources to better protect occupant efficiency and the healthfulness of existing standards. EPA anticipates health. American homes. Integrated healthy recommending adoption of the • home and retrofit activities can lower minimum actions into weatherization To inform revisions to program utility costs for Americans, while and home energy retrofit standards and funding rules (i.e., change allowable improving the indoor air quality in materials, and removal or modification expenses for health and safety as millions of homes. EPA is working with of program rules that prohibit these appropriate). DOE and other programs to identify recommended actions. Specifically, EPA anticipates opportunities to reduce or eliminate 3. ‘‘Expanded Actions’’ in Column 4 recommending the following for barriers to incorporating more health include recommended indoor weatherization assistance and home protective best practices into energy environment improvements that can be energy retrofit programs: made during many home energy retrofit efficiency retrofit programs. These 1. Adoption of the assessment projects. The expanded actions are protocols, when finalized will serve as protocols into weatherization assistance usually low-cost, simple improvements a core set of practices that can be and other home energy retrofit program that can be performed by home energy integrated into evolving program assessment or audit standards, standards, training curricula and other retrofit workers with proper training elements of energy efficiency retrofit and sufficient resources. EPA 2. Adoption of the minimum actions programs. anticipates recommending into weatherization assistance and other incorporation of the expanded actions home energy retrofit program standards, C. What information is included in the into weatherization assistance program and removal or modification of program DRAFT protocols? and other home energy retrofit program rules that prohibit these recommended This DRAFT document includes guidance and training materials, and minimum actions, recommended protocols for assessment collaboration to help overcome barriers 3. Incorporation of the expanded of indoor environmental quality issues, to these recommended healthy homes actions into weatherization assistance recommended minimum actions, and actions. and other home energy retrofit program recommended expanded actions to Additional resources (standards, guidance and training materials, and promote improved occupant health guidelines, etc.) have been included for collaboration to help overcome barriers through home energy retrofits. Each of further information on each issue, to these recommended healthy homes these is described below. including recommended assessment and actions.

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Dated: November 4, 2010. the CAA on the public health, economy, the draft Council report (dated October Michael P. Flynn, and environment of the United States. 4, 2010) will be posted on the Council Director, Office of Radiation and Indoor Air. The Council is a Federal Advisory Web site at (http://www.epa.gov/ [FR Doc. 2010–28375 Filed 11–8–10; 8:45 am] Committee chartered under FACA, and advisorycouncilcaa) prior to the BILLING CODE 6560–50–P complies with the provisions of FACA meeting. and all appropriate SAB Staff Office Procedures for Providing Public Input: procedural policies. Public comment for consideration by ENVIRONMENTAL PROTECTION Pursuant to Section 812 of the 1990 EPA’s Federal advisory committees and AGENCY Clean Air Act Amendments (CAAA), panels has a different purpose from EPA conducts periodic studies to assess public comment provided to EPA [FRL–9223–9] benefits and costs of the EPA’s program offices. Therefore, the process regulatory actions under the Clean Air for submitting comments to a Federal Science Advisory Board Staff Office; Act. The Council has provided advice advisory committee is different from the Notification of a Public Teleconference on an EPA retrospective study process used to submit comments to an of the Advisory Council on Clean Air published in 1997 and an EPA EPA program office. Federal advisory Compliance Analysis (Council) prospective study completed in 1999. committees and panels, including AGENCY: Environmental Protection EPA’s Office of Air and Radiation (OAR) scientific advisory committees, provide Agency (EPA). requested the Council’s review of a independent advice to EPA. Members of ACTION: Notice. second prospective study to evaluate the the public can submit comments for a benefits and costs of EPA Clean Air Federal advisory committee to consider SUMMARY: The EPA Science Advisory programs for years 1990–2020, as it develops advice for EPA. Interested Board (SAB) Staff Office announces a including a draft synthesis report and a members of the public may submit public teleconference of the Advisory draft summary document. relevant written or oral information for Council on Clean Air Compliance Previous Reviews: The Council and its the SAB to consider on the topics Analysis (Council). The Council will subcommittees have previously included in this advisory activity. discuss and finalize its draft advisory reviewed EPA documents prepared in Oral Statements: In general, document on the EPA Office of Air and support of the Office of Air and individuals or groups requesting an oral Radiation’s Second Section 812 Radiation’s Second Section 812 presentation at a public teleconference Prospective Analysis of the benefits and Prospective Study, and the advisory will be limited to three minutes per costs of the Clean Air Act. reports from these activities are speaker, with no more than a total of DATES: The teleconference will be held available on the Council Web site at one-half hour for all speakers. Each on Monday, November 22, 2010 from 11 (http://www.epa.gov/ person making an oral statement should a.m. to 1 p.m. (Eastern Time). advisorycouncilcaa). As announced consider providing written comments so previously (Federal Register, Vol 75, that the points presented orally can be ADDRESSES: The teleconference will be held by telephone only. Number 153, Page 48327), the Council expanded upon in writing. Interested met on September 2–3, 2010 to review individuals should contact Ms. FOR FURTHER INFORMATION CONTACT: a final draft of the Agency document, Sanzone, DFO, in writing (preferably via Members of the public who wish to Second Section 812 Prospective Study e-mail) at the contact information noted obtain further information about this of the Benefits and Costs of the Clean above by November 17, 2010, to be meeting may contact Ms. Stephanie Air Act and a draft Summary Report. As placed on a list of public speakers for Sanzone, Designated Federal Officer a result of discussions and deliberation the November 22, 2010 teleconference. (DFO), EPA Science Advisory Board at the September meeting, the Council Written Statements: Written statements Staff Office (1400R), U.S. Environmental has developed a draft advisory report for the November 22, 2010 Protection Agency, 1200 Pennsylvania (dated October 4, 2010) to convey its teleconference should be supplied to the Avenue, NW., Washington, DC 20460; comments and advice to the Agency on DFO via e-mail at the contact by telephone/voice mail: (202) 564– the draft EPA documents. The purpose information noted above, by November 2067 or e-mail at of the November 22, 2010 17, 2010, so that the information may be [email protected]. General teleconference is for the Council to made available to the SAB Committee information about the Council may be discuss and finalize its report to the members for their consideration and found on the Council Web site at Agency on the Second Prospective placed on the SAB Web site for public http://www.epa.gov/advisorycouncilcaa. Study. Background information on this information. Written statements should SUPPLEMENTARY INFORMATION: advisory activity is available on the be supplied to the DFO in the following Background: Pursuant to the Federal Council Web site at http://yosemite.epa. formats: One hard copy with original Advisory Committee Act (FACA), 5 gov/sab/sabproduct.nsf/fedrgstr_ signature, and one electronic copy via e- U.S.C., App. 2, notice is hereby given activites/2nd%20Prospective%20812% mail (acceptable file format: Adobe that the Advisory Council on Clean Air 20Study?OpenDocument. Acrobat PDF, WordPerfect, MS Word, Compliance Analysis (Council) will Technical Contacts: The Office of Air MS PowerPoint, or Rich Text files in hold a public meeting to discuss and and Radiation technical contact for the IBM–PC/Windows 98/2000/XP format). approve its draft report (dated October Second Section 812 Benefit-Cost Submitters are asked to provide versions 4, 2010) entitled, Review of the Second Analysis of the Clean Air Act is Mr. Jim of each document submitted with and Section 812 Prospective Study of the DeMocker at (202) 564–1673 or without signatures, because the SAB Benefits and Costs of the Clean Air Act. [email protected]. Staff Office does not publish documents The Council was established in 1991 Availability of Meeting Materials: with signatures on its Web sites. pursuant to the Clean Air Act (CAA) Draft EPA documents provided to the Accessibility: For information on Amendments of 1990 (see 42 U.S.C. Council are available at http:// access or services for individuals with 7612) to provide advice, information www.epa.gov/oar/sect812/ disabilities, please contact Ms. Sanzone and recommendations on technical and prospective2.html and on the Council at (202) 564–2067, or via e-mail at economic aspects of analyses and Web Site. The meeting agenda for the [email protected], preferably reports EPA prepares on the impacts of November 22, 2010 teleconference and at least ten (10) days prior to the

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meeting, to give EPA as much time as EQUAL EMPLOYMENT OPPORTUNITY Act (PRA) of 1995 (44 U.S.C. 3501– possible to process your request. COMMISSION 3520), the Federal Communications Dated: November 2, 2010. Commission invites the general public Sunshine Act; Notice of Meeting Anthony Maciorowski, and other Federal agencies to comment on the following information Deputy Director, EPA Science Advisory Board DATE AND TIME: Wednesday, November Staff Office. collection(s). Comments are requested 17, 2010, 10 a.m. Eastern Time. concerning (a) Whether the proposed [FR Doc. 2010–28265 Filed 11–8–10; 8:45 am] PLACE: Commission Meeting Room on collection of information is necessary BILLING CODE 6560–50–P the First Floor of the EEOC Office for the proper performance of the Building, 131 ‘‘M’’ Street, NE., functions of the Commission, including Washington, DC 20507. ENVIRONMENTAL PROTECTION whether the information shall have AGENCY STATUS: The meeting will be open to the practical utility; (b) the accuracy of the public. Commission’s burden estimate; (c) ways to enhance the quality, utility, and [Docket# EPA–RO4–SFUND–2010–0893, Matters To Be Considered clarity of the information collected; (d) FRL–9223–8] Open Session ways to minimize the burden of the collection of information on the Ore Knob Mine Superfund Site; 1. Announcement of Notation Votes, respondents, including the use of Jefferson, Ashe County, North and Carolina; Notice of Settlement 2. The Pressing Problem of Age automated collection techniques or Discrimination in Today’s Economic other forms of information technology, AGENCY: Environmental Protection Times. and (e) ways to further reduce the Agency. information collection burden for small Note: In accordance with the Sunshine Act, business concerns with fewer than 25 ACTION: Notice of settlement. the meeting will be open to public employees. The FCC may not conduct or observation of the Commission’s sponsor a collection of information SUMMARY: Under Section 122(h)(1) of the deliberations and voting. Seating is limited unless it displays a currently valid OMB Comprehensive Environmental and it is suggested that visitors arrive 30 control number. No person shall be Response, Compensation and Liability minutes before the meeting in order to be subject to any penalty for failing to Act (CERCLA), the United States processed through security and escorted to comply with a collection of information Environmental Protection Agency has the meeting room. (In addition to publishing notices on EEOC Commission meetings in the subject to the Paperwork Reduction Act entered into a settlement for Federal Register, the Commission also that does not display a valid OMB reimbursement of past response costs provides information about Commission control number. concerning the Ore Knobe Mine meetings on its Web site, http://eeoc.gov., DATES: Superfund Site located in Jefferson, and provides a recorded announcement a Written PRA comments should Ashe County, North Carolina for week in advance on future Commission be submitted on or before January 10, publication. sessions.) 2011. If you anticipate that you will be Please telephone (202) 663–7100 (voice) submitting comments, but find it DATES: The Agency will consider public and (202) 663–4074 (TTY) at any time for difficult to do so within the period of comments on the settlement until information on these meetings. The EEOC time allowed by this notice, you should December 9, 2010. The Agency will provides sign language interpretation and advise the contact listed below as soon consider all comments received and Communication Access Realtime Translation as possible. (CART) services at Commission meetings for may modify or withdraw its consent to ADDRESSES: Direct all PRA comments to the settlement if comments received the hearing impaired. Requests for other reasonable accommodations may be made by Nicholas A. Fraser, Office of disclose facts or considerations which using the voice and TTY numbers listed Management and Budget, via fax at indicate that the settlement is above. (202) 395–5167 or via e-mail to inappropriate, improper, or inadequate. [email protected] and CONTACT PERSON FOR MORE INFORMATION: ADDRESSES: Copies of the settlement are to the Federal Communications Stephen Llewellyn, Executive Officer at Commission via e-mail to [email protected] available from Ms. Paula V. Painter. (202) 663–4070. Submit your comments, identified by and [email protected]. Docket ID No. EPA–RO4–SFUND–2010– Dated: November 5, 2010. FOR FURTHER INFORMATION CONTACT: For 0893 or Site name Ore Knob Mine Stephen Llewellyn, additional information about the Superfund Site by one of the following Executive Officer, Executive Secretariat. information collection(s), contact Cathy methods: [FR Doc. 2010–28398 Filed 11–5–10; 4:15 pm] Williams at (202) 418–2918 or send an • http://www.regulations.gov: Follow BILLING CODE 6570–01–P e-mail to [email protected]. the on-line instructions for submitting SUPPLEMENTARY INFORMATION: OMB comments. Control Number: 3060–0084. Title: Ownership Report for • http://www.epa.gov/region4/waste/ FEDERAL COMMUNICATIONS Noncommercial Educational Broadcast sf/enforce.htm COMMISSION Station, FCC Form 323–E. • E-mail. [email protected]. Notice of Public Information Form Number: FCC Form 323–E. FOR FURTHER INFORMATION CONTACT: Collection(s) Being Reviewed by the Type of Review: Extension of a Paula V. Painter at 404/562–8887. Federal Communications Commission currently approved collection. for Extension Under Delegated Respondents: Not-for-profit Dated: October 22, 2010. Authority, Comments Requested institutions. Anita L. Davis, Number of Respondents and Chief, Superfund Enforcement & Information November 2, 2010. Responses: 2,636 respondents, 2,636 Management Branch, Superfund Division. SUMMARY: As part of its continuing effort responses. [FR Doc. 2010–28260 Filed 11–8–10; 8:45 am] to reduce paperwork burden and as Estimated Time per Response: One BILLING CODE 6560–50–P required by the Paperwork Reduction hour.

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Frequency of Response: On occasion, Agent at (972) 761–8677. Written PLACE: 999 E Street, NW., Washington, biennial, and other reporting correspondence may also be mailed to DC (Ninth Floor) requirements. FDIC as Receiver of BankUnited, FSB, STATUS: This meeting will be open to Total Annual Burden: 2,636. Attention: Claims Agent, 1601 Bryan the public. Total Annual Cost: $1,581,600. Street, Dallas, Texas 75201. ITEMS TO BE DISCUSSED: Obligation to Respond: Required to SUPPLEMENTARY INFORMATION: On May Correction and Approval of Minutes obtain or retain benefits. The statutory 21, 2009, BankUnited, FSB, Coral for the Meetings of September 23 and authority for this collection is contained Gables, Florida, (FIN # 10061) was October 7, 2010. in Sections 154(i), 308 and 310 of the closed by the Office of Thrift Draft Advisory Opinion 2010–23: Communications Act of 1934, as Supervision, and the Federal Deposit CTIA—The Wireless Association by its amended. Insurance Corporation (‘‘FDIC’’) was counsel, Jan Witold Baran, Esq. and Nature and Extent of Confidentiality: appointed as its receiver (‘‘Receiver’’). In Caleb P. Burns, Esq. of Wiley Rein LLP. There is no need for confidentiality with complying with its statutory duty to Management and Administrative this collection of information. resolve the institution in the method Matters. Privacy Impact Assessment(s): No that is least costly to the deposit Individuals who plan to attend and impact(s). insurance fund (see 12 U.S.C. require special assistance, such as sign Needs and Uses: Each licensee/ 1823(c)(4)), the FDIC facilitated a language interpretation or other permittee of a noncommercial FM and transaction with a newly chartered reasonable accommodations, should TV broadcast station is required to file Federal savings bank, BankUnited, Coral contact Lisa Chapman, Recording an Ownership Report for Gables, Florida, to acquire most of the Secretary, at (202) 694–1040, at least 72 Noncommercial Educational Broadcast assets and liabilities of the failed hours prior to the hearing date. Station, FCC Form 323–E, within 30 institution. PERSON TO CONTACT FOR INFORMATION: days of the date of grant by the FCC of Section 11(d)(11)(A) of the FDI Act, Judith Ingram, Press Officer, Telephone: an application for an original 12 U.S.C. 1821(d)(11)(A), sets forth the (202) 694–1220. construction permit. In addition, order of priority for distribution of licensee must file FCC Form 323–E Signed: amounts realized from the liquidation or Shawn Woodhead Werth, biennially on the anniversary of the other resolution of an insured Secretary and Clerk of the Commission. application filing date for the station depository institution to pay claims. license renewal. Each licensee with a Under the statutory order of priority, [FR Doc. 2010–28223 Filed 11–8–10; 8:45 am] current, unmodified FCC Form 323–E administrative expenses and deposit BILLING CODE 6715–01–M on file with the Commission may liabilities must be paid in full before electronically review its current Report, any distribution may be made to general validate its accuracy, and be relieved of unsecured creditors or any lower FEDERAL RESERVE SYSTEM the obligation to file a new Biennial priority claims. Formations of, Acquisitions by, and Ownership Report. The FCC 323–E must As of June 30, 2010, the value of Mergers of Bank Holding Companies also be filed within 30 days of assets available for distribution by the consummating authorized assignments Receiver, together with all expected The companies listed in this notice or transfers of permits and licenses. recovery sources, including recoveries have applied to the Board for approval, Federal Communications Commission. on claims against directors, officers, and pursuant to the Bank Holding Company Marlene H. Dortch, other professionals, claims in Act of 1956 (12 U.S.C. 1841 et seq.) Secretary. bankruptcy, and refunds of Federal and (BHC Act), Regulation Y (12 CFR part [FR Doc. 2010–28285 Filed 11–8–10; 8:45 am] State taxes, was $4,321,339,716. As of 225), and all other applicable statutes BILLING CODE 6712–01–P the same date, administrative expenses and regulations to become a bank and depositor liabilities equaled holding company and/or to acquire the $8,120,876,686, exceeding available assets or the ownership of, control of, or FEDERAL DEPOSIT INSURANCE assets by $3,799,536,970. Accordingly, the power to vote shares of a bank or CORPORATION the FDIC has determined that bank holding company and all of the insufficient assets exist to make any banks and nonbanking companies Determination of Insufficient Assets To distribution on general unsecured owned by the bank holding company, Satisfy Claims Against Financial creditor claims (and any lower priority including the companies listed below. Institution in Receivership claims) and therefore all such claims, The applications listed below, as well asserted or unasserted, will recover as other related filings required by the AGENCY: Federal Deposit Insurance nothing and have no value. Board, are available for immediate Corporation (FDIC). Dated: November 4, 2010. inspection at the Federal Reserve Bank ACTION: Notice. Robert E. Feldman, indicated. The application also will be available for inspection at the offices of Executive Secretary. SUMMARY: The FDIC has determined that the Board of Governors. Interested insufficient assets exist in the [FR Doc. 2010–28226 Filed 11–8–10; 8:45 am] persons may express their views in receivership of BankUnited, FSB, Coral BILLING CODE 6714–01–P writing on the standards enumerated in Gables, Florida, to make any the BHC Act (12 U.S.C. 1842(c)). If the distribution to general unsecured proposal also involves the acquisition of claims, and therefore such claims will FEDERAL ELECTION COMMISSION a nonbanking company, the review also recover nothing and have no value. includes whether the acquisition of the DATES: The FDIC made its determination Sunshine Act Notices nonbanking company complies with the on November 2, 2010. standards in section 4 of the BHC Act FOR FURTHER INFORMATION CONTACT: If AGENCY: Federal Election Commission. (12 U.S.C. 1843). Unless otherwise you have questions regarding this DATE & TIME: Thursday, November 4, noted, nonbanking activities will be notice, you may contact an FDIC Claims 2010, at 10 a.m. conducted throughout the United States.

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Unless otherwise noted, comments DEPARTMENT OF HEALTH AND 65 and are citizens, and aliens who were regarding each of these applications HUMAN SERVICES lawfully admitted for permanent must be received at the Reserve Bank residence and have resided in the indicated or the offices of the Board of Centers for Medicare & Medicaid United States for 5 consecutive years. Governors not later than December 4, Services Part B requires enrollment and payment 2010. [CMS–8042–N] of monthly premiums, as described in 42 CFR part 407, subpart B, and part A. Federal Reserve Bank of Dallas (E. RIN 0938–AP81 408, respectively. The difference Ann Worthy, Vice President), 2200 between the premiums paid by all North Pearl Street, Dallas, Texas 75201– Medicare Program; Medicare Part B enrollees and total incurred costs is met 2272: Monthly Actuarial Rates, Premium by payments from the Supplementary Rate, and Annual Deductible 1. Bertram BancShares, Inc., Bertram, Medical Insurance Fund. Beginning January 1, 2011 Texas; to become a bank holding The Secretary of the Department of company by acquiring voting shares of AGENCY: Centers for Medicare & Health and Human Services (the Farmers State Bank, Bertram, Texas. Medicaid Services (CMS), HHS. Secretary) is required by section 1839 of the Social Security Act (the Act) to ACTION: Notice. Board of Governors of the Federal Reserve announce the Part B monthly actuarial System, November 4, 2010. SUMMARY: This notice announces the rates for aged and disabled beneficiaries Robert deV. Frierson, monthly actuarial rates for aged (age 65 as well as the monthly Part B premium. Deputy Secretary of the Board. and over) and disabled (under age 65) The Part B annual deductible is [FR Doc. 2010–28249 Filed 11–8–10; 8:45 am] beneficiaries enrolled in Part B of the included because its determination is BILLING CODE 6210–01–P Medicare Supplementary Medical directly linked to the aged actuarial rate. Insurance (SMI) program beginning The monthly actuarial rates for aged January 1, 2011. In addition, this notice and disabled enrollees are used to announces the monthly premium for determine the correct amount of general DEPARTMENT OF HEALTH AND aged and disabled beneficiaries as well revenue financing per beneficiary each month. These amounts, according to HUMAN SERVICES as the income-related monthly adjustment amounts to be paid by actuarial estimates, will equal, Centers for Disease Control and beneficiaries with modified adjusted respectively, one-half the expected Prevention gross income above certain threshold average monthly cost of Part B for each amounts. The monthly actuarial rates aged enrollee (age 65 or over) and one- half the expected average monthly cost [30 Day 11–0307] for 2011 are $230.70 for aged enrollees and $266.30 for disabled enrollees. The of Part B for each disabled enrollee (under age 65). Proposed Data Collections Submitted standard monthly Part B premium rate for 2011 is $115.40, which is equal to The Part B deductible to be paid by for Public Comment and enrollees is also announced. Prior to the Recommendations; Correction 50 percent of the monthly actuarial rate for aged enrollees or approximately 25 Medicare Prescription Drug, Improvement, and Modernization Act of Notice: Correction percent of the expected average total cost of Part B coverage for aged 2003 (MMA) (Pub. L. 108–173), the Part The Centers for Disease Control and enrollees. (The 2010 standard premium B deductible was set in statute. After Prevention published a document in the rate was $110.50.) The Part B deductible setting the 2005 deductible amount at Federal Register concerning an for 2011 is $162.00 for all Part B $110.00, section 629 of the MMA (amending section 1833(b) of the Act) information collection request. The beneficiaries. If a beneficiary has to pay requires that the Part B deductible be document contained two incorrect an income-related monthly adjustment, indexed beginning in 2006. The numbers. they may have to pay a total monthly inflation factor to be used each year is premium of about 35, 50, 65, or 80 the annual percentage increase in the FOR FURTHER INFORMATION CONTACT: percent of the total cost of Part B Part B actuarial rate for enrollees age 65 Carol Walker, 404–639–5960. coverage. and over. Specifically, the 2011 Part B Correction DATES: Effective Date: January 1, 2011. deductible is calculated by multiplying FOR FURTHER INFORMATION CONTACT: M. the 2010 deductible by the ratio of the In the Federal Register of November Kent Clemens, (410) 786–6391. 2011 aged actuarial rate over the 2010 2, 2011, Volume 75, Number 211, in FR SUPPLEMENTARY INFORMATION: aged actuarial rate. The amount Doc. fr02no10–59 page 67366, under the determined under this formula is then agency name correct the last sentence in I. Background rounded to the nearest $1. the Federal Register notice to read: The Part B is the voluntary portion of the The monthly Part B premium rate to total annual burden is estimated to be Medicare program that pays all or part be paid by aged and disabled enrollees 8,628, and in the burden table: of the costs for physicians’ services, is also announced. (Although the costs Laboratory Form 2 to read 1,452 outpatient hospital services, certain to the program per disabled enrollee are responses per respondent. home health services, services furnished different than for the aged, the statute Dated: November 3, 2010. by rural health clinics, ambulatory provides that they pay the same surgical centers, comprehensive premium amount.) Beginning with the Carol Walker, outpatient rehabilitation facilities, and passage of section 203 of the Social Acting Reports Clearance Officer, Centers for certain other medical and health Security Amendments of 1972 (Pub. L. Disease Control and Prevention. services not covered by Medicare Part 92–603), the premium rate, which was [FR Doc. 2010–28276 Filed 11–8–10; 8:45 am] A, Hospital Insurance. Medicare Part B determined on a fiscal year basis, was BILLING CODE P is available to individuals who are limited to the lesser of the actuarial rate entitled to Medicare Part A, as well as for aged enrollees, or the current to U.S. residents who have attained age monthly premium rate increased by the

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same percentage as the most recent Part A to Part B. Section 4611(e)(2) of income because they are paying a larger general increase in monthly Title II the BBA also provided a specific yearly share of the total cost with their social security benefits. proportion for the transferred funds. premium. That is, the premium subsidy However, the passage of section 124 The proportions were 1⁄6 for 1998, 1⁄3 for continues to be approximately 75 of the Tax Equity and Fiscal 1999, 1⁄2 for 2000, 2⁄3 for 2001, and 5⁄6 percent for beneficiaries with income Responsibility Act of 1982 (TEFRA) for 2002. For the purpose of determining below the applicable income thresholds, (Pub. L. 97–248) suspended this the correct amount of financing from but will be reduced for beneficiaries premium determination process. general revenues of the Federal with income above these thresholds. Section 124 of TEFRA changed the Government, it was necessary to include The MMA specified that there be a 5- premium basis to 50 percent of the only these transitional amounts in the year transition to full implementation of monthly actuarial rate for aged enrollees monthly actuarial rates for both aged this provision. However, section 5111 of (that is, 25 percent of program costs for and disabled enrollees, rather than the the Deficit Reduction Act of 2005 (Pub. aged enrollees). Section 606 of the total cost of the home health services L. 109–171) (DRA) modified the Social Security Amendments of 1983 being transferred. transition to a 3-year period. (Pub. L. 98–21), section 2302 of the Section 4611(e)(3) of the BBA also Section 4732(c) of the BBA added Deficit Reduction Act of 1984 (DEFRA specified, for the purpose of section 1933(c) of the Act, which 84) (Pub. L. 98–369), section 9313 of the determining the premium, that the required the Secretary to allocate money Consolidated Omnibus Budget monthly actuarial rate for enrollees age from the Part B trust fund to the State Reconciliation Act of 1985 (COBRA 85) 65 and over be computed as though the Medicaid programs for the purpose of (Pub. L. 9–272), section 4080 of the transition would occur for 1998 through providing Medicare Part B premium Omnibus Budget Reconciliation Act of 2003 and that 1⁄7 of the cost be assistance from 1998 through 2002 for 1987 (OBRA 87) (Pub. L. 100–203), and transferred in 1998, 2⁄7 in 1999, 3⁄7 in the low-income Medicaid beneficiaries section 6301 of the Omnibus Budget 2000, 4⁄7 in 2001, 5⁄7 in 2002, and 6⁄7 in who qualify under section 1933 of the Reconciliation Act of 1989 (OBRA 89) 2003. Therefore, the transition period Act. This allocation, while not a benefit (Pub. L. 101–239) extended the for incorporating this home health expenditure, was an expenditure of the provision that the premium be based on transfer into the premium was 7 years trust fund and was included in 50 percent of the monthly actuarial rate while the transition period for including calculating the Part B actuarial rates for aged enrollees (that is, 25 percent of these services in the actuarial rate was through 2002. For 2003 through 2007, program costs for aged enrollees). This 6 years. the expenditure was made from the trust extension expired at the end of 1990. Section 811 of the Medicare fund because the allocation was The premium rate for 1991 through Prescription Drug, Improvement, and temporarily extended. However, 1995 was legislated by section Modernization Act of 2003 (Pub. L. 108– because the extension occurred after the 1839(e)(1)(B) of the Act, as added by 173, also known as the Medicare financing was determined, the section 4301 of the Omnibus Budget Modernization Act, or MMA), which allocation was not included in the Reconciliation Act of 1990 (OBRA 90) amended section 1839 of the Act, calculation of the financing rates. (Pub. L. 101–508). In January 1996, the requires that, starting on January 1, A further provision affecting the premium determination basis would 2007, the Part B premium a beneficiary calculation of the Part B premium is have reverted to the method established pays each month be based on their section 1839(f) of the Act, as amended by the 1972 Social Security Act annual income. Specifically, if a by section 211 of the Medicare Amendments. However, section 13571 beneficiary’s ‘‘modified adjusted gross Catastrophic Coverage Act of 1988 of the Omnibus Budget Reconciliation income’’ is greater than the legislated (MCCA 88) (Pub. L. 100–360). (The Act of 1993 (OBRA 93) (Pub. L. 103–66) threshold amounts (for 2011, $85,000 Medicare Catastrophic Coverage Repeal changed the premium basis to 50 for a beneficiary filing an individual Act of 1989 (Pub. L. 101–234) did not percent of the monthly actuarial rate for income tax return, and $170,000 for a repeal the revisions to section 1839(f) aged enrollees (that is, 25 percent of beneficiary filing a joint tax return) the made by MCCA 88.) Section 1839(f) of program costs for aged enrollees) for beneficiary is responsible for a larger the Act, referred to as the ‘‘hold- 1996 through 1998. portion of the estimated total cost of harmless’’ provision, provides that if an Section 4571 of the Balanced Budget Part B benefit coverage. In addition to individual is entitled to benefits under Act of 1997 (BBA) (Pub. L. 105–33) the standard 25 percent premium, these section 202 or 223 of the Act (the Old- permanently extended the provision beneficiaries will now have to pay an Age and Survivors Insurance Benefit that the premium be based on 50 income-related monthly adjustment and the Disability Insurance Benefit, percent of the monthly actuarial rate for amount. The MMA made no change to respectively) and has the Part B aged enrollees (that is, 25 percent of the actuarial rate calculation, and the premiums deducted from these benefit program costs for aged enrollees). standard premium, which will continue payments, the premium increase will be The BBA included a further provision to be paid by beneficiaries whose reduced, if necessary, to avoid causing affecting the calculation of the Part B modified adjusted gross income is a decrease in the individual’s net actuarial rates and premiums for 1998 below the applicable thresholds, still monthly payment. This decrease in through 2003. Section 4611 of the BBA represents 25 percent of the estimated payment occurs if the increase in the modified the home health benefit total cost to the program of Part B individual’s social security benefit due payable under Part A for individuals coverage for an aged enrollee. However, to the cost-of-living adjustment under enrolled in Part B. Under this section, depending on income and tax filing section 215(i) of the Act is less than the beginning in 1998, expenditures for status, a beneficiary can now be increase in the premium. Specifically, home health services not considered responsible for 35, 50, 65, or 80 percent the reduction in the premium amount ‘‘post-institutional’’ are payable under of the estimated total cost of Part B applies if the individual is entitled to Part B rather than Part A. However, coverage, rather than 25 percent. The benefits under section 202 or 223 of the section 4611(e)(1) of the BBA required end result of the higher premium is that Act for November and December of a that there be a transition from 1998 the Part B premium subsidy is reduced particular year and the individual’s Part through 2002 for the aggregate amount and less general revenue financing is B premiums for December and the of the expenditures transferred from required for beneficiaries with higher following January are deducted from the

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respective month’s section 202 or 223 November’s monthly benefits, after the any reductions under section 1839(f) of benefits. The ‘‘hold-harmless’’ provision deduction of the Part B premium for the Act are made. does not apply to beneficiaries who are December; or II. Provisions of the Notice required to pay an income-related • The monthly premium for that monthly adjustment amount. individual for that December. A. Notice of Medicare Part B Monthly A check for benefits under section 202 In determining the premium Actuarial Rates, Monthly Premium or 223 of the Act is received in the limitations under section 1839(f) of the Rates, and Annual Deductible month following the month for which Act, the monthly benefits to which an The Medicare Part B monthly the benefits are due. The Part B individual is entitled under section 202 actuarial rates applicable for 2011 are premium that is deducted from a or 223 of the Act do not include $230.70 for enrollees age 65 and over particular check is the Part B payment retroactive adjustments or payments and and $266.30 for disabled enrollees for the month in which the check is deductions on account of work. Also, under age 65. Section II.B. of this notice received. Therefore, a benefit check for once the monthly premium amount is below, presents the actuarial November is not received until established under section 1839(f) of the assumptions and bases from which December, but has December’s Part B Act, it will not be changed during the these rates are derived. The Part B premium deducted from it. year even if there are retroactive standard monthly premium rate for Generally, if a beneficiary qualifies for adjustments or payments and 2011 is $115.40. The Part B annual hold-harmless protection, the reduced deductions on account of work that deductible for 2011 is $162.00. Listed premium for the individual for that apply to the individual’s monthly below are the 2011 Part B monthly January and for each of the succeeding benefits. premium rates to be paid by 11 months is the greater of the Individuals who have enrolled in Part beneficiaries who file an individual tax following— B late or who have re-enrolled after the return (including those who are single, • The monthly premium for January termination of a coverage period are head of household, qualifying reduced as necessary to make the subject to an increased premium under widow(er) with dependent child, or December monthly benefits, after the section 1839(b) of the Act. The increase married filing separately who lived deduction of the Part B premium for is a percentage of the premium and is apart from their spouse for the entire January, at least equal to the preceding based on the new premium rate before taxable year), or a joint tax return.

Income-related Beneficiaries who file an individual tax return with monthly Total monthly income: Beneficiaries who file a joint tax return with income: adjustment premium amount amount

Less than or equal to $85,000 ...... Less than or equal to $170,000 ...... $0.00 $115.40 Greater than $85,000 and less than or equal to Greater than $170,000 and less than or equal to 46.10 161.50 $107,000. $214,000. Greater than $107,000 and less than or equal to Greater than $214,000 and less than or equal to 115.30 230.70 $160,000. $320,000. Greater than $160,000 and less than or equal to Greater than $320,000 and less than or equal to 184.50 299.90 $214,000. $428,000. Greater than $214,000 ...... Greater than $428,000 ...... 253.70 369.10

In addition, the monthly premium married and lived with their spouse at a separate tax return from their spouse, rates to be paid by beneficiaries who are any time during the taxable year, but file are listed below.

Income-related Beneficiaries who are married and lived with their spouse at any time during the year, but file a separate tax monthly Total monthly return from their spouse: adjustment premium amount amount

Less than or equal to $85,000 ...... $0.00 $115.40 Greater than $85,000 and less than or equal to $129,000 ...... 184.50 299.90 Greater than $129,000 ...... 253.70 369.10

The Part B annual deductible for 2011 premium is the amount that would be The premium rates are established is $162.00 for all beneficiaries. necessary to finance Part B on an prospectively and are, therefore, subject incurred basis. This is the amount of to projection error. Additionally, B. Statement of Actuarial Assumptions income that would be sufficient to pay legislation enacted after the financing and Bases Employed in Determining the for services furnished during that year was established, but effective for the Monthly Actuarial Rates and the (including associated administrative period in which the financing is set, Monthly Premium Rate for Part B costs) even though payment for some of may affect program costs. As a result, Beginning January 2011 these services will not be made until the income to the program may not 1. Actuarial Status of the Part B Account after the close of the year. The portion equal incurred costs. Therefore, trust in the Supplementary Medical of income required to cover benefits not fund assets must be maintained at a Insurance Trust Fund paid until after the close of the year is level that is adequate to cover an added to the trust fund and used when appropriate degree of variation between Under the statute, the starting point needed. actual and projected costs, and the for determining the standard monthly amount of incurred, but unpaid,

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expenses. Numerous factors determine was established; (2) the likelihood and analyzed on an ongoing basis, as the what level of assets is appropriate to potential magnitude of expenditure trends can vary over time. cover variation between actual and changes resulting from enactment of Table 1 summarizes the estimated projected costs. The three most legislation affecting Part B costs in a actuarial status of the trust fund as of important of these factors are: (1) The year subsequent to the establishment of the end of the financing period for 2009 difference from prior years between the financing for that year, and (3) the and 2010. actual performance of the program and expected relationship between incurred estimates made at the time financing and cash expenditures. These factors are

TABLE 1—ESTIMATED ACTUARIAL STATUS OF THE PART B ACCOUNT IN THE SUPPLEMENTARY MEDICAL INSURANCE TRUST FUND AS OF THE END OF THE FINANCING PERIOD

Assets less Financing period ending Assets Liabilities liabilities (millions) (millions) (millions)

December 31, 2009 ...... $75,545 $12,581 $62,964 December 31, 2010 ...... 62,065 14,902 47,163

2. Monthly Actuarial Rate for Enrollees December 2010 and is projected to Medicaid (17 percent).) In order for Part Age 65 and Older result in a reduction of about 6.5 B to be adequately funded in 2011, the The monthly actuarial rate for percent in January 2011. For each year 2011 contingency margin has been enrollees age 65 and older is one-half of from 2003 through November 2010, increased to account for this situation. the sum of monthly amounts for: (1) The Congress has acted to prevent physician However, the result is a larger-than- projected cost of benefits; and (2) fee reductions from occurring. In usual premium paid by or on behalf of administrative expenses for each recognition of the strong possibility of a minority of Part B enrollees. enrollee age 65 and older, after substantial increases in Part B Two other, smaller factors affect the adjustments to this sum to allow for expenditures that would result from contingency margin for 2011. Starting in interest earnings on assets in the trust similar legislation to override the 2011, manufacturers and importers of fund and an adequate contingency decreases in physician fees in 2010 and brand-name prescription drugs will pay margin. The contingency margin is an 2011, it is appropriate to maintain a a fee that is allocated to the Part B amount appropriate to provide for significantly larger Part B contingency account of the SMI trust. For 2011, the possible variation between actual and reserve than would otherwise be total of these brand-name drug fees will projected costs and to amortize any necessary. The asset level projected for be $2.5 billion. The contingency margin surplus assets or unfunded liabilities. the end of 2010 is not adequate to has been reduced to account for this The monthly actuarial rate for accommodate this contingency. additional revenue. enrollees age 65 and older for 2011 is The second factor also has a large Another small factor impacting the determined by first establishing per- impact on the level of the contingency contingency margin comes from the enrollee cost by type of service from reserve. As noted previously, for most requirement that certain payment program data through 2009 and then Part B beneficiaries the hold-harmless incentives, to encourage the projecting these costs for subsequent provision prevents their benefits under development and use of health years. The projection factors used for Section 202 or 223 of the Act from information technology (HIT) by financing periods from January 1, 2008 decreasing as a result of an increase in Medicare physicians, are to be excluded through December 31, 2011 are shown the Part B premium. The increase in the from the premium determination. HIT in Table 2. benefits under Section 202 and 223 of As indicated in Table 3, the projected the Act was 0 percent in 2010, and bonuses or penalties will be directly monthly rate required to pay for one- could be 0 percent for 2012. As a result, offset through transfers with the general half of the total of benefits and the increase in the Part B premium for fund of the Treasury. The monthly 2010 (the $14.10 increase from the 2009 actuarial rate includes an adjustment of administrative costs for enrollees age 65 ¥ and over for 2011 is $191.24. Based on standard monthly premium of $96.40 to $1.05 for HIT bonus payments in current estimates, the assets are not the 2010 standard monthly premium of 2011. sufficient to cover the amount of $110.50) was paid by only a small The traditional goal for the Part B incurred, but unpaid, expenses and to percentage of Part B enrollees. reserve has been that assets minus provide for a significant degree of Similarly, the increase in the Part B liabilities at the end of a year should variation between actual and projected premium for 2011 will be paid by only represent between 15 and 20 percent of costs. Thus, a positive contingency a small percentage of Part B enrollees. the following year’s total incurred margin is needed to increase assets to a (Approximately 27 percent of expenditures. Within this range, 17 more appropriate level. The monthly beneficiaries are not subject to the hold- percent has been the normal target. In actuarial rate of $230.70 provides an harmless provision because they are view of the strong likelihood of actual adjustment of $41.22 for a contingency subject to the income-related additional expenditures exceeding estimated margin and ¥$1.76 for interest premium amount (5 percent); they are levels, due to the enactment of earnings. new enrollees during the year (3 legislation after the financing has been The size of the contingency margin for percent); or they do not have their Part set for a given year, a contingency 2011 is affected by several factors. The B premiums withheld from social reserve ratio in excess of 20 percent of first, and largest, factor involves the security benefit payments (19 percent), the following year’s expenditures would current law formula for physician fees, including those who qualify for both better ensure that the assets of the Part which will result in a reduction in Medicare and Medicaid and have their B account can adequately cover the cost physician fees of 23 percent in Part B premiums paid on their behalf by of incurred-but-not-reported benefits

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together with variations between actual estimates, the assets associated with the preparing this report. This amounts to and estimated cost levels. disabled Medicare beneficiaries are not 28.5 percent of the estimated total The actuarial rate of $230.70 per sufficient to cover the amount of incurred expenditures for the following month for aged beneficiaries, as incurred, but unpaid, expenses and to year. announced in this notice for 2011, provide for a significant degree of Assumptions that are somewhat more reflects the combined net effect of the variation between actual and projected pessimistic (and that therefore test the factors described above and the costs. Thus, a large contingency margin adequacy of the assets to accommodate projection assumptions listed in Table is needed to increase assets to an projection errors) produce a surplus of 2. appropriate level. $52,472 million by the end of December The actuarial rate of $266.30 per 3. Monthly Actuarial Rate for Disabled 2011, which amounts to 21.0 percent of month for disabled beneficiaries, as Enrollees the estimated total incurred announced in this notice for 2011, Disabled enrollees are those persons expenditures for the following year. reflects the combined net effect of the Under fairly optimistic assumptions, the under age 65 who are enrolled in Part factors described above for aged B because of entitlement to Social monthly actuarial rates would result in beneficiaries and the projection a surplus of $73,097 million by the end Security disability benefits for more assumptions listed in Table 2. than 24 months or because of of December 2011, or 35.8 percent of the entitlement to Medicare under the end- 4. Sensitivity Testing estimated total incurred expenditures stage renal disease (ESRD) program. Several factors contribute to for the following year. Projected monthly costs for disabled uncertainty about future trends in The above analysis indicates that the enrollees (other than those with ESRD) medical care costs. It is appropriate to premium and general revenue financing are prepared in a fashion parallel to the test the adequacy of the rates using established for 2011, together with projection for the aged using alternative assumptions. The results of existing Part B account assets would be appropriate actuarial assumptions (see those assumptions are shown in Table 5. adequate to cover estimated Part B costs Table 2). Costs for the ESRD program are One set represents increases that are for 2011 under current law, even if projected differently because of the lower and, therefore, more optimistic actual costs prove to be somewhat different nature of services offered by than the current estimate. The other set greater than expected. the program. represents increases that are higher and, 5. Premium Rates and Deductible As shown in Table 4, the projected therefore, more pessimistic than the monthly rate required to pay for one- current estimate. The values for the As determined in accordance with half of the total of benefits and alternative assumptions were section 1839 of the Act, listed below are administrative costs for disabled determined from a statistical analysis of the 2011 Part B monthly premium rates enrollees for 2011 is $228.22. The the historical variation in the respective to be paid by beneficiaries who file an monthly actuarial rate of $266.30 also increase factors. individual tax return (including those provides an adjustment of ¥$2.39 for As indicated in Table 5, the monthly who are single, head of household, interest earnings and $40.47 for a actuarial rates would result in an excess qualifying widow(er) with dependent contingency margin, reflecting the same of assets over liabilities of $64,247 child, or married filing separately who factors described above for the aged million by the end of December 2011 lived apart from their spouse for the actuarial rate. Based on current under the assumptions used in entire taxable year), or a joint tax return.

Income-related Beneficiaries who file an individual tax return with Beneficiaries who file a joint tax return with income: monthly adjust- Total monthly income: ment amount premium amount

Less than or equal to $85,000 ...... Less than or equal to $170,000 ...... $0.00 $115.40 Greater than $85,000 and less than or equal to Greater than $170,000 and less than or equal to 46.10 161.50 $107,000. $214,000. Greater than $107,000 and less than or equal to Greater than $214,000 and less than or equal to 115.30 230.70 $160,000. $320,000. Greater than $160,000 and less than or equal to Greater than $320,000 and less than or equal to 184.50 299.90 $214,000. $428,000. Greater than $214,000 ...... Greater than $428,000 ...... 253.70 369.10

In addition, the monthly premium married and lived with their spouse at a separate tax return from their spouse, rates to be paid by beneficiaries who are any time during the taxable year, but file are listed below.

Income-related Beneficiaries who are married and lived with their spouse at any time during the year, but file a separate monthly adjust- Total monthly tax return from their spouse: ment amount premium amount

Less than or equal to $85,000 ...... $0.00 $115.40 Greater than $85,000 and less than or equal to $129,000 ...... 184.50 299.90 Greater than $129,000 ...... 253.70 369.10

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TABLE 2—PROJECTION FACTORS1 12-MONTH PERIODS ENDING DECEMBER 31 OF 2008–2011 [In percent]

Physicians’ services Other Durable Other Outpatient Home Hospital inter- Managed Calendar year medical Carrier carrier health lab 4 hospital lab 6 mediary care Fees 2 Residual 3 equipment services 5 agency services 7

Aged: 2008 ...... 0.4 3.3 7.1 7.3 4.2 6.4 12.3 4.3 6.1 5.4 2009 ...... 1.6 2.4 ¥9.0 9.7 4.6 10.1 10.4 10.1 10.2 0.3 2010 ...... 1.2 5.0 5.8 6.0 3.8 6.6 1.6 1.9 5.8 ¥1.8 2011 ...... ¥26.0 9.9 2.9 ¥0.1 4.5 6.2 ¥0.8 ¥2.4 ¥3.1 0.7 Disabled: 2008 ...... 0.4 3.2 7.4 11.6 8.8 7.7 14.3 5.9 6.9 5.9 2009 ...... 1.6 6.7 ¥2.4 23.5 8.2 12.3 10.5 13.0 18.3 0.5 2010 ...... 1.2 5.2 5.6 7.9 3.9 6.8 3.2 1.7 9.1 ¥1.5 2011 ...... ¥26.0 9.9 3.2 ¥0.2 4.3 6.1 ¥0.7 ¥2.4 ¥0.3 0.9 1 All values for services other than managed care are per fee-for-service enrollee. Managed care values are per managed care enrollee. 2 As recognized for payment under the program. 3 Increase in the number of services received per enrollee and greater relative use of more expensive services. 4 Includes services paid under the lab fee schedule furnished in the physician’s office or an independent lab. 5 Includes physician-administered drugs, ambulatory surgical center facility costs, ambulance services, parenteral and enteral drug costs, supplies, etc. 6 Includes services paid under the lab fee schedule furnished in the outpatient department of a hospital. 7 Includes services furnished in dialysis facilities, rural health clinics, Federally qualified health centers, rehabilitation and psychiatric hospitals, etc.

TABLE 3—DERIVATION OF MONTHLY ACTUARIAL RATE FOR ENROLLEES AGE 65 AND OVER FOR FINANCING PERIODS ENDING DECEMBER 31, 2008 THROUGH DECEMBER 31, 2011

Financing periods CY 2008 CY 2009 CY 2010 CY 2011

Covered services (at level recognized): Physician fee schedule...... 78.35 79.29 83.37 67.42 Durable medical equipment ...... 9.95 8.80 9.21 9.43 Carrier lab 1 ...... 4.09 4.36 4.58 4.55 Other carrier services 2 ...... 19.81 20.15 20.67 21.48 Outpatient hospital ...... 30.70 32.86 34.63 36.60 Home health...... 10.64 11.42 11.48 11.33 Hospital lab 3 ...... 2.78 2.98 3.00 2.91 Other intermediary services 4 ...... 13.30 14.25 14.91 14.37 Managed care...... 49.90 54.19 54.77 55.87

Total services ...... 219.53 228.30 236.60 223.97 Cost sharing: Deductible ...... ¥5.50 ¥5.50 ¥6.32 ¥6.61 Coinsurance ...... ¥30.21 ¥30.42 ¥31.22 ¥27.82 HIT payment incentives ...... 0.00 0.00 0.00 ¥1.05

Total benefits ...... 183.82 192.37 199.06 188.49 Administrative expenses ...... 2.93 2.98 3.44 2.75

Incurred expenditures ...... 186.75 195.35 202.50 191.24 Value of interest ...... ¥3.34 ¥2.80 ¥2.47 ¥1.76 Contingency margin for projection error and to amortize the surplus or def- icit ...... 9.29 0.14 20.97 41.22

Monthly actuarial rate ...... 192.70 192.70 221.00 230.70 1 Includes services paid under the lab fee schedule furnished in the physician’s office or an independent lab. 2 Includes physician-administered drugs, ambulatory surgical center facility costs, ambulance services, parenteral and enteral drug costs, sup- plies, etc. 3 Includes services paid under the lab fee schedule furnished in the outpatient department of a hospital. 4 Includes services furnished in dialysis facilities, rural health clinics, Federally qualified health centers, and rehabilitation and psychiatric hos- pitals, etc.

TABLE 4—DERIVATION OF MONTHLY ACTUARIAL RATE FOR DISABLED ENROLLEES FOR FINANCING PERIODS ENDING DECEMBER 31, 2008 THROUGH DECEMBER 31, 2011

Financing Periods CY 2008 CY 2009 CY 2010 CY 2011

Covered services (at level recognized): Physician fee schedule...... 78.89 83.25 88.30 72.86 Durable medical equipment ...... 17.59 16.67 17.53 18.38 Carrier lab 1 ...... 5.35 6.24 6.68 6.76 Other carrier services 2 ...... 24.29 25.64 26.52 28.06

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TABLE 4—DERIVATION OF MONTHLY ACTUARIAL RATE FOR DISABLED ENROLLEES FOR FINANCING PERIODS ENDING DECEMBER 31, 2008 THROUGH DECEMBER 31, 2011—Continued

Financing Periods CY 2008 CY 2009 CY 2010 CY 2011

Outpatient hospital ...... 41.73 45.70 48.63 52.43 Home health ...... 9.10 9.81 10.09 10.21 Hospital lab 3 ...... 4.42 4.85 4.91 4.86 Other intermediary services 4 ...... 40.34 42.60 44.35 45.12 Managed care...... 36.46 40.55 40.23 37.80

Total services ...... 258.18 275.31 287.23 276.46 Cost sharing: Deductible ...... ¥5.14 ¥5.15 ¥5.92 ¥6.18 Coinsurance ...... ¥43.88 ¥45.90 ¥47.26 ¥44.23 HIT payment incentives 0.00 0.00 0.00 ¥1.11

Total benefits ...... 209.15 224.26 234.05 224.94 Administrative expenses ...... 3.33 3.47 3.70 3.28

Incurred expenditures ...... 212.49 227.73 237.75 228.22 Value of interest ...... ¥4.26 ¥3.33 ¥2.91 ¥2.39 Contingency margin for projection error and to amortize the surplus or def- icit ...... 1.47 ¥0.19 35.56 40.47

Monthly actuarial rate ...... 209.70 224.20 224.20 266.30 1 Includes services paid under the lab fee schedule furnished in the physician’s office or an independent lab. 2 Includes physician-administered drugs, ambulatory surgical center facility costs, ambulance services, parenteral and enteral drug costs, sup- plies, etc. 3 Includes services paid under the lab fee schedule furnished in the outpatient department of a hospital. 4 Includes services furnished in dialysis facilities, rural health clinics, Federally qualified health centers, rehabilitation and psychiatric hospitals, etc.

TABLE 5—ACTUARIAL STATUS OF THE PART B ACCOUNT IN THE SMI TRUST FUND UNDER THREE SETS OF ASSUMPTIONS FOR FINANCING PERIODS THROUGH DECEMBER 31, 2011

As of December 31, 2009 2010 2011

This projection: Actuarial status (in millions): Assets ...... 75,545 62,065 78,995 Liabilities ...... 12,581 14,902 14,721

Assets less liabilities ...... 62,964 47,163 64,274 Ratio (in percent) 1 ...... 28.7 22.1 28.5 Low cost projection: Actuarial status (in millions): Assets ...... 75,545 62,065 87,001 Liabilities ...... 12,581 14,379 13,904

Assets less liabilities ...... 62,964 47,686 73,097 Ratio (in percent) 1 ...... 29.4 23.9 35.8 High cost projection: Actuarial status (in millions): Assets ...... 75,545 62,065 68,305 Liabilities ...... 12,581 15,436 15,833

Assets less liabilities ...... 62,964 46,628 52,472 Ratio (in percent) 1 ...... 28.0 20.3 21.0 1 Ratio of assets less liabilities at the end of the year to the total incurred expenditures during the following year, expressed as a percent.

III. Regulatory Impact Analysis Mandates Reform Act of 1995 (Pub. L. regulatory approaches that maximize 104–4), Executive Order 13132 on net benefits (including potential We have examined the impacts of this Federalism (August 4, 1999), and the economic, environmental, public health notice as required by Executive Order Congressional Review Act (5 U.S.C. and safety effects, distributive impacts, 12866 on Regulatory Planning and 804(2)). and equity). A regulatory impact Review (September 30, 1993), the analysis (RIA) must be prepared for Regulatory Flexibility Act (RFA) Executive Order 12866 directs major rules with economically (September 19, 1980, Pub. L. 96–354), agencies to assess all costs and benefits significant effects ($100 million or more section 1102(b) of the Social Security of available regulatory alternatives and, Act, section 202 of the Unfunded if regulation is necessary, to select in any one year).

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We have examined the impact of this number of small businesses or other threshold is approximately $135 notice as required by Executive Order small entities. Therefore, the Secretary million. This notice has no 12866 (September 1993, Regulatory has determined that this notice will not consequential effect on State, local, or Planning and Review) and the have a significant economic impact on Tribal governments. We believe the Regulatory Flexibility Act (RFA) a substantial number of small entities. private sector costs of this notice fall (September 19, 1980, Pub. L. 96–354). In addition, section 1102(b) of the Act below this threshold as well. Executive Order 12866 directs agencies requires us to prepare a regulatory Executive Order 13132 establishes to assess all costs and benefits of impact analysis if a rule may have a certain requirements that an agency available regulatory alternatives and, if significant impact on the operations of must meet when it publishes a proposed regulation is necessary, to select a substantial number of small rural rule (and subsequent final rule) that regulatory approaches that maximize hospitals. This analysis must conform to imposes substantial direct compliance the provisions of section 604 of the net benefits (including potential costs on State and local governments, RFA. For purposes of section 1102(b) of economic, environmental, public health preempts State law, or otherwise has the Act, we define a small rural hospital and safety effects, distributive impacts, Federalism implications. We have as a hospital that is located outside of and equity). determined that this notice does not a Metropolitan Statistical Area and has significantly affect the rights, roles, and The RFA requires agencies to analyze fewer than 100 beds. We have responsibilities of States. options for regulatory relief of small determined that this notice will not businesses, if a rule has a significant have a significant effect on a substantial This notice announces that the impact on a substantial number of small number of small entities or on the monthly actuarial rates applicable for entities. For purposes of the RFA, small operations of a substantial number of 2011 are $230.70 for enrollees age 65 entities include small businesses, small rural hospitals. Therefore, we are and over and $266.30 for disabled nonprofit organizations, and small not preparing analyses for either the enrollees under age 65. It also governmental jurisdictions. Most RFA or section 1102(b) of the Act. announces the 2011 monthly Part B hospitals and most other providers and Section 202 of the Unfunded premium rates to be paid by suppliers are small entities, either by Mandates Reform Act of 1995 (UMRA) beneficiaries who file an individual tax nonprofit status or by having revenues also requires that agencies assess return (including those who are single, of $6.7 million to $34.5 million in any anticipated costs and benefits before head of household, qualifying 1 year. Individuals and States are not issuing any rule whose mandates widow(er) with a dependent child, or included in the definition of a small require spending in any 1 year of $100 married filing separately who lived entity. This notice will not have a million in 1995 dollars, updated apart from their spouse for the entire significant impact on a substantial annually for inflation. In 2010, that taxable year), or a joint tax return.

Income-related Beneficiaries who file an individual tax return with in- monthly Total monthly come: Beneficiaries who file a joint tax return with income: adjustment premium amount amount

Less than or equal to $85,000 ...... Less than or equal to $170,000 ...... $0.00 $115.40 Greater than $85,000 and less than or equal to Greater than $170,000 and less than or equal to 46.10 161.50 $107,000. $214,000. Greater than $107,000 and less than or equal to Greater than $214,000 and less than or equal to 115.30 230.70 $160,000. $320,000. Greater than $160,000 and less than or equal to Greater than $320,000 and less than or equal to 184.50 299.90 $214,000. $428,000. Greater than $214,000 ...... Greater than $428,000 ...... 253.70 369.10

In addition, the monthly premium married and lived with their spouse at a separate tax return from their spouse, rates to be paid by beneficiaries who are any time during the taxable year, but file are also announced and listed below.

Income-related Beneficiaries who are married and lived with their spouse at any time during the year, but file a separate tax monthly Total monthly return from their spouse: adjustment premium amount amount

Less than or equal to $85,000 ...... $0.00 $115.40 Greater than $85,000 and less than or equal to $129,000 ...... 184.50 299.90 Greater than $129,000 ...... 253.70 369.10

The standard Part B premium rate of significant rule under Executive Order rates and the Part B premium amounts $115.40 is $4.90 higher than the 12866. in September. We ordinarily use general premium for 2010, so there will be In accordance with the provisions of notices, rather than notice and comment about $700 million of additional costs in Executive Order 12866, this notice was rulemaking procedures, to make such 2011 to the approximately 12 million reviewed by the Office of Management announcements. In doing so, we note Part B enrollees who pay the increase in and Budget. that, under the Administrative the Part B premium. Therefore, this IV. Waiver of Proposed Notice Procedure Act, interpretive rules, notice is a major rule as defined in 5 general statements of policy, and rules U.S.C. 804(2) and is an economically The Medicare statute requires the of agency organization, procedure, or publication of the monthly actuarial

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practice are excepted from the months beginning January 1, 2011 for 50 cents but not of $1, it is rounded to requirements of notice and comment these individuals will be $450. The the next highest $1). rulemaking. reduced premium for certain other Section 13508 of the Omnibus Budget We considered publishing a proposed individuals as described in this notice Reconciliation Act of 1993 (Pub. L. 103– notice to provide a period for public will be $248. 66) amended section 1818(d) of the Act comment. However, we may waive that DATES: Effective Date: This notice is to provide for a reduction in the procedure if we find, for good cause, effective on January 1, 2011. premium amount for certain voluntary enrollees (section 1818 and section that prior notice and comment are FOR FURTHER INFORMATION CONTACT: 1818A of the Act). The reduction impracticable, unnecessary, or contrary Clare McFarland, (410) 786–6390. to the public interest. The statute applies to an individual who is eligible SUPPLEMENTARY INFORMATION: establishes the time period for which to buy into the Medicare Part A program the premium rates will apply, and I. Background and who, as of the last day of the delaying publication of the Part B previous month— Section 1818 of the Social Security • Had at least 30 quarters of coverage premium rate such that it would not be Act (the Act) provides for voluntary published before that time would be under Title II of the Act; enrollment in the Medicare Hospital • Was married, and had been married contrary to the public interest. Insurance Program (Medicare Part A), Moreover, we find that notice and for the previous 1-year period, to a subject to payment of a monthly person who had at least 30 quarters of comment are unnecessary because the premium, of certain persons aged 65 formulas used to calculate the Part B coverage; and older who are uninsured under the • Had been married to a person for at premiums are statutorily directed. Old-Age, Survivors, and Disability least 1 year at the time of the person’s Therefore, we find good cause to waive Insurance (OASDI) program or the death if, at the time of death, the person publication of a proposed notice and Railroad Retirement Act and do not had at least 30 quarters of coverage; or solicitation of public comments. otherwise meet the requirements for • Is divorced from a person and had (Catalog of Federal Domestic Assistance entitlement to Medicare Part A. (Persons Program No. 93.773, Medicare—Hospital been married to the person for at least Insurance; and Program No. 93.774, insured under the OASDI program or 10 years at the time of the divorce if, at Medicare—Supplementary Medical the Railroad Retirement Act and certain the time of the divorce, the person had Insurance Program) others do not have to pay premiums for at least 30 quarters of coverage. Medicare Part A.) Section 1818(d)(4)(A) of the Act Dated: October 27, 2010. Section 1818A of the Act provides for specifies that the premium that these Donald M. Berwick, voluntary enrollment in Medicare Part individuals will pay for CY 2011 will be Administrator, Centers for Medicare & A, subject to payment of a monthly equal to the premium for uninsured Medicaid Services. premium of certain disabled individuals aged enrollees reduced by 45 percent. Approved: October 29, 2010. who have exhausted other entitlement. Kathleen Sebelius, II. Monthly Premium Amount for CY These are individuals who were entitled 2011 Secretary. to coverage due to a disabling [FR Doc. 2010–28248 Filed 11–4–10; 2:15 pm] impairment under section 226(b) of the The monthly premium for the BILLING CODE 4120–01–P Act, but are no longer entitled to uninsured aged and certain disabled disability benefits and free Medicare individuals who have exhausted other Part A coverage because they have gone entitlement for the 12 months beginning DEPARTMENT OF HEALTH AND back to work and their earnings exceed January 1, 2011, is $450. HUMAN SERVICES the statutorily defined ‘‘substantial The monthly premium for those gainful activity’’ amount (section individuals subject to the 45 percent Centers for Medicare & Medicaid 223(d)(4) of the Act). reduction in the monthly premium is Services Section 1818A(d)(2) of the Act $248. [CMS–8041–N] specifies that the provisions relating to III. Monthly Premium Rate Calculation premiums under section 1818(d) RIN 0938–AP85 As discussed in section I of this through section 1818(f) of the Act for notice, the monthly Medicare Part A Medicare Program; Part A Premiums the aged will also apply to certain premium is equal to the estimated for CY 2011 for the Uninsured Aged disabled individuals as described above. monthly actuarial rate for CY 2011 Section 1818(d) of the Act requires us and for Certain Disabled Individuals rounded to the nearest multiple of $1 to estimate, on an average per capita Who Have Exhausted Other and equals one-twelfth of the average basis, the amount to be paid from the Entitlement per capita amount, which is determined Federal Hospital Insurance Trust Fund by projecting the number of Part A AGENCY: Centers for Medicare & for services incurred in the following enrollees aged 65 years and over as well Medicaid Services (CMS), HHS. calendar year (CY) (including the as the benefits and administrative costs ACTION: Notice. associated administrative costs) on that will be incurred on their behalf. behalf of individuals aged 65 and over The steps involved in projecting these SUMMARY: This annual notice announces who will be entitled to benefits under future costs to the Federal Hospital Medicare’s Hospital Insurance (Part A) Medicare Part A. We must then Insurance Trust Fund are: premium for uninsured enrollees in determine, during September of each • Establishing the present cost of calendar year (CY) 2011. This premium year, the monthly actuarial rate for the services furnished to beneficiaries, by is paid by enrollees age 65 and over who following year (the per capita amount type of service, to serve as a projection are not otherwise eligible for benefits estimated above divided by 12) and base; under Medicare Part A (hereafter known publish the dollar amount for the • Projecting increases in payment as the ‘‘uninsured aged’’) and by certain monthly premium in the succeeding CY. amounts for each of the service types; disabled individuals who have If the premium is not a multiple of $1, and exhausted other entitlement. The the premium is rounded to the nearest • Projecting increases in monthly Part A premium for the 12 multiple of $1 (or, if it is a multiple of administrative costs.

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We base our projections for CY 2011 section 1102(b) of the Social Security requires that agencies assess anticipated on— (1) current historical data; and (2) Act, section 202 of the Unfunded costs and benefits before issuing any projection assumptions derived from Mandates Reform Act of 1995 (Pub. L. rule whose mandates require spending current law and the Mid-Session Review 104–4), Executive Order 13132 on in any 1 year of $100 million in 1995 of the President’s Fiscal Year 2011 Federalism (August 4, 1999), and the dollars, updated annually for inflation. Budget. Congressional Review Act (5 U.S.C. In 2010, that threshold is approximately We estimate that in CY 2011, 804(2)). $135 million. This notice has no 39,315,092 people aged 65 years and Executive Order 12866 directs consequential effect on State, local, or over will be entitled to benefits (without agencies to assess all costs and benefits tribal governments or on the private premium payment) and that they will of available regulatory alternatives and, sector. However, States are required to incur about $212.435 billion in benefits if regulation is necessary, to select pay the premiums for dually-eligible and related administrative costs. Thus, regulatory approaches that maximize beneficiaries. the estimated monthly average per net benefits (including potential Executive Order 13132 establishes capita amount is $450.28 and the economic, environmental, public health certain requirements that an agency monthly premium is $450. The full and safety effects, distributive impacts, must meet when it promulgates a monthly premium reduced by 45 and equity). A regulatory impact proposed rule (and subsequent final percent is $248. analysis (RIA) must be prepared for rule) that imposes substantial direct major rules with economically IV. Costs to Beneficiaries requirement costs on State and local significant effects ($100 million or more governments, preempts State law, or The CY 2011 premium of $450 is in any 1 year). As stated in section IV otherwise has Federalism implications. approximately 2 percent lower than the of this notice, we estimate that the This notice will not have a substantial CY 2010 premium of $461. overall effect of these changes in the effect on State or local governments. We estimate that approximately Part A premium will be a savings to In accordance with the provisions of 571,000 enrollees will voluntarily enroll voluntary enrollees (section 1818 and Executive Order 12866, this notice was in Medicare Part A by paying the full section 1818A of the Act) of about $78 reviewed by the Office of Management premium. We estimate an additional million. Therefore, this notice is a not and Budget. 40,000 enrollees will pay the reduced a major rule as defined in Title 5, premium. We estimate that the aggregate United States Code, section 804(2) and (Catalog of Federal Domestic Assistance is not an economically significant rule Program No. 93.773, Medicare—Hospital savings to enrollees paying these Insurance) premiums in CY 2011, compared to the under Executive Order 12866. amount that they paid in CY 2010, will The RFA requires agencies to analyze Dated: September 9, 2010. be about $78 million. options for regulatory relief of small Donald M. Berwick, businesses, if a rule has a significant Administrator, Centers for Medicare & V. Waiver of Proposed Notice and impact on a substantial number of small Medicaid Services. Comment Period entities. For purposes of the RFA, small Dated: October 29, 2010. We are not using notice and comment entities include small businesses, Kathleen Sebelius, rulemaking in this notification of nonprofit organizations, and Secretary. Medicare Part A premiums for CY 2011 government agencies. Most hospitals as that procedure is unnecessary and most other providers and suppliers [FR Doc. 2010–28250 Filed 11–4–10; 2:15 pm] because of the lack of discretion in the are small entities, either by nonprofit BILLING CODE 4120–01–P statutory formula that is used to status or by having revenues of $7 calculate the premium and the solely million to $34.5 million in any 1 year. DEPARTMENT OF HEALTH AND ministerial function that this notice Individuals and States are not included HUMAN SERVICES serves. The Administrative Procedure in the definition of a small entity. We Act (APA) permits agencies to waive have determined that this notice will Centers for Medicare & Medicaid notice and comment rulemaking when not have a significant economic impact Services notice and public comment thereon are on a substantial number of small unnecessary. On this basis, we waive entities. Therefore, we are not preparing [CMS–8040–N] an analysis under the RFA. publication of a proposed notice and a RIN 0938–AP86 solicitation of public comments. In addition, section 1102(b) of the Act requires us to prepare a regulatory Medicare Program; Inpatient Hospital VI. Collection of Information impact analysis if a rule may have a Requirements Deductible and Hospital and Extended significant impact on the operations of Care Services Coinsurance Amounts This document does not impose a substantial number of small rural for CY 2011 information collection and hospitals. This analysis must conform to recordkeeping requirements. the provisions of section 604 of the AGENCY: Centers for Medicare & Consequently, it need not be reviewed RFA. For purposes of section 1102(b) of Medicaid Services (CMS), HHS. by the Office of Management and the Act, we define a small rural hospital ACTION: Notice. Budget under the authority of the as a hospital that is located outside of Paperwork Reduction Act of 1995 (44 a Metropolitan Statistical Area and has SUMMARY: This notice announces the U.S.C. 35). fewer than 100 beds. The Secretary has inpatient hospital deductible and the determined that this notice will not hospital and extended care services VII. Regulatory Impact Statement have a significant impact on the coinsurance amounts for services We have examined the impacts of this operations of a substantial number of furnished in calendar year (CY) 2011 final rule as required by Executive small rural hospitals. Therefore, we are under Medicare’s Hospital Insurance Order 12866 on Regulatory Planning not preparing an analysis under section Program (Medicare Part A). The and Review (September 30, 1993), the 1102(b) of the Act. Medicare statute specifies the formulae Regulatory Flexibility Act (RFA) Section 202 of the Unfunded used to determine these amounts. For (September 19, 1980, Pub. L. 96–354), Mandates Reform Act of 1995 (UMRA) CY 2011, the inpatient hospital

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deductible will be $1132. The daily points. Under section 1886(b)(3)(B)(viii) for FY 2010 and provide the most recent coinsurance amounts for CY 2011 will of the Act, hospitals will receive this case-mix data available at this time. be—(a) $283 for the 61st through 90th update only if they submit quality data Based on these bills, the change in day of hospitalization in a benefit as specified by the Secretary. The average case-mix in FY 2010 is 0.3 period; (b) $566 for lifetime reserve update for hospitals that do not submit percent. Based on these bills and past days; and (c) $141.50 for the 21st this data is reduced by 2.0 percentage experience, we expect the overall case through 100th day of extended care points. We are estimating that after mix change to be 0.5 percent as the year services in a skilled nursing facility in accounting for those hospitals receiving progresses and more FY 2010 data a benefit period. the lower market basket update in the become available. DATES: Effective Date: This notice is payment-weighted average update, the Section 1813 of the Act requires that effective on January 1, 2011. calculated deductible will remain the the inpatient hospital deductible be same. adjusted only by that portion of the FOR FURTHER INFORMATION CONTACT: Under section 1886(b)(3)(B)(ii)(VIII) of case-mix change that is determined to Clare McFarland, (410) 786–6390 for the Act, the percentage increase used to be real. In the FY 2011 IPPS/RY 2011 general information. Gregory J. Savord, update the payment rates for FY 2011 LTCH PPS final rule with comment (410) 786–1521 for case-mix analysis. for hospitals excluded from the period, we indicated that we believe the SUPPLEMENTARY INFORMATION: inpatient prospective payment system is adoption of the Medicare severity-based I. Background the market basket percentage increase diagnosis-related groups (MS–DRGs) led reduced by .5 percentage points for to increases in aggregate payments Section 1813 of the Social Security Long Term Care Hospitals and reduced without a corresponding increase in Act (the Act) provides for an inpatient by .25 percentage points for Inpatient actual patient severity of illness due to hospital deductible to be subtracted Rehabilitation facilities and Psychiatric the incentives for improved from the amount payable by Medicare Hospitals, defined according to section documentation and coding. In that final for inpatient hospital services furnished 1886(b)(3)(B)(iii) of the Act. rule with comment period, we estimated to a beneficiary. It also provides for The market basket percentage increase that changes in coding or classification certain coinsurance amounts to be for 2011 is 2.6 percent, as announced in that do not reflect real change in case- subtracted from the amounts payable by the final rule with comment period mix would be 0.0 percent for FY 2010. Medicare for inpatient hospital and published in the Federal Register on Therefore, since we are expecting extended care services. Section August 16, 2010 entitled, ‘‘Medicare overall case mix to increase by 0.5 1813(b)(2) of the Act requires us to Program; Changes to the Hospital percent and 0.0 percent of that to be determine and publish each year the Inpatient Prospective Payment Systems caused by coding changes, real case mix amount of the inpatient hospital for Acute Care Hospitals and Fiscal Year changes resulted in an increase of 0.5 deductible and the hospital and 2011 Rates; and Changes to the Long- percent for FY 2010. extended care services coinsurance Term Care Hospital Prospective Thus, the estimate of the payment- amounts applicable for services Payment System and Rate Years 2011 weighted average of the applicable furnished in the following CY. and 2010 Rates (IPPS/RY 2011 LTCH percentage increases used for updating II. Computing the Inpatient Hospital PPS) (75 FR 50042–50677).’’ Therefore, the payment rates is 2.40 percent, and Deductible for CY 2011 the percentage increase for hospitals the real case-mix adjustment factor for paid under the inpatient prospective the deductible is 0.5 percent. Therefore, Section 1813(b) of the Act prescribes payment system is 2.35 percent. The under the statutory formula, the the method for computing the amount of average payment percentage increase for inpatient hospital deductible for the inpatient hospital deductible. The hospitals excluded from the inpatient services furnished in CY 2011 is $1132. inpatient hospital deductible is an prospective payment system is 2.73 This deductible amount is determined amount equal to the inpatient hospital percent. Weighting these percentages in by multiplying $1100 (the inpatient deductible for the preceding CY, accordance with payment volume, our hospital deductible for CY 2010) by the adjusted by our best estimate of the best estimate of the payment-weighted payment-weighted average increase in payment-weighted average of the average of the increases in the payment the payment rates of 1.0240 multiplied applicable percentage increases (as rates for FY 2011 is 2.40 percent. by the increase in real case-mix of 1.005, defined in section 1886(b)(3)(B) of the To develop the adjustment to reflect which equals $1132.03 and is rounded Act) used for updating the payment changes in real case-mix, we first to $1132. rates to hospitals for discharges in the calculated for each hospital an average fiscal year (FY) that begins on October case-mix that reflects the relative III. Computing the Inpatient Hospital 1 of the same preceding CY, and costliness of that hospital’s mix of cases and Extended Care Services adjusted to reflect changes in real case- compared to those of other hospitals. Coinsurance Amounts for CY 2011 mix. The adjustment to reflect real case- We then computed the change in The coinsurance amounts provided mix is determined on the basis of the average case-mix for hospitals paid for in section 1813 of the Act are most recent case-mix data available. The under the Medicare prospective defined as fixed percentages of the amount determined under this formula payment system in FY 2010 compared inpatient hospital deductible for is rounded to the nearest multiple of $4 to FY 2009. (We excluded from this services furnished in the same CY. The (or, if midway between two multiples of calculation hospitals whose payments increase in the deductible generates $4, to the next higher multiple of $4). are not based on the inpatient increases in the coinsurance amounts. Under section 1886(b)(3)(B)(i)(XX) of prospective payment system because For inpatient hospital and extended care the Act, the percentage increase used to their payments are based on alternate services furnished in CY 2011, in update the payment rates for FY 2011 prospective payment systems or accordance with the fixed percentages for hospitals paid under the inpatient reasonable costs.) We used Medicare defined in the law, the daily prospective payment system is the bills from prospective payment coinsurance for the 61st through 90th market basket percentage increase, hospitals that we received as of July day of hospitalization in a benefit otherwise known as the market basket 2010. These bills represent a total of period will be $283 (one-fourth of the update, reduced by .25 percentage about 8.5 million Medicare discharges inpatient hospital deductible); the daily

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coinsurance for lifetime reserve days period will be $141.50 (one-eighth of CYs 2010 and 2011, as well as the will be $566 (one-half of the inpatient the inpatient hospital deductible). number of each that is estimated to be hospital deductible); and the daily IV. Cost to Medicare Beneficiaries paid. coinsurance for the 21st through 100th day of extended care services in a Table 1 below summarizes the skilled nursing facility in a benefit deductible and coinsurance amounts for

TABLE 1—PART A DEDUCTIBLE AND COINSURANCE AMOUNTS FOR CALENDAR YEARS 2010 AND 2011

Value Number paid (in millions) Type of cost sharing 2010 2011 2010 2011

Inpatient hospital deductible ...... $1100 $1132 8.40 8.59 Daily coinsurance for 61st–90th Day ...... $275 $283 2.25 2.30 Daily coinsurance for lifetime reserve days ...... $550 $566 1.13 1.16 SNF coinsurance ...... $137 .50 $141.50 42.41 43.66

The estimated total increase in costs VI. Collection of Information The RFA requires agencies to analyze to beneficiaries is about $900 million Requirements options for regulatory relief of small (rounded to the nearest $10 million) due This document does not impose businesses, if a rule has a significant to— (1) the increase in the deductible information collection and impact on a substantial number of small and coinsurance amounts; and (2) the recordkeeping requirements. entities. For purposes of the RFA, small change in the number of deductibles Consequently, it need not be reviewed entities include small businesses, and daily coinsurance amounts paid. by the Office of Management and nonprofit organizations, and V. Waiver of Proposed Notice and Budget under the authority of the government agencies. Most hospitals Comment Period Paperwork Reduction Act of 1995 (44 and most other providers and suppliers U.S.C. 35). are small entities, either by nonprofit The Medicare statute, as discussed status or by having revenues of $7.0 previously, requires publication of the VII. Regulatory Impact Statement million to $34.5 million in any 1 year. Medicare Part A inpatient hospital We have examined the impacts of this Individuals and States are not included deductible and the hospital and final rule as required by Executive in the definition of a small entity. We extended care services coinsurance Order 12866 on Regulatory Planning have determined that this notice will amounts for services for each CY. The and Review (September 30, 1993), the not have a significant economic impact amounts are determined according to Regulatory Flexibility Act (RFA) on a substantial number of small the statute. As has been our custom, we (September 19, 1980, Pub. L. 96–354), entities. Therefore, we are not preparing use general notices, rather than notice section 1102(b) of the Social Security an analysis under the RFA. and comment rulemaking procedures, to Act, section 202 of the Unfunded In addition, section 1102(b) of the Act make the announcements. In doing so, Mandates Reform Act of 1995 (Pub. L. requires us to prepare a regulatory we acknowledge that, under the 104–4), Executive Order 13132 on impact analysis if a rule may have a Administrative Procedure Act (APA), Federalism (August 4, 1999), and the significant impact on the operations of interpretive rules, general statements of Congressional Review Act (5 policy, and rules of agency organization, a substantial number of small rural U.S.C.804(2)). hospitals. This analysis must conform to procedure, or practice are excepted from Executive Order 12866 directs the provisions of section 604 of the the requirements of notice and comment agencies to assess all costs and benefits RFA. For purposes of section 1102(b) of rulemaking. of available regulatory alternatives and, the Act, we define a small rural hospital We considered publishing a proposed if regulation is necessary, to select as a hospital that is located outside of notice to provide a period for public regulatory approaches that maximize a Metropolitan Statistical Area and has comment. However, we may waive that net benefits (including potential fewer than 100 beds. The Secretary has procedure if we find good cause that economic, environmental, public health determined that this notice will not prior notice and comment are and safety effects, distributive impacts, have a significant impact on the impracticable, unnecessary, or contrary and equity). A regulatory impact operations of a substantial number of to the public interest. We find that the analysis (RIA) must be prepared for small rural hospitals. Therefore, we are procedure for notice and comment is major rules with economically not preparing an analysis under section unnecessary because the formulae used significant effects ($100 million or more to calculate the inpatient hospital in any 1 year). As stated in section IV 1102(b) of the Act. deductible and hospital and extended of this notice, we estimate that the total Section 202 of the Unfunded care services coinsurance amounts are increase in costs to beneficiaries Mandates Reform Act of 1995 (UMRA) statutorily directed, and we can exercise associated with this notice is about $900 requires that agencies assess anticipated no discretion in following the formulae. million due to— (1) The increase in the costs and benefits before issuing any Moreover, the statute establishes the deductible and coinsurance amounts; rule whose mandates require spending time period for which the deductible and (2) the change in the number of in any 1 year of $100 million in 1995 and coinsurance amounts will apply deductibles and daily coinsurance dollars, updated annually for inflation. and delaying publication would be amounts paid. Therefore, this notice is In 2010, that threshold is approximately contrary to the public interest. a major rule as defined in Title 5, $135 million. This notice has no Therefore, we find good cause to waive United States Code, section 804(2), and consequential effect on State, local, or publication of a proposed notice and is an economically significant rule Tribal governments or on the private solicitation of public comments. under Executive Order 12866. sector. However, States may be required

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to pay the deductibles and coinsurance Newborns and Children (Advisory Dated: November 2, 2010. for dually-eligible beneficiaries. Committee) was established to advise and Robert Hendricks, Executive Order 13132 establishes guide the Secretary regarding the most Director, Division of Policy and Information certain requirements that an agency appropriate application of universal newborn Coordination. must meet when it promulgates a screening tests, technologies, policies, [FR Doc. 2010–28188 Filed 11–8–10; 8:45 am] guidelines and programs for effectively proposed rule (and subsequent final BILLING CODE 4165–15–P rule) that imposes substantial direct reducing morbidity and mortality in requirement costs on State and local newborns and children having or at risk for governments, preempts State law, or heritable disorders. The Advisory Committee DEPARTMENT OF HEALTH AND otherwise has Federalism implications. also provides advice and recommendations HUMAN SERVICES This notice will not have a substantial concerning the grants and projects authorized effect on State or local governments. under the Public Health Service Act, 42 Food and Drug Administration U.S.C. 300b–10, (Heritable Disorders In accordance with the provisions of [Docket No. FDA–2010–N–0369] Executive Order 12866, this notice was Program) as amended in the Newborn Screening Saves Lives Act of 2008. reviewed by the Office of Management Report on the Performance of Drug and Budget. Agenda: The meeting will include: (1) Presentations from the following Advisory and Biologics Firms in Conducting (Catalog of Federal Domestic Assistance Committee workgroups: Communications, Postmarketing Requirements and Program No. 93.773, Medicare—Hospital Health Information Technology, and Commitments; Availability Insurance) Evidence Review; (2) a report from a National AGENCY: Food and Drug Administration, Dated: September 9, 2010. Survey of Recent and Prospective Mothers HHS. Donald M. Berwick, about Newborn Screening; and (3) ACTION: Notice of availability. Administrator, Centers for Medicare & presentations on the continued work and reports of the Advisory Committee’s Medicaid Services. SUMMARY: Under the Food and Drug subcommittees on laboratory standards and Dated: October 29, 2010. Administration Modernization Act of procedures, follow-up and treatment, and Kathleen Sebelius, 1997 (Modernization Act), the Food and education and training. Proposed Agenda Secretary. items are subject to change as priorities Drug Administration (FDA) is required [FR Doc. 2010–28251 Filed 11–4–10; 2:15 pm] dictate. You can locate the Agenda, to report annually in the Federal BILLING CODE 4120–01–P Committee Roster and Charter, presentations, Register on the status of postmarketing and meeting materials at the home page of requirements and commitments the Advisory Committee’s Web site at required of, or agreed upon by, holders DEPARTMENT OF HEALTH AND http://www.hrsa.gov/ of approved drug and biological HUMAN SERVICES heritabledisorderscommittee/. products. This notice is the Agency’s Public Comments: Members of the public report on the status of the studies and Health Resources and Services can present oral comments during the public clinical trials that applicants have Administration comment periods of the meeting, which are agreed to or are required to conduct. scheduled for both days of the meeting. FOR FURTHER INFORMATION CONTACT: Secretary’s Advisory Committee on Those individuals who want to make a Cathryn C. Lee, Center for Drug Heritable Disorders in Newborns and comment are requested to register online by Children; Notice of Meeting Evaluation and Research, Food and Tuesday, January 25, 2011, at http:// Drug Administration, 10903 New In accordance with section 10(a)(2) of altarum.cvent.com/event/SACHDNC012011. Hampshire Ave., Bldg. 22, Rm. 6464, the Federal Advisory Committee Act Requests will contain the name, address, Silver Spring, MD 20993–0002, 301– (Pub. L. 92–463), notice is hereby given telephone number, and any professional or 796–0700; or of the following meeting: business affiliation of the person desiring to Robert Yetter, Center for Biologics make an oral presentation. Groups having Evaluation and Research (HFM–25), Name: Secretary’s Advisory Committee on similar interests are requested to combine Food and Drug Administration, 1400 Heritable Disorders in Newborns and their comments and present them through a Children. single representative. The list of public Rockville Pike, Rockville, MD 20852, Dates and Times: January 27, 2011, 8:30 comment participants will be posted on the 301–827–0373. a.m. to 5 p.m. January 28, 2011, 8:30 a.m. to Web site. Written comments should be e- SUPPLEMENTARY INFORMATION: 3:30 p.m. Place: Renaissance Washington, DC mailed via e-mail no later than Tuesday, I. Background Dupont Circle Hotel, 1143 New Hampshire January 25, 2011, for consideration. Avenue, NW., Washington, DC 20037. Comments should be submitted to Maureen A. The Modernization Act Status: The meeting will be open to the Ball, Meetings Coordinator, Conference and Section 130(a) of the Modernization public with attendance limited to space Meetings Management, Altarum Institute, Act (Pub. L. 105–115) amended the availability. Participants are asked to register 1200 18th Street, NW., Suite 700, Federal Food, Drug, and Cosmetic Act for the meeting by going to the registration Washington, DC 20036, telephone: 202 828– (the FD&C Act) by adding a new Web site at http://altarum.cvent.com/event/ 5100; fax: 202 785–3083, or e-mail: provision requiring reports of certain SACHDNC012011. The registration deadline [email protected]. is Tuesday, January 25, 2011. Individuals Contact Person: Anyone interested in postmarketing studies, including who need special assistance, such as sign obtaining other relevant information should clinical trials, for human drug and language interpretation or other reasonable write or contact Alaina M. Harris, Maternal biological products (section 506B of the accommodations should indicate their needs and Child Health Bureau, Health Resources FD&C Act (21 U.S.C. 356b)). Section on the registration Web site. The deadline for and Services Administration, Room 18A–19, 506B of the FD&C Act provides FDA special accommodation requests is Friday, with additional authority to monitor the January 21, 2011. If there are technical Parklawn Building, 5600 Fishers Lane, problems gaining access to the Web site, Rockville, Maryland 20857, Telephone (301) progress of a postmarketing study or please contact Maureen Ball, Meetings 443–0721, [email protected]. More clinical trial that an applicant has been Coordinator at [email protected]. information on the Advisory Committee is required to or has agreed to conduct by Purpose: The Secretary’s Advisory available at http://mchb.hrsa.gov/ requiring the applicant to submit a Committee on Heritable Disorders in heritabledisorderscommittee. report annually providing information

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on the status of the postmarketing enforceable postmarketing requirements and ANDAs under § 314.81(b)(2)(viii). study/clinical trial. This report must and unenforceable postmarketing Furthermore, section 505(o)(3)(E) of the also include reasons, if any, for failure commitments. Therefore, in this notice FD&C Act as amended by FDAAA to complete the study/clinical trial. and report, FDA refers to studies/ requires that applicants report These studies and clinical trials are clinical trials that an applicant is periodically on the status of each intended to further define the safety, required to conduct as ‘‘postmarketing required study/clinical trial and each efficacy, or optimal use of a product and requirements’’ (PMRs) and studies/ study/clinical trial ‘‘otherwise therefore play a vital role in fully clinical trials that an applicant agrees to undertaken * * * to investigate a safety characterizing the product. but is not required to conduct as issue * * *.’’ Under the Modernization Act, ‘‘postmarketing commitments’’ (PMCs). According to the regulations, once a commitments to conduct postmarketing Both are addressed in this notice and PMR has been required or a PMC has studies or clinical trials included both report. been agreed upon, an applicant must report on the progress of the PMR/PMC studies/clinical trials that applicants C. FDA’s Implementing Regulations agreed to conduct as well as studies/ on the anniversary of the product’s clinical trials that applicants were On October 30, 2000 (65 FR 64607), approval until the PMR/PMC is required to conduct under FDA FDA published a final rule completed or terminated and FDA regulations.1 implementing section 130 of the determines that the PMR/PMC has been Modernization Act. This rule modified fulfilled or that the PMR/PMC is either B. The Food and Drug Administration the annual report requirements for new no longer feasible or would no longer Amendments Act of 2007 drug applications (NDAs) and provide useful information. The annual On September 27, 2007, the President abbreviated new drug applications progress report must include a signed Public Law 110–85, the Food and (ANDAs) by revising § 314.81(b)(2)(vii) description of the PMR/PMC, a schedule Drug Administration Amendments Act (21 CFR 314.81(b)(2)(vii)). The rule also for completing the PMR/PMC, and a of 2007 (FDAAA). Section 901, in Title created a new annual reporting characterization of the current status of IX of FDAAA, created a new section requirement for biologics license the PMR/PMC. The report must also 505(o) of the FD&C Act authorizing FDA applications (BLAs) by establishing provide an explanation of the PMR/PMC to require certain studies and clinical § 601.70 (21 CFR 601.70). The rule status by describing briefly the progress trials for human drug and biological described the content and format of the of the PMR/PMC. A PMR/PMC schedule products approved under section 505 of annual progress report, and clarified the is expected to include the actual or the FD&C Act or section 351 of the scope of the reporting requirement and projected dates for the following: (1) Public Health Service Act. Under the timing for submission of the annual Submission of the final protocol to FDA, FDAAA, FDA has been given additional progress reports. The rule became (2) completion of the study/clinical authority to require applicants to effective on April 30, 2001. The trial, and (3) submission of the final conduct and report on postmarketing regulations apply only to human drug report to FDA. The status of the PMR/ studies and clinical trials to assess a and biological products that are PMC must be described in the annual known serious risk, assess signals of approved under NDAs, ANDAs, and report according to the following serious risk, or identify an unexpected BLAs. They do not apply to animal definitions: serious risk related to the use of a drugs or to biological products regulated • Pending: The study/clinical trial under the medical device authorities. product. This new authority became has not been initiated (i.e., no subjects The reporting requirements under effective on March 25, 2008. FDA may have been enrolled or animals dosed), §§ 314.81(b)(2)(vii) and 601.70 apply to now take enforcement action against but does not meet the criteria for PMRs and PMCs made on or before the delayed (i.e., the original projected date applicants who fail to conduct studies enactment of the Modernization Act for initiation of subject accrual or and clinical trials required under (November 21, 1997), as well as those initiation of animal dosing has not FDAAA, as well as studies and clinical made after that date. Therefore, studies passed); trials required under FDA regulations and clinical trials required under (see sections 505(o)(1), 502(z), and • Ongoing: The study/clinical trial is FDAAA are covered by the reporting proceeding according to or ahead of the 303(f)(4) of the FD&C Act; 21 U.S.C. requirements in these regulations. 355(o)(1), 352(z), and 333(f)(4)). original schedule; Sections 314.81(b)(2)(vii) and 601.70 • Delayed: The study/clinical trial is Although regulations implementing require applicants of approved drug and the Modernization Act postmarketing behind the original schedule; biological products to submit annually a • Terminated: The study/clinical trial authorities use the term ‘‘postmarketing report on the status of each clinical commitment’’ to refer to both required was ended before completion, but a safety, clinical efficacy, clinical final report has not been submitted to studies and studies applicants agree to pharmacology, and nonclinical conduct, in light of the new authorities FDA; or toxicology study/clinical trial that is • Submitted: The study/clinical trial enacted in FDAAA, FDA has decided it required by FDA or that they have is important to distinguish between has been completed or terminated, and committed to conduct either at the time a final report has been submitted to of approval or after approval of their 1 Before passage of FDAAA, FDA could require FDA. postmarketing studies and clinical trials under the NDA, ANDA, or BLA. The status of Databases containing information on following circumstances: To verify and describe PMCs concerning chemistry, PMRs/PMCs are maintained at the clinical benefit for a human drug approved in manufacturing, and production controls Center for Drug Evaluation and Research accordance with the accelerated approval and the status of other studies/clinical (CDER) and the Center for Biologics provisions in section 506(b)(2)(A) of the FD&C Act (21 U.S.C. 356(b)(2)(A); 21 CFR 314.510 and trials conducted on an applicant’s own Evaluation and Research (CBER). 601.41); for a drug approved on the basis of animal initiative are not required to be reported efficacy data because human efficacy trials are not under §§ 314.81(b)(2)(vii) and 601.70 II. Summary of Information From ethical or feasible (21 CFR 314.610(b)(1) and and are not addressed in this report. It Postmarketing Status Reports 601.91(b)(1)); and for marketed drugs that are not This report, published to fulfill the adequately labeled for children under section 505B should be noted, however, that of the FD&C Act (Pediatric Research Equity Act (21 applicants are required to report to FDA annual reporting requirement under the U.S.C. 355c; Public Law 108–155)). on these commitments made for NDAs Modernization Act, summarizes the

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status of PMRs and PMCs as of There were 59 unique applicants with 505B(a)(3) of the FD&C Act, the September 30, 2009. If a requirement or 91 BLAs that had open PMRs/PMCs. initiation of these studies generally is commitment did not have a schedule, or Annual status reports are required to deferred until required safety a postmarketing progress report was not be submitted for each open PMR/PMC information from other studies has first received in the previous 12 months, the within 60 days of the anniversary date been submitted and reviewed. PMRs for PMR/PMC is categorized according to of U.S. approval of the original products approved under the animal the most recent information available to application. In fiscal year 2009 (FY09), efficacy rule (21 CFR 314.600 for drugs; the Agency.2 25 percent (48/193) of NDA/ANDA and 21 CFR 601.90 for biological products) Information in this report covers any 34 percent (31/91) of BLA annual status can be conducted only when the PMR/PMC that was made, in writing, at reports were not submitted within 60 product is used for its indication as a the time of approval or after approval of days of the anniversary date of U.S. counterterrorism measure. In the an application or a supplement to an approval of the original application. Of absence of a public health emergency, application, including PMRs required the annual status reports due but not these studies/clinical trials will remain under FDAAA (section 505(o)(3) of the submitted on time, 100 percent of the pending indefinitely. The next largest FD&C Act), PMRs required under FDA NDA/ANDA and 45 percent (14/31) of category of pending PMRs for drug and regulations (e.g., PMRs required to the BLA reports were submitted before biological products (35 percent) demonstrate clinical benefit of a product the close of FY09 (September 30, 2009). comprises those studies/clinical trials following accelerated approval (see Most PMRs are progressing on required by FDA under FDAAA, which footnote 1 of this document)), and PMCs schedule (91.5 percent for NDAs/ became effective on March 25, 2008. agreed to by the applicant. ANDAs; 92 percent for BLAs). Most Table 3 provides additional detail on Information summarized in this report PMCs are also progressing on schedule the status of off-schedule PMRs. The includes the following: (1) The number (89 percent for NDAs/ANDAs; 75 majority of off-schedule PMRs (which of applicants with open (uncompleted) percent for BLAs). Most of the PMCs account for 8.5 percent of the total for PMRs/PMCs, (2) the number of open that are currently listed in the database NDAs/ANDAs and 9 percent for BLAs) PMRs/PMCs, (3) the status of open were developed before the are delayed according to the original PMRs/PMCs as reported in postmarketing requirements section of schedule milestones (94 percent (31/33) § 314.81(b)(2)(vii) or § 601.70 annual FDAAA took effect.3 for NDAs/ANDAs; 88 percent (7⁄8) for reports, (4) the status of concluded BLAs). In certain situations, the original PMRs/PMCs as determined by FDA, and III. About This Report schedules may have been adjusted for (5) the number of applications with This report provides six separate unanticipated delays in the progress of open PMRs/PMCs for which applicants summary tables. The tables distinguish the study/clinical trial (e.g., difficulties did not submit an annual report within between PMRs and PMCs and between with subject enrollment in a trial for a 60 days of the anniversary date of U.S. on-schedule and off-schedule PMRs and marketed drug or need for additional approval. PMCs according to the original schedule time to analyze results). In this report, Additional information about PMRs/ milestones. On-schedule PMRs/PMCs study/clinical trial status reflects the PMCs submitted by applicants to CDER are categorized as pending, ongoing, or status in relation to the original study/ and CBER is provided on FDA’s Web submitted. Off-schedule PMRs/PMCs clinical trial schedule regardless of site at http://www.fda.gov/Drugs/ that have missed one of the original whether FDA has acknowledged that GuidanceComplianceRegulatory milestone dates are categorized as additional time may be required to Information/Post-marketingPhase delayed or terminated. The tables complete the study/clinical trial. IVCommitments/default.htm. Neither include data as of September 30, 2009. Tables 4 and 5 of this document the Web site nor this notice include Table 1 of this document provides an provide additional detail on the status information about PMCs concerning overall summary of the data on all PMRs of PMCs. Table 4 provides additional chemistry, manufacturing, and controls. and PMCs. Tables 2 and 3 of this detail on the status of on-schedule It is FDA policy not to post information document provide detail on PMRs. PMCs. Pending PMCs comprise 52 on the Web site until it has been Table 2 provides additional detail on percent (449/867) of the on-schedule reviewed for accuracy. Numbers the status of on-schedule PMRs. NDA and ANDA PMCs and 34 percent published in this notice cannot be Table 1 shows that most PMRs (91.5 (82/244) of the on-schedule BLA PMCs. compared with the numbers resulting percent for NDAs/ANDAs and 92 Table 5 provides additional details on from searches of the Web site because percent for BLAs) and most PMCs (89 the status of off-schedule PMCs. The this notice incorporates totals for all percent for NDAs/ANDAs and 75 majority of off-schedule PMCs (which PMRs/PMCs in FDA databases, percent for BLAs) are on schedule. account for 11 percent for NDAs/ including PMRs/PMCs undergoing Overall, of the PMRs that are pending ANDAs and 25 percent for BLAs) are review for accuracy. In addition, the (i.e., have not been initiated), 83 percent delayed according to the original report in this notice will be updated were created within the past 3 years. schedule milestones (90 percent (100/ annually while the Web site is updated Table 2 shows that 62 percent of 111) for NDAs/ANDAs; 98 percent (79/ quarterly (i.e., in January, April, July, pending PMRs for drug and biological 81) for BLAs). As noted above, this and October). products are in response to the Pediatric report reflects the original due dates for Many applicants have more than one Research and Equity Act (PREA), under study/clinical trial results and does not approved product and for many which FDA requires sponsors to study reflect discussions between the Agency products there is more than one PMR or new drugs, when appropriate, for and the sponsor regarding studies/ PMC. Specifically, there were 163 pediatric populations. Under section clinical trials that may require more unique applicants with 242 NDAs/ time for completion. ANDAs that had open PMRs/PMCs. 3 There are existing PMCs established before Table 6 of this document provides FDAAA that might meet current FDAAA standards details about PMRs and PMCs that were 2 Although the data included in this report do not for required safety studies/clinical trials under concluded in the previous year. Most include a summary of reports that sponsors have section 505(o)(3)(B) of the FD&C Act (21 U.S.C. concluded PMRs and PMCs were failed to file by their due date, the Agency notes 355(o)(3)(B)). Under section 505(o)(3)(c), the that it may take appropriate regulatory action in the Agency may convert pre-existing PMCs into PMRs fulfilled (60 percent of NDA/ANDA event reports are not filed on a timely basis. if it becomes aware of new safety information. PMRs and 56 percent of BLA PMRs; 79

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percent of NDA/ANDA PMCs and 82 significant increase in the number of concluded PMCs for drug and biological percent of BLA PMCs). Compared to concluded PMRs and the number of products. FY08, in FY09 there has been a

TABLE 1—SUMMARY OF POSTMARKETING REQUIREMENTS AND COMMITMENTS [Numbers as of September 30, 2009]

NDA/ANDA >BLA (% of total PMR (% of total PMR or % of total PMC) or % of total PMC)1

Number of open PMRs ...... 405 96 On-schedule open PMRs (see table 2 of this document) ...... 372 (91.5%) 88 (92%) Off-schedule open PMRs (see table 3 of this document) ...... 33 (8.5%) 8 (9%) Number of open PMCs ...... 978 325 On-schedule open PMCs (see table 4 of this document) ...... 867 (89%) 244 (75%) Off-schedule open PMCs (see table 5 of this document) ...... 111 (11%) 81 (25%) 1 On October 1, 2003, FDA completed a consolidation of certain therapeutic products formerly regulated by CBER into CDER. Consequently, CDER now reviews many BLAs. Fiscal year statistics for postmarketing requirements and commitments for BLAs reviewed by CDER are in- cluded in BLA totals in this table.

TABLE 2—SUMMARY OF ON-SCHEDULE POSTMARKETING REQUIREMENTS [Numbers as of September 30, 2009]

On-schedule open PMRs NDA/ANDA BLA (% of total PMR (% of total PMR) 1

Pending (by type): Accelerated approval ...... 6 4 PREA 2 ...... 185 26 Animal efficacy 3 ...... 2 0 FDAAA safety (since March 25, 2008) ...... 85 35

Total ...... 278 (68.5%) 65 (68%) Ongoing: Accelerated approval ...... 16 5 PREA 2 ...... 23 5 Animal efficacy 3 ...... 0 0 FDAAA safety (since March 25, 2008) ...... 19 9

Total ...... 58 (14%) 19 (20%) Submitted: Accelerated approval ...... 8 0 PREA 2 ...... 23 4 Animal efficacy 3 ...... 0 0 FDAAA safety (since March 25, 2008) ...... 5 0

Total ...... 36 (9%) 4 (4%)

Combined total ...... 372 (91.5%) 88 (92%) 1 See note 1 for table 1 of this document. 2 Many PREA studies have a pending status. PREA studies are usually deferred because the product is ready for approval in adults. Initiation of these studies also may be deferred until additional safety information from other studies has first been submitted and reviewed. 3 PMRs for products approved under the animal efficacy rule (21 CFR 314.600 for drugs; 21 CFR 601.90 for biological products) can be con- ducted only when the product is used for its indication as a counterterrorism measure. In the absence of a public health emergency, these stud- ies/clinical trials will remain pending indefinitely.

TABLE 3—SUMMARY OF OFF-SCHEDULE POSTMARKETING REQUIREMENTS [Numbers as of September 30, 2009]

Off-schedule open PMRs NDA/ANDA BLA (% of total PMR) (% of total PMR) 1

Delayed Accelerated approval ...... 3 2 PREA ...... 28 5 Animal efficacy ...... 0 0 FDAAA safety (since March 25, 2008) ...... 0 0

Total ...... 31 (8%) 7 (12%)

Terminated ...... 2 (0.5%) 1 (1%)

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TABLE 3—SUMMARY OF OFF-SCHEDULE POSTMARKETING REQUIREMENTS—Continued [Numbers as of September 30, 2009]

Off-schedule open PMRs NDA/ANDA BLA (% of total PMR) (% of total PMR) 1

Combined total ...... 33 8 (8.5%) (9%) 1 See note 1 for table 1 of this document.

TABLE 4—SUMMARY OF ON-SCHEDULE POSTMARKETING COMMITMENTS [Numbers as of September 30, 2009]

On-Schedule Open PMCs NDA/ANDA BLA (% of total PMC) (% of total PMC) 1

Pending ...... 449 (46%) 82 (25%) Ongoing ...... 147 (15%) 84 (26%) Submitted ...... 271 (28%) 78 (24%)

Combined total ...... 867 (89%) 244 (75%) 1 See note 1 for table 1 of this document.

TABLE 5—SUMMARY OF OFF-SCHEDULE POSTMARKETING COMMITMENTS [Numbers as of September 30, 2009]

Off-Schedule Open PMCs NDA/ANDA BLA (% of total PMC) (% of total PMC) 1

Delayed ...... 100 (10%) 79 (24%) Terminated ...... 11 (1%) 2 (1%)

Combined total ...... 111 (11%) 81 (25%) 1 See note 1 for table 1 of this document.

TABLE 6—SUMMARY OF CONCLUDED POSTMARKETING REQUIREMENTS AND COMMITMENTS [October 1, 2008 to October 1, 2009]

NDA/ANDA BLA (% of total) (% of total) 1

Concluded PMRs: Requirement met (fulfilled) ...... 28 (60%) 5 (56%) Requirement not met (released and new revised requirement issued) ...... 7 (15%) 2 (22%) Requirement no longer feasible or product withdrawn (released) ...... 12 (25%) 2 (22%)

Total ...... 47 9 Concluded PMCs: Commitment met (fulfilled) ...... 259 (79%) 32 (82%) Commitment not met (released and new revised requirement/commitment issued) ...... 21 (6%) 0 Commitment no longer feasible or product withdrawn (released) ...... 48 (15%) 7 (18%)

Total ...... 328 39 1 See note 1 for table 1 of this document.

Dated: November 3, 2010. DEPARTMENT OF HEALTH AND Services Administration (HRSA) (60 FR David Dorsey, HUMAN SERVICES 56605, as amended November 6, 1995; Acting Deputy Commissioner for Policy, as last amended at 75 FR 61157–61160 Planning and Budget. Health Resources and Services dated October 4, 2010). [FR Doc. 2010–28193 Filed 11–8–10; 8:45 am] Administration This notice reflects organizational changes to the Health Resources and BILLING CODE 4160–01–P Statement of Organization, Functions Services Administration. Specifically, and Delegations of Authority this notice updates the Office of Information Technology (RB5) This notice amends Part R of the functional statement to better align Statement of Organization, Functions functional responsibility, improve the and Delegations of Authority of the management and delivery of Department of Health and Human information technology services, Services (HHS), Health Resources and improve management and

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administrative efficiencies, and Implements, coordinates, and EA and strategic objectives, and optimize use of available staff resources. administers security and privacy incorporating security standards as a programs to protect the information component of the EA process. Chapter RB5—Office of Information resources of HRSA in compliance with Technology Division of Data and Information legislation, Executive Orders, directives Services (RB55) Section RB5–10, Organization of the Office of Management and Budget (OMB), or other mandated requirements The Division of Data and Information Delete in its entirety and replace with Services (DIS) develops and maintains the following: e.g., Presidential Decision Directive 63, OMB Circular A–130, the National an overall data and information The Office of Information Technology Security Agency, the Privacy Act, and management strategy for HRSA that is (RB5) is headed by the Chief Information other Federal agencies; (2) executes the integrated with HHS and Government- Officer, who reports directly to the Chief Agency’s Risk Management Program, wide strategies, including: (1) Serves as Operating Officer (RB) who reports directly evaluates and assists with the HRSA’s coordination center for data to the Administrator, Health Resources and transparency and Open Government Services Administration. The Office of implementation of safeguards to protect Information Technology includes the major information systems, and IT data initiatives; (2) provides for HRSA’s following components: infrastructure; and (3) manages the data quality and ensures that data (1) Office of the Director (RB5); development, implementation, and required for HRSA’s enterprise (2) Division of Capital Planning, evaluation of the HRSA information information requirements are captured Architecture and Project Management technology security and privacy training in appropriate enterprise applications (RB52); program to meet the requirements as and that necessary data repositories are (3) Division of Data and Information mandated by OMB Circular A–130, the built and maintained; (3) evaluates and Services (RB55); Computer Security Act, and Privacy integrates emerging technology to (4) Division of Enterprise Solutions and Act. facilitate the translation of data and Applications Management (RB56); information from data repositories into (5) Division of IT Management Support Division of Capital Planning, Services (RB57); electronic formats for internal and Architecture and Project Management external dissemination; (4) identifies (6) Division of IT Operational Support (RB52) Services (RB58); and information needs across HRSA and (7) Division of Web Support and The Division of Capital Planning, develops approaches for meeting those Collaboration Services (RB59). Architecture and Project Management needs using appropriate technologies, (CPAPM) coordinates HRSA’s capital including development and Section RB5–20, Functions planning and investment control (CPIC), maintenance of an enterprise reporting (1) Delete the functional statement for Enterprise Architecture (EA) and platform and a geospatial data the Office of Information Technology Enterprise Project Life Cycle (EPLC) warehouse; (5) enhances and expands (RB5) and replace in its entirety. processes for Information Technology use and utility of HRSA’s data by Office of the Director and Chief (IT) including: (1) Provides direct providing basic analytic and user Information Officer (RB5) planning development and support to support, develops and maintains a range assure that IT activities support and of information products for internal and The Chief Information Officer (CIO) is achieve agency business planning and external users, and demonstrates responsible for the organization, mission objectives; (2) coordinates the potential uses of information in management, and administrative development and review of policies and supporting management decisions; (6) functions necessary to carry out the procedures for IT Capital Planning and provides leadership and establishes responsibilities of the CIO including: (1) Investment Control, Earned Value policy to address legislative or Provides organizational development, Management, Enterprise Architecture, regulatory requirements in its areas of investment control, budget formulation IT project management, and the EPLC responsibility; and (7) advises HRSA’s and execution, policy development, methodology; (3) supports the Budget Chief Information Officer (CIO) on strategic and tactical planning, and Office in its evaluation of IT initiatives, technical and analytical support it can performance monitoring; (2) provides and preparation of Agency, make available to other HRSA Bureaus leadership in the development, review departmental and OMB Budget Exhibits and Offices, particularly in support of and implementation of policies and and documents; (4) works to obtain the HRSA Public Health Steering procedures to promote improved required information and analyze it as Committee and the HRSA Office of information technology management appropriate; coordinates control and Planning, Analysis and Evaluation capabilities and best practices evaluation review of ongoing IT projects (OPAE). throughout HRSA; and (3) coordinates and investments, including support to IT workforce issues and works closely the HRSA Enterprise Governance Board Division of Enterprise Solutions and with the departmental Office of Human (EGB) and the Technical and Business Applications Management (RB56) Resources Management on IT Review Board (TBRB) in conducting The Division of Enterprise Solutions recruitment and training issues. such reviews; (5) operates a Project and Applications Management (ESAM) The Chief Information Security Management Office to promote, mentor provides leadership, consultation, and Officer (CISO), reporting to the CIO, and monitor effective use of the EPLC; IT project management services in the provides leadership for, and improve project management skills, definition of Agency business collaborates with, Agency staff to communications and functional user applications architectures, the oversee the implementation of security involvement; assists with project engineering of business processes, the and privacy policy in the management prioritization; reduce project risk and building and deployment of of their IT systems, and plans all monitors progress and budget; and (6) applications, and the development, activities associated with Federal coordinates the Agency’s Enterprise maintenance and management of Information Security Management Act Architecture (EA) efforts with the enterprise systems and data collections (FISMA) or other agency security and capital planning process, ensuring the efforts, including: (1) Manages the privacy initiatives, and also carries out suitability and consistency of application and data architecture the responsibilities including: (1) technology investments with HRSA’s definition, controlling software

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configuration management, data enterprise computing environment; (2) management tools and Web- modeling, database design, directs and manages the support and conferencing tools. development, management and acquisition of HRSA network and Section RB5–30, Delegations of stewardship services for enterprise and desktop hardware, servers, wireless Authority small system business process owners; communication devices, and software (2) manages the systems development licenses; (3) is responsible for the HRSA All delegations of authority and re- lifecycle by facilitating business process Data Center and the operation and delegations of authority made to HRSA engineering efforts, systems maintenance of a complex, high- officials that were in effect immediately requirements definition, and provides availability network infrastructure on prior to this reorganization, and that are oversight for application change which mission-critical applications are consistent with this reorganization, management control; (3) provides made available 24 hours per day, 7 days shall continue in effect pending further enterprise application user training, per week; (4) controls infrastructure re-delegation. Tier-3 assistance, and is responsible for configuration management, installations This reorganization is upon date of end-to-end application building, and upgrades, security perimeter signature. deployment, maintenance and data protection, and system resource access; Dated: November 1, 2010. security assurance; (4) defines the (5) coordinates IT activities for Mary K. Wakefield, Agency business applications Continuity of Operations Planning architecture, engineers technology for (COOP) Agency-wide including Administrator. business processes, builds, deploys, provisioning and maintaining IT [FR Doc. 2010–28189 Filed 11–8–10; 8:45 am] maintains and manages enterprise infrastructure and hardware at BILLING CODE 4165–15–P systems and data collections efforts; (5) designated COOP locations to support applies business applications emergency and COOP requirements; (6) architecture to process specific systems; maintains workstation hardware and DEPARTMENT OF HOMELAND (6) builds, deploys, maintains and software configuration management SECURITY manages organization specific systems controls; (7) in close coordination with and unique data collection efforts; and the CISO, the ITOSS implements HRSA U.S. Customs and Border Protection (7) directs database maintenance, level policies, procedures, guidelines, Agency Information Collection modification, security, and management and standards for the incorporation of Activities: Free Trade Agreements services for system process owners. intrusion detection systems, vulnerability scanning, forensic and Division of IT Management Support AGENCY: U.S. Customs and Border other security tools used to monitor Services (RB57) Protection, Department of Homeland automated systems and subsystems to Security. The Division of IT Management safeguard HRSA’s electronic ACTION: Support Services (ITMSS) represents the 30-day notice and request for information and data assets; (8) the comments; Extension and revision of an CIO and other OIT divisions on IT Chief Technology Officer (CTO), policy and other administrative and IT existing information collection: 1651– reporting to the ITOSS Division Director 0117. management issues, including: (1) is responsible for assessing emerging Collects customer feedback from the technologies and the subsequent impact SUMMARY: U.S. Customs and Border programmatic and business areas of the on current infrastructure restraints and Protection (CBP) of the Department of Agency and provides a central point for program objectives; (9) coordinates and Homeland Security will be submitting a variety of IT management and support engages with all OIT Divisions and the following information collection functions; (2) provides oversight and Branches to insure that advanced request to the Office of Management and management of budget formulation and technology is being utilized to achieve Budget (OMB) for review and approval execution; (3) serves as the focal point program objectives through innovative in accordance with the Paperwork to HRSA contracts and provides technology use; and (10) provides Reduction Act: Free Trade Agreements. centralized procurement services for the leadership and establishes policy and This is a proposed extension of an Office of Information Technology; (4) provides oversight for Agency IT information collection that was serves as the coordinator for Inter- configuration management. previously approved. CBP is proposing agency and Service Level Agreements; that this information collection be (5) oversees the acquisition of HRSA IT Division of Web Support and Collaboration Services (RB59) extended with a change to the burden hardware, wireless communication hours. This document is published to The Division of Web Support and devices, and software licenses; (6) obtain comments from the public and Collaboration Services (WSCS) (1) accountable for property life cycle affected agencies. This proposed provides consultation, assistance and management and tracking of Agency- information collection was previously services to HRSA to promote and wide IT capital equipment; (7) provides published in the Federal Register on manage information dissemination, oversight for outsourced network and September 7, 2010 (Volume 75, Page collaboration and business process desktop services to staff in HRSA 54352), allowing for a 60-day comment Regional Offices (ROs); (8) provides improvement solutions through the use of Web-based tools; (2) in collaboration period. This notice allows for an telecommunications accountability, additional 30 days for public comments. oversight, and support; and (9) serves as with the Office of Communications, is responsible for the design, deployment This process is conducted in accordance the focal point for HRSA-wide with 5 CFR 1320.10. initiatives that impact the OIT. and maintenance of HRSA’s internal and external Web sites including DATES: Written comments should be Division of IT Operational Support development and implementation of received on or before December 9, 2010. Services (RB58) related policies and procedures; and (3) ADDRESSES: Interested persons are The Division of IT Operational supports the collaboration and business invited to submit written comments on Support Services (ITOSS) (1) provides needs of HRSA by providing and this proposed information collection to leadership, consultation, training, and supporting an enterprise-wide the Office of Information and Regulatory management services for HRSA’s collaboration platform, business process Affairs, Office of Management and

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Budget. Comments should be addressed Current Actions: This submission is This notice allows for an additional 30 to the OMB Desk Officer for Customs being made to extend the expiration days for public comments. This process and Border Protection, Department of date with a change to the burden hours is conducted in accordance with 5 CFR Homeland Security, and sent via based on the addition of free trade 1320.10. electronic mail to agreements with Oman and Peru. DATES: Written comments should be [email protected] or faxed Type of Review: Extension (with received on or before December 9, 2010. to (202) 395–5806. change) ADDRESSES: Interested persons are SUPPLEMENTARY INFORMATION: U.S. Affected Public: Businesses. invited to submit written comments on Customs and Border Protection (CBP) Estimated Number of Respondents: this proposed information collection to encourages the general public and 116,100. the Office of Information and Regulatory affected Federal agencies to submit Total Number of Estimated Annual Affairs, Office of Management and written comments and suggestions on Responses: 116,100. Budget. Comments should be addressed Estimated time per Response: 12 proposed and/or continuing information to the OMB Desk Officer for Customs minutes. collection requests pursuant to the and Border Protection, Department of Estimated Total Annual Burden Paperwork Reduction Act (Pub. L.104– Homeland Security, and sent via Hours: 23,220. 13). Your comments should address one electronic mail to If additional information is required of the following four points: [email protected] or faxed contact: Tracey Denning, U.S. Customs (1) Evaluate whether the proposed to (202) 395–5806. collection of information is necessary and Border Protection, Regulations and SUPPLEMENTARY INFORMATION: U.S. for the proper performance of the Rulings, Office of International Trade, Customs and Border Protection (CBP) functions of the agency/component, 799 9th Street, NW., 5th Floor, encourages the general public and including whether the information will Washington, DC. 20229–1177, at 202– have practical utility; 325–0265. affected Federal agencies to submit (2) Evaluate the accuracy of the written comments and suggestions on Dated: November 3, 2010. proposed and/or continuing information agencies/components estimate of the Tracey Denning, burden of the proposed collection of collection requests pursuant to the Agency Clearance Officer, U.S. Customs and Paperwork Reduction Act (Pub. L. 104– information, including the validity of Border Protection. the methodology and assumptions used; 13). Your comments should address one (3) Enhance the quality, utility, and [FR Doc. 2010–28214 Filed 11–8–10; 8:45 am] of the following four points: clarity of the information to be BILLING CODE 9111–14–P (1) Evaluate whether the proposed collected; and collection of information is necessary for the (4) Minimize the burden of the proper performance of the functions of the DEPARTMENT OF HOMELAND collections of information on those who agency/component, including whether the SECURITY are to respond, including the use of information will have practical utility; appropriate automated, electronic, (2) Evaluate the accuracy of the agencies/ U.S. Customs And Border Protection components estimate of the burden of the mechanical, or other technological proposed collection of information, including techniques or other forms of Agency Information Collection the validity of the methodology and information. Activities: Importation Bond Structure assumptions used; Title: Free Trade Agreements. (3) Enhance the quality, utility, and clarity OMB Number: 1651–0117. AGENCY: U.S. Customs and Border of the information to be collected; and Form Number: None. Protection, Department of Homeland (4) Minimize the burden of the collections Abstract: Free trade agreements are Security. of information on those who are to respond, established to reduce and eliminate ACTION: 30-day notice and request for including the use of appropriate automated, barriers, strengthen and develop comments; Extension and revision of an electronic, mechanical, or other technological economic relations, and to lay the existing information collection: 1651– techniques or other forms of information. foundation for further cooperation to 0050. Title: Importation Bond Structure. expand and enhance benefits of the OMB Number: 1651–0050. agreement. Free trade agreements SUMMARY: U.S. Customs and Border Form Numbers: 301 and 5297. establish free trade by reduced-duty Protection (CBP) of the Department of Abstract: Bonds are used to assure treatment on imported goods. The Homeland Security will be submitting that duties, taxes, charges, penalties, United States has numerous free trade the following information collection and reimbursable expenses owed to the agreements with various countries, eight request to the Office of Management and Government are paid; to facilitate the of which are included in this Budget (OMB) for review and approval movement of cargo and conveyances information collection: Chile, in accordance with the Paperwork through CBP processing; and to provide Singapore, Australia, Morocco, Bahrain, Reduction Act: Importation Bond legal recourse for the Government for Jordan, Oman, and Peru. These Structure. This is a proposed extension noncompliance with laws and agreements involve collection of data and revision of an information regulations. Any person who is required elements such as information about the collection that was previously to post a bond to secure a customs importer and exporter of the goods, a approved. CBP is proposing that this transaction usually submits the bond on description of the goods, tariff information collection be extended with CBP Form 301, Customs Bond, to CBP. classification number, and the a change to the burden hours and to CBP proposes to revise CBP Form 301 preference criterion in the Rules of CBP Form 301. This document is in order to accurately reflect the changes Origin. published to obtain comments from the that have occurred with regard to CBP Respondents can obtain information public and affected agencies. This bonds. Specifically, the revised Form on how to make claims under these free proposed information collection was 301 will capture the new types of bonds trade agreements by going to http:// previously published in the Federal which have been authorized by law and www.cbp.gov/xp/cgov/trade/ Register (75 FR 50772) on August 17, regulation, as well as better harmonize trade_programs/ 2010, allowing for a 60-day comment this form with current and future international_agreements/free_trade/. period. One comment was received. automation system requirements.

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Section II of the CBP Form 301 will be Form 301, Customs Bond FOR FURTHER INFORMATION CONTACT: revised to specifically cover continuous Estimated Number of Respondents: Jennifer Hass, CBP, Office of activity code bonds for Importer 800,000. Administration, telephone (202) 344– Security Filing, Marine Terminal Total Number of Estimated Annual 1929. You may also visit the Northern Operator, and Intellectual Property Responses: 800,000. Border PEIS Web site at: http:// Rights Samples. Estimated time per Response: 15 www.NorthernBorderPEIS.com. In accordance with public comments minutes. SUPPLEMENTARY INFORMATION: received, CBP also proposes to make the Estimated Total Annual Burden following changes to Form 301: Hours: 200,000. Background Form 5297, Corporate Surety Power of (1) Remove the phrase from Section II On July 6, 2010, CBP published in the ‘‘ Attorney of the form 1a may be checked Federal Register (75 FR 38822) a ’’ Estimated Number of Respondents: independently or with 1, and because document entitled Notice of Intent to these activity codes should not be 500. Total Number of Estimated Annual Prepare Four Programmatic combined. Environmental Impact Statements for (2) In Section II of Form 301, replace Responses: 500. Estimated time per Response: 15 the Northern Border Between the United the term ‘‘Single Entry Bond’’ with the minutes. States and Canada and To Conduct term ‘‘Single Transaction Bond’’, in each Estimated Total Annual Burden Public Scoping Meetings. The notice place it appears, in order to Hours: 125. announced that CBP intended to accommodate transactions that are not If additional information is required prepare four Programmatic entries. contact: Tracey Denning, U.S. Customs Environmental Impact Statements (3) In Section III of Form 301, replace and Border Protection, Regulations and the term ‘‘Importer Name’’, in each place (PEISs) to analyze the environmental Rulings, Office of International Trade, effects of current and potential future it appears, with the term ‘‘Name’’ to 799 9th Street, NW., 5th Floor, accommodate parties other than CBP border security activities along the Washington, DC 20229–1177, at 202– Northern Border between the United importers that use Form 301. 325–0265. (4) In Section III of Form 301, replace States and Canada. Each PEIS was to the term ‘‘Importer Number’’, in each Dated: November 3, 2010. cover one region of the Northern Border: place it appears, with the term Tracey Denning, the New England region, the Great Lakes ‘‘Identification Number’’ in order to Agency Clearance Officer, U.S. Customs and region, the region east of the Rocky include all the types of filing numbers Border Protection. Mountains, and the region west of the listed in 19 CFR 24.5. [FR Doc. 2010–28213 Filed 11–8–10; 8:45 am] Rocky Mountains. (5) Delete the term ‘‘Form 5297’’ in BILLING CODE 9111–14–P The notice also announced and both Footnote 8 and Footnote 9 of Form initiated the public scoping process to 301 so that it does not exclude gather information from the public in electronic filing of the information. DEPARTMENT OF HOMELAND preparation for drafting the PEISs. In (1) Create a continuation sheet for SECURITY this scoping process, CBP solicited Form 301. written comments from the public and Bonds are usually executed by an U.S. Customs and Border Protection held 11 public scoping meetings in agent of the surety. The surety company locations near the Northern Border. CBP Notice of Intent To Prepare One grants authority to the agent via CBP conducted this public scoping process Programmatic Environmental Impact Form 5297, Corporate Surety Power of in order to obtain input concerning the Statement for the Northern Border Attorney. Once this form is filed with range of environmental considerations Between the United States and Canada CBP, the validity of the authority of the for inclusion within the PEISs. As agent executing the bond and the name AGENCY: U.S. Customs and Border indicated in the prior notice, the of the surety can be verified to the Protection, DHS. scoping period concluded on August 5, surety’s grant. The trade community ACTION: Notice of intent. 2010. now has the ability to submit the As a result of input received during information on CBP Form 5297 via the SUMMARY: U.S. Customs and Border the scoping process, CBP has decided to Internet by using the Automated Protection (CBP) informs the public that refocus its approach and develop one Commercial Environment (ACE) portal. it intends to prepare one Programmatic PEIS covering the entire Northern ACE surety portal account access allows Environmental Impact Statement (PEIS) Border, rather than four separate, sureties to add, revoke, and change their for the Northern Border between the regional PEISs. Through this refocused surety agent powers of attorney United States and Canada. Previously, approach, CBP will further clarify the electronically. The ACE account is CBP had published a notice in the proposed action, alternatives, and available to any surety who applies for Federal Register stating that CBP potential impacts across the four the functionality at http://www.cbp.gov. intended to prepare four such previously identified regions. CBP’s CBP Forms 301 and 5297 are accessible documents, each covering a different principal reasons for preparing a single at http://www.cbp.gov/xp/cgov/toolbox/ region of the Northern Border. However, PEIS with sections for each region are: forms/. after conducting a public scoping (1) CBP’s need to identify a single Current Actions: This submission is process, CBP has determined that it unified proposal and alternatives for being made to extend the expiration would be preferable to produce one maintaining or enhancing security along date with a change to the burden hours document covering the entire Northern the Northern Border, and based on revised estimates by CBP. CBP Border to ensure that CBP effectively (2) Certain resources of concern for also proposes to revise CBP Form 301 as analyzes and conveys impacts that this PEIS extend or move across the specified in the ‘‘Abstract Section’’ of occur across the region of the Northern PEIS regions previously identified (e.g. this notice. Border. The overall anticipated area of habitat of various wildlife). Thus, to Type of Review: Extension (with study, extending approximately 100 ensure that CBP effectively analyzes and change). miles south of the Northern Border, will conveys impacts that occur across Affected Public: Businesses. remain the same. regions of the Northern Border, a

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unified PEIS is desirable. The overall project Web site: http:// www.regulations.gov, and will include anticipated area of study, extending www.NorthernBorderPEIS.com. any personal information you provide. approximately 100 miles south of the Dated: November 4, 2010. Therefore, submitting this information Northern Border, remains the same. Rob Janson, makes it public. You may wish to read CBP is continuing to review the Acting Executive Director, Facilities the Privacy Act notice, which can be results of the scoping process and, as Management and Engineering, Office of viewed by clicking on the ‘‘Privacy described in the July 6 notice, will Administration. Notice’’ link in the footer of http:// compile a list of comments received to [FR Doc. 2010–28239 Filed 11–8–10; 8:45 am] www.regulations.gov. be included in a scoping report. This BILLING CODE 9111–14–P You may submit your comments and report will be made available on the material by the methods specified under project Web site: http:// www.NorthernBorderPEIS.com and the ADDRESSES caption. Please submit DEPARTMENT OF HOMELAND your comments and any supporting upon written request. Written requests SECURITY for the scoping report may be made via material by only one means to avoid the e-mail to Federal Emergency Management receipt and review of duplicate [email protected], Agency submissions. subject: Scoping Report, or via mail to [Docket ID FEMA–2010–0066] Docket: The proposed policy is CBP Northern Border PEIS (Scoping available in docket ID FEMA–2010– Report), P.O. Box 3625, McLean, Recovery Publication, P–395, Fire 0066. For access to the docket to read Virginia, 22102. The body of the request Management Assistance Grant background documents or comments should read, ‘‘Request a copy of the Program (FMAGP) Guide received, go to the Federal eRulemaking scoping report for U.S. Customs and Portal at http://www.regulations.gov and AGENCY: Federal Emergency Border Protection Northern Border search for the docket ID. Submitted Management Agency, DHS. PEIS.’’ CBP anticipates the scoping comments may also be inspected at report will be available in November ACTION: Notice of availability; request FEMA, Office of Chief Counsel, Room 2010. for comments. 835, 500 C Street, SW., Washington, DC The information gained from the SUMMARY: 20472. scoping process will aid CBP as it The Federal Emergency prepares the draft PEIS. This draft PEIS Management Agency (FEMA) is II. Background will be followed, after a period of public accepting comments on the Fire comment, with a final PEIS. CBP plans Management Assistance Grant Program This guide describes the FMAGP to use the information derived from the (FMAGP) Guide. The Guide describes basic provisions, application analysis in the PEIS in management, the FMAGP declaration process, procedures, and other related program planning, and decision-making for its eligibility, grant management and policies and guidance. application procedures, and other mission and its environmental FEMA seeks comment on the related program guidance. stewardship responsibilities, as well as proposed policy, which is available DATES: to establish a foundation for future Comments must be received by online at http://www.regulations.gov in December 9, 2010. impact analyses. For complete docket ID FEMA–2010–0066. Based on information, please see the July 6 ADDRESSES: Comments must be the comments received, FEMA may Federal Register notice (75 FR 38822). identified by docket ID FEMA–2010– make appropriate revisions to the 0066 and may be submitted by one of proposed policy. Although FEMA will Next Steps the following methods: consider any comments received in the Federal eRulemaking Portal: http:// This environmental analysis process drafting of the final policy, FEMA will is being conducted pursuant to the www.regulations.gov. Follow the not provide a response to comments National Environmental Policy Act of instructions for submitting comments. document. When or if FEMA issues a 1969, 42 U.S.C. 4321 et seq., (NEPA), Please note that this proposed policy is the Council on Environmental Quality not a rulemaking and the Federal final policy, FEMA will publish a notice Regulations for Implementing the NEPA Rulemaking Portal is being utilized only of availability in the Federal Register (40 CFR parts 1500–1508), and as a mechanism for receiving comments. and make the final policy available at Department of Homeland Security Mail: Office of Chief Counsel, Federal http://www.regulations.gov. Directive 023–01 (renumbered from Emergency Management Agency, Room Authority: 42 U.S.C. 5121–5207; 44 CFR 5100.1), Environmental Planning 835, 500 C Street, SW., Washington, DC part 206. Program of April 19, 2006. In 20472–3100. accordance with NEPA, the draft PEIS FOR FURTHER INFORMATION CONTACT: Robert A. Farmer, will be made available to the public for Allen Wineland, Federal Emergency Deputy Director, Office of Policy and Program review and comment through a Notice Management Agency, 500 C Street SW., Analysis,Federal Emergency Management of Availability (NOA) in the Federal Washington, DC 20472, allen. Agency. Register. The NOA will provide [email protected], 202–646–3661. [FR Doc. 2010–28205 Filed 11–8–10; 8:45 am] directions for obtaining copies of the SUPPLEMENTARY INFORMATION: BILLING CODE 9111–23–P draft PEIS as well as dates and locations for any associated public participation I. Public Participation meetings. After a public comment Instructions: All submissions received period on the draft PEIS, CBP will must include the agency name and complete a final PEIS. CBP will docket ID. Regardless of the method continue to announce information on used for submitting comments or exact locations and times of public material, all submissions will be posted, meetings as well as project information without change, to the Federal through local newspapers and the eRulemaking Portal at http://

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DEPARTMENT OF HOUSING AND this proposal. Comments should refer to burden of the proposed collection of URBAN DEVELOPMENT the proposal by name and/or OMB information; (3) Enhance the quality, approval Number (2577–0249) and utility, and clarity of the information to [Docket No. FR–5376–N–106] should be sent to: HUD Desk Officer, be collected; and (4) Minimize the Notice of Submission of Proposed Office of Management and Budget, New burden of the collection of information Information Collection to OMB; Executive Office Building, Washington, on those who are to respond; including Implementation of the Violence DC 20503; fax: 202–395–5806. E-mail: through the use of appropriate _ Against Women and Department of OIRA [email protected]. automated collection techniques or Justice Reauthorization Act of 2005 FOR FURTHER INFORMATION CONTACT: other forms of information technology, Colette Pollard, Reports Management e.g., permitting electronic submission of AGENCY: Office of the Chief Information responses. Officer, HUD. Officer, QDAM, Department of Housing and Urban Development, 451 Seventh ACTION: Notice. This Notice Also Lists the Following Street, SW., Washington, DC 20410; e- Information SUMMARY: The proposed information mail Colette Pollard at collection requirement described below [email protected] or telephone Title of Proposal: Implementation of has been submitted to the Office of (202) 402–3400. This is not a toll-free the Violence Against Women and Management and Budget (OMB) for number. Copies of available documents Department of Justice Reauthorization review, as required by the Paperwork submitted to OMB may be obtained Act of 2005. Reduction Act. The Department is from Ms. Pollard. OMB Approval Number: 2577–0249. soliciting public comments on the SUPPLEMENTARY INFORMATION: This Form Numbers: Hud-50066. subject proposal. notice informs the public that the Residents residing In the public Department of Housing and Urban Description of the Need for the housing and Section 8 voucher Development has submitted to OMB a Information and its Proposed Use: programs will submit a HUD approval request for approval of the Information Residents residing In the public housing certification form that attest that the collection described below. This notice and Section 8 voucher programs will individual is a victim of abuse and that is soliciting comments from members of submit a HUD approval certification the incidences of abuse are bona fide. the public and affecting agencies form that attest that the individual is a Without the certification, a PHA or concerning the proposed collection of victim of abuse and that the incidences owner may terminate assistance. The information to: (1) Evaluate whether the of abuse are bona fide. Without the information provided to the PHA and proposed collection of information is certification, a PHA or owner may owner is confidential. necessary for the proper performance of terminate assistance. The information DATES: Comments Due Date: December the functions of the agency, including provided to the PHA and owner is 9, 2010. whether the information will have confidential. ADDRESSES: Interested persons are practical utility; (2) Evaluate the Frequency of Submission: Other one invited to submit comments regarding accuracy of the agency’s estimate of the time.

Number of × Annual × Hours per respondents responses response = Burden hours

Reporting Burden ...... 200 1 24 4,800

Total Estimated Burden Hours: 4,800. ACTION: Notice. ADDRESSES: Interested persons are Status: Extension without change of a invited to submit comments regarding currently approved collection. SUMMARY: The proposed information this proposal. Comments should refer to collection requirement described below Authority: Section 3507 of the Paperwork the proposal by name and/or OMB has been submitted to the Office of approval Number (2501–0014) and Reduction Act of 1995, 44 U.S.C. 35, as Management and Budget (OMB) for amended. should be sent to: HUD Desk Officer, review, as required by the Paperwork Dated: November 3, 2010. Office of Management and Budget, New Reduction Act. The Department is Executive Office Building, Washington, Colette Pollard, soliciting public comments on the DC 20503; fax: 202–395–5806. E-mail: Departmental Reports Management Officer, subject proposal. [email protected]. Office of the Chief Information Officer. Section 214 of the Housing and [FR Doc. 2010–28286 Filed 11–8–10; 8:45 am] Community Development Act of 1980, FOR FURTHER INFORMATION CONTACT: BILLING CODE 4210–67–P as amended, probibits HUD from Colette Pollard, Reports Management making financial assistance available for Officer, QDAM, Department of Housing noncitizens, unless they meet one of the and Urban Development, 451 Seventh DEPARTMENT OF HOUSING AND categories of eligible immigration status Street, SW., Washington, DC 20410; e- URBAN DEVELOPMENT specified in Section 214. Prior to being mail Colette Pollard at admitted, all eligible noncitizens [email protected] or telephone [Docket No. FR–5376–N–105] younger than age 62 must sign a (202) 402–3400. This is not a toll-free declaration of their status and a number. Copies of available documents Notice of Submission of Proposed verification consent form and provide submitted to OMB may be obtained Information Collection to OMB; their original Immigration and from Ms. Pollard. Restrictions on Assistance to Naturalization Service (INS) Noncitizens SUPPLEMENTARY INFORMATION: This documentation. notice informs the public that the AGENCY: Office of the Chief Information DATES: Comments Due Date: December Department of Housing and Urban Officer, HUD. 9, 2010. Development has submitted to OMB a

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request for approval of the Information through the use of appropriate Description of the Need for the collection described below. This notice automated collection techniques or Information and its Proposed Use: is soliciting comments from members of other forms of information technology, Section 214 of the Housing and the public and affecting agencies e.g., permitting electronic submission of Community Development Act of 1980, concerning the proposed collection of responses. as amended, probibits HUD from information to: (1) Evaluate whether the This Notice Also Lists the Following making financial assistance available for proposed collection of information is Information noncitizens, unless they meet one of the necessary for the proper performance of categories of eligible immigration status Title of Proposal: Restrictions on the functions of the agency, including specified in Section 214. Prior to being Assistance to Noncitizens. admitted, all eligible noncitizens whether the information will have OMB Approval Number: 2501–0014. practical utility; (2) Evaluate the Form Numbers: HUD 9886–Arabic, younger than age 62 must sign a accuracy of the agency’s estimate of the HUD 9886–Chinese, HUD 9886–Korean, declaration of their status and a burden of the proposed collection of HUD–9886, HUD–9887–9887A, HUD verification consent form and provide information; (3) Enhance the quality, 9886–LAO, HUD 9886–Cambodian, their original Immigration and utility, and clarity of the information to HUD 9886–Vietnamese, HUD 9886– Naturalization Service (INS) be collected; and (4) Minimize the Spanish, HUD 9886–Creole, HUD 9886– documentation. burden of the collection of information Russian, HUD 9886–Hmong, HUD Frequency of Submission: On on those who are to respond; including 9886–French. occasion, Annually.

Number of × Annual × Hours per respondents responses response = Burden hours

Reporting Burden ...... 2,886,392 3.739 0.0174 188,737

Total Estimated Burden Hours: the borrower and proposed mortgage proposed collection of information is 188,737. transaction for FHA’s insurance necessary for the proper performance of Status: Revision of a currently endorsement. Lenders seeking FHA’s the functions of the agency, including approved collection. insurance prepare these forms. whether the information will have Authority: Section 3507 of the Paperwork DATES: Comments Due Date: December practical utility; (2) Evaluate the Reduction Act of 1995, 44 U.S.C. 35, as 9, 2010. accuracy of the agency’s estimate of the amended. ADDRESSES: Interested persons are burden of the proposed collection of Dated: November 03, 2010. invited to submit comments regarding information; (3) Enhance the quality, Colette Pollard, this proposal. Comments should refer to utility, and clarity of the information to Departmental Reports Management Officer, the proposal by name and/or OMB be collected; and (4) Minimize the Office of the Chief Information Officer. Approval Number (2502–0059) and burden of the collection of information [FR Doc. 2010–28291 Filed 11–8–10; 8:45 am] should be sent to: HUD Desk Officer, on those who are to respond; including through the use of appropriate BILLING CODE 4210–67–P Office of Management and Budget, New Executive Office Building, Washington, automated collection techniques or DC 20503; fax: 202–395–5806. E-mail: other forms of information technology, DEPARTMENT OF HOUSING AND [email protected]. e.g., permitting electronic submission of responses. URBAN DEVELOPMENT FOR FURTHER INFORMATION CONTACT: [Docket No. FR–5376–N–103] Colette Pollard, Reports Management This notice also lists the following Officer, QDAM, Department of Housing information: Notice of Submission of Proposed and Urban Development, 451 Seventh Title of Proposal: Informed Consumer Information Collection to OMB; Street, SW., Washington, DC 20410; e- Choice Notice and Application for FHA Informed Consumer Choice Notice and mail Colette Pollard at Insured Mortgage. Application for FHA Insured Mortgage [email protected] or telephone OMB Approval Number: 2502–0059. (202) 402–3400. This is not a toll-free AGENCY: Office of the Chief Information number. Copies of available documents Form Numbers: HUD 92900–LT, Officer, HUD. submitted to OMB may be obtained HUD–92900–A, HUD–92561, HUD– ACTION: Notice. from Ms. Pollard. 92544. SUMMARY: The proposed information SUPPLEMENTARY INFORMATION: This Description of the Need for the collection requirement described below notice informs the public that the Information and its Proposed Use: The has been submitted to the Office of Department of Housing and Urban forms and related documents are needed Management and Budget (OMB) for Development has submitted to OMB a to determine the eligibility of the review, as required by the Paperwork request for approval of the Information borrower and proposed mortgage Reduction Act. The Department is collection described below. This notice transaction for FHA’s insurance soliciting public comments on the is soliciting comments from members of endorsement. Lenders seeking FHA’s subject proposal. the public and affected agencies insurance prepare these forms. The forms and related documents are concerning the proposed collection of Frequency of Submission: On needed to determine the eligibility of information to: (1) Evaluate whether the occasion.

Number of × Annual × Hours per Burden respondents responses response = hours

Reporting Burden ...... 12,240 469.70 0.0832 478,758

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Total Estimated Burden Hours: the adequacy of their existing housing information to: (1) Evaluate whether the 478,758. standards to meet HUD’s minimum proposed collection of information is Status: Revision of a currently requirements. These Standards will necessary for the proper performance of approved collection. protect the Department’s interest by the functions of the agency, including Authority: Section 3507 of the Paperwork requiring certain features of design and whether the information will have Reduction Act of 1995, 44 U.S.C. 35, as construction. practical utility; (2) Evaluate the amended. DATES: Comments Due Date: December accuracy of the agency’s estimate of the Dated: November 3, 2010. 9, 2010. burden of the proposed collection of Colette Pollard, ADDRESSES: Interested persons are information; (3) Enhance the quality, Departmental Reports Management Officer, invited to submit comments regarding utility, and clarity of the information to Office of the Chief Information Officer. this proposal. Comments should refer to be collected; and (4) Minimize the burden of the collection of information [FR Doc. 2010–28296 Filed 11–8–10; 8:45 am] the proposal by name and/or OMB on those who are to respond; including BILLING CODE 4210–67–P approval Number (2502–0321) and should be sent to: HUD Desk Officer, through the use of appropriate Office of Management and Budget, New automated collection techniques or DEPARTMENT OF HOUSING AND Executive Office Building, Washington, other forms of information technology, URBAN DEVELOPMENT DC 20503; fax: 202–395–5806. E-mail: e.g., permitting electronic submission of [email protected]. responses. [Docket No. FR–5376–N–104] FOR FURTHER INFORMATION CONTACT: This Notice also Lists the Following Notice of Submission of Proposed Colette Pollard., Reports Management Information Information Collection to OMB Officer, QDAM, Department of Housing Title of Proposal: Minimum Property Minimum Property Standards for and Urban Development, 451 Seventh Standards for Multifamily and Care- Multifamily and Care-Type Occupancy Street, SW., Washington, DC 20410; e- Type Occupancy Housing. Housing mail Colette Pollard at [email protected] or telephone OMB Approval Number: 2502–0321. AGENCY: Office of the Chief Information (202) 402–3400. This is not a toll-free Form Numbers: None. Officer, HUD. number. Copies of available documents Description of the Need for the ACTION: Notice. submitted to OMB may be obtained Information and its Proposed Use: SUMMARY: The proposed information from Ms. Pollard. This information is collected from collection requirement described below SUPPLEMENTARY INFORMATION: This State and local governments to assess has been submitted to the Office of notice informs the public that the the adequacy of their existing housing Management and Budget (OMB) for Department of Housing and Urban standards to meet HUD’s minimum review, as required by the Paperwork Development has submitted to OMB a requirements. These Standards will Reduction Act. The Department is request for approval of the Information protect the Department’s interest by soliciting public comments on the collection described below. This notice requiring certain features of design and subject proposal. is soliciting comments from members of construction. This information is collected from the public and affecting agencies Frequency of Submission: On State and local governments to assess concerning the proposed collection of occasion.

Number of × Annual × Hours per respondents responses response = Burden hours

Reporting Burden: ...... 1,000 1 8.4 8,400

Total Estimated Burden Hours: 8,400. DEPARTMENT OF THE INTERIOR approval. The information collection Status: Extension without change of a request (ICR) concerns the paperwork Bureau of Ocean Energy Management, currently approved collection. requirements in the regulations under Regulation and Enforcement 30 CFR 250, Subpart I, ‘‘Platforms and Authority: Section 3507 of the Paperwork Structures.’’ Reduction Act of 1995, 44 U.S.C. 35, as [Docket ID No. BOEM–2010–0055] DATES: Submit written comments by amended. BOEMRE Information Collection January 10, 2011. Dated: November 3, 2010. Activity: 1010–0149, Platforms and FOR FURTHER INFORMATION CONTACT: Colette Pollard, Structures, Extension of a Collection; Cheryl Blundon, Regulations and Departmental Reports Management Officer, Comment Request Standards Branch at (703) 787–1607. Office of the Chief Information Officer. AGENCY: Bureau of Ocean Energy You may also contact Cheryl Blundon to [FR Doc. 2010–28294 Filed 11–8–10; 8:45 am] Management, Regulation and obtain a copy, at no cost, of the BILLING CODE 4210–67–P Enforcement (BOEMRE), Interior. regulations that require the subject collection of information. ACTION: Notice of a renewal of an information collection (1010–0149). ADDRESSES: You may submit comments by either of the following methods listed SUMMARY: To comply with the below. Paperwork Reduction Act of 1995 • Electronically: go to http:// (PRA), BOEMRE is inviting comments www.regulations.gov. In the entry titled on a collection of information that we ‘‘Enter Keyword or ID,’’ enter BOEM– will submit to the Office of Management 2010–0055 then click search. Follow the and Budget (OMB) for review and instructions to submit public comments

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and view supporting and related manner * * * to prevent or minimize prevention. More specifically, the materials available for this collection. the likelihood of * * * physical information is used to: BOEMRE will post all comments. obstruction to other users of the water • Review data concerning damage to • E-mail: or subsoil and seabed, or other a platform to assess the adequacy of [email protected]. Mail or occurrences which may cause damage to proposed repairs. hand-carry comments to the Department the environment or to property, or • Review plans for platform of the Interior; Bureau of Ocean Energy endanger life or health.’’ construction (construction is divided Management, Regulation and The Independent Offices into three phases–design, fabrication, Enforcement; Attention: Cheryl Appropriations Act (31 U.S.C. 9701), the and installation) to ensure the structural Blundon; 381 Elden Street, MS–4024; Omnibus Appropriations Bill (Pub. L. integrity of the platform. Herndon, Virginia 20170–4817. Please 104–133, 110 Stat. 1321, April 26, • Review verification plans and reference ICR 1010–0149 in your 1996), and OMB Circular A–25, reports for unique platforms to ensure comment and include your name and authorize Federal agencies to recover that all nonstandard situations are given return address. the full cost of services that confer proper consideration during the design, SUPPLEMENTARY INFORMATION: special benefits. Under the Department fabrication, and installation phases of Title: 30 CFR 250, Subpart I, Platforms of the Interior’s (DOI) implementing platform construction. and Structures. policy, BOEMRE is required to charge • Review platform design, fabrication, OMB Control Number: 1010–0149. fees for services that provide special and installation records to ensure that Abstract: The Outer Continental Shelf benefits or privileges to an identifiable the platform is constructed according to (OCS) Lands Act, as amended (43 U.S.C. non-Federal recipient above and beyond approved plans. 1331 et seq. and 43 U.S.C. 1801 et seq.), those that accrue to the public at large. • authorizes the Secretary of the Interior Review inspection reports to ensure Platform applications are subject to cost (Secretary) to prescribe rules and that platform integrity is maintained for recovery, and BOEMRE regulations regulations to manage the mineral the life of the platform. specify service fees for these requests. resources of the OCS. Such rules and We will protect information from regulations will apply to all operations These authorities and responsibilities respondents considered proprietary conducted under a lease, right-of-use are among those delegated to BOEMRE under the Freedom of Information Act and easement, and pipeline right-of- to ensure that operations in the OCS (5 U.S.C. 552) and its implementing way. Operations on the OCS must will meet statutory requirements; regulations (43 CFR part 2) and under preserve, protect, and develop oil and provide for safety and protection of the regulations at 30 CFR 250.197, Data and natural gas resources in a manner that environment; and result in diligent information to be made available to the is consistent with the need to make such exploration, development, and public or for limited inspection. No resources available to meet the Nation’s production of OCS leases. This ICR items of a sensitive nature are collected. energy needs as rapidly as possible; to addresses the regulations at 30 CFR 250, Responses are mandatory. balance orderly energy resource Subpart I, Platforms and Structures, and Frequency: On occasion, annual. development with protection of human, the associated supplementary notices to Description of Respondents: Potential marine, and coastal environments; to lessees and operators (NTLs) intended respondents comprise Federal oil, gas, ensure the public a fair and equitable to provide clarification, description, or or sulphur lessees and/or operators, return on the resources of the OCS; and explanation of these regulations. their certified verification agents to preserve and maintain free enterprise Regulations at 30 CFR 250 implement (CVAs), and third-party reviewers. competition. these statutory requirements. We use the Estimated Reporting and Section 43 U.S.C. 1356 requires the information submitted under Subpart I Recordkeeping Hour Burden: The issuance of ‘‘* * * regulations which to determine the structural integrity of currently approved annual reporting require that any vessel, rig, platform, or all offshore platforms and floating burden for this collection is 108,933 other vehicle or structure * * * (2) production facilities and to ensure that hours. The following chart details the which is used for activities pursuant to such integrity will be maintained individual components and respective this subchapter, comply * * * with throughout the useful life of these hour burden estimates of this ICR. In such minimum standards of design, structures. We use the information to calculating the burdens, we assumed construction, alteration, and repair as ascertain, on a case-by-case basis, that that respondents perform certain the Secretary * * * establishes * * * .’’ the fixed and floating platforms and requirements in the normal course of Section 43 U.S.C. 1332(6) also states, structures are structurally sound and their activities. We consider these to be ‘‘operations in the [O]uter Continental safe for their intended use to ensure usual and customary and took that into Shelf should be conducted in a safe safety of personnel and pollution account in estimating the burden.

Hour burden Citation: 30 CFR 250 Sub- Reporting and/or recordkeeping requirement part I and related NTLs Non-hour cost burdens

General Requirements for Platforms

900(b), (c), (e); 901(b); 905; Submit application, along with reports/surveys and relevant data, to install new plat- 60. 906; 910(c), (d); 911(c), form or floating production facility or conversion of existing platform for new pur- $21,075 PVP. (g); 912; 913; 919. pose or significant changes to approved applications, including use of alternative $3,018 fixed structure. codes, rules, or standards; CVA changes; pay.gov confirmation receipt; and Plat- $1,536 caisson/well pro- form Verification Program (PVP) plan for design, fabrication and installation of tector. new, fixed, bottom-founded, pile-supported, or concrete-gravity platforms and $3,601 modifications. new floating platforms. Consult as required with BOEMRE and/or USCG. Re/ Submit application for major modification(s)/repairs to any platform; pay.gov con- firmation receipt; and related requirements.

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Hour burden Citation: 30 CFR 250 Sub- Reporting and/or recordkeeping requirement part I and related NTLs Non-hour cost burdens

900(b)(5) ...... Submit application for conversion of the use of an existing mobile offshore drilling 24. unit. 900(c) ...... Notify BOEMRE within 24 hours of damage and emergency repairs and request 16. approval of repairs. 900(e) ...... Re/Submit platform installation date and the final as-built location to the Regional .5. Supervisor within 45 days after platform installation. 901(a); NTLs ...... Submit CVA documentation under API RP 2RD, API RP 2SK, and API RP 2SM ..... 100. 901(a); NTLs ...... Submit hazards analysis documentation under API RP 14J ...... 600. 903* ...... Record original and relevant material test results of all primary structural materials; 100. retain records during all stages of construction. Compile, retain, and provide loca- tion/make available to BOEMRE for the functional life of platform, the as-built drawings, design assumptions/analyses, summary of nondestructive examination records, inspection results, and records of repair not covered elsewhere. 903(c); 905(k) ...... Submit certification statement [a certification statement is not considered informa- 0. tion collection under 5 CFR 1320.3(h)(1); the burden is for the insertion of the lo- cation of the records on the statement and the submittal to BOEMRE—this state- ment submitted with the application]. 905(i) ...... Provide a summary of safety factors utilized in the design of the platform ...... 25.

Platform Verification Program

911(d); 916(c); 917(c); Submit complete schedule of all phases of design, fabrication, and installation with 40. 918(c). required information; also submit Gantt Chart with required information. 911(e); 914 ...... Submit nomination; qualification statement and required documentation for CVA ..... 16. 912(a) ...... Submit design verification plans with your DPP or DOCD ...... Burden covered under 1010–0151. 916(c) ...... Submit interim and final CVA reports and recommendations on design phase ...... 200. 917(a), (c) ...... Submit interim and final CVA reports and recommendations on fabrication phase, 100. including notices to BOEMRE and operator/lessee of fabrication procedure changes or design specification modifications. 918(c) ...... Submit interim and final CVA reports and recommendations on installation phase ... 60. 919(a) ...... Develop in-service inspection plan and keep on file ...... 50. 919(a) ...... Submit annual (November 1 of each year) report on inspection of platforms or float- 80. ing production facilities, including summary of testing results. 919(b) NTL ...... After an environmental event, submit to Regional Supervisor initial report followed 12 (initial) by updates and supporting information. 12 (update). 919(c) NTL ...... Submit results of inspections ...... 120. 920(a) ...... Demonstrate platform is able to withstand environmental loadings for appropriate 20. exposure category. 920(c) ...... Submit application and obtain approval from the Regional Supervisor for mitigation 40. actions (includes operational procedures). 920(e) ...... Submit a list of all platforms you operate, and appropriate supporting data, every 5 40. years or as directed by the Regional Supervisor. 920(f) ...... Obtain approval from the Regional Supervisor for any change in the platform ...... 40. 900 thru 921 ...... General departure and alternative compliance requests not specifically covered 10. elsewhere in Subpart I regulations.

Estimated Reporting and requires each agency ‘‘* * * to provide Agencies must also estimate the non- Recordkeeping Non-Hour Cost Burden: notice * * * and otherwise consult hour paperwork cost burdens to We have identified four non-hour with members of the public and affected respondents or recordkeepers resulting paperwork cost burdens for this agencies concerning each proposed from the collection of information. collection. These costs are submitted collection of information * * *’’. Therefore, if you have costs to generate, with specific applications under Agencies must specifically solicit maintain, and disclose this information, § 250.905(l) and are as follows: $21,075 comments to: (a) Evaluate whether the you should comment and provide your for a platform verification program, proposed collection of information is total capital and startup cost $3,018 for a fixed structure, $1,536 for necessary for the agency to perform its components or annual operation, a Caisson/Well Protector, and $3,601 for duties, including whether the maintenance, and purchase of service a modification. information is useful; (b) evaluate the components. You should describe the Public Disclosure Statement: The PRA methods you use to estimate major cost accuracy of the agency’s estimate of the (44 U.S.C. 3501, et seq.) provides that an factors, including system and burden of the proposed collection of agency may not conduct or sponsor a technology acquisition, expected useful information; (c) enhance the quality, collection of information unless it life of capital equipment, discount displays a currently valid OMB control usefulness, and clarity of the rate(s), and the period over which you number. Until OMB approves a information to be collected; and (d) incur costs. Capital and startup costs collection of information, you are not minimize the burden on the include, among other items, computers obligated to respond. respondents, including the use of and software you purchase to prepare Comments: Before submitting an ICR automated collection techniques or for collecting information, monitoring, to OMB, PRA section 3506(c)(2)(A) other forms of information technology. and record storage facilities. You should

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not include estimates for equipment or paperwork burden of these regulatory spillages, physical obstruction to other services purchased: (i) Before October 1, requirements. users of the waters or subsoil and 1995; (ii) to comply with requirements DATES: Submit written comments by seabed, or other occurrences which may not associated with the information December 9, 2010. cause damage to the environment or to collection; (iii) for reasons other than to property, or endanger life or health.’’ ADDRESSES: Submit comments by either provide information or keep records for This authority and responsibility are fax (202) 395–5806 or e-mail. the Government; or (iv) as part of among those delegated to BOEMRE. To ([email protected]) directly customary and usual business or private carry out these responsibilities, to the Office of Information and practices. BOEMRE issues regulations governing Regulatory Affairs, OMB, Attention: We will summarize written responses oil and gas and sulphur operations in Desk Officer for the Department of the to this notice and address them in our the OCS. This ICR addresses the 30 CFR Interior (1010–0067). Please also submit submission for OMB approval. As a 250, subpart E, regulations a copy of your comments to BOEMRE by result of your comments, we will make implementing these responsibilities. any necessary adjustments to the burden any of the means below. BOEMRE analyzes and evaluates the • Electronically: Go to http:// in our submission to OMB. information and data collected to ensure www.regulations.gov. In the entry titled Public Comment Procedures: Before that planned well-completion ‘‘Enter Keyword or ID,’’ enter docket ID including your address, phone number, operations will protect personnel and BOEM–2010–0053 then click search. e-mail address, or other personal natural resources. They use the analysis Follow the instructions to submit public identifying information in your and evaluation results in the decision to comments and view supporting and comment, you should be aware that approve, disapprove, or require your entire comment—including your related materials available for this modification to the proposed well- personal identifying information—may collection. BOEMRE will post all completion operations. Specifically, be made publicly available at any time. comments. BOEMRE uses the information to • E-mail: While you can ask us in your comment ensure: (a) Compliance with personnel [email protected]. Mail or to withhold your personal identifying safety training requirements; (b) crown hand-carry comments to: Department of information from public review, we block safety device is operating and can the Interior; Bureau of Ocean Energy cannot guarantee that we will be able to be expected to function to avoid Management, Regulation and do so. accidents; (c) proposed operation of the BOEMRE Information Collection Enforcement; Attention: Cheryl annular preventer is technically correct Clearance Officer: Arlene Bajusz (703) Blundon; 381 Elden Street, MS–4024; and provides adequate protection for 787–1025. Herndon, Virginia 20170–4817. Please personnel, property, and natural reference ICR 1010–0067 in your resources; (d) well-completion Dated: November 1, 2010. comment and include your name and Doug Slitor, operations are conducted on well return address. casings that are structurally competent; Acting Chief, Office of Offshore Regulatory FOR FURTHER INFORMATION CONTACT: Programs. and (e) sustained casing pressures are Cheryl Blundon, Regulations and within acceptable limits. [FR Doc. 2010–28278 Filed 11–8–10; 8:45 am] Standards Branch, (703) 787–1607. You Subpart E was revised by rulemaking BILLING CODE 4310–MR–P may also contact Cheryl Blundon to that became effective June 3, 2010 (75 obtain a copy, at no cost, of the FR 23582), and addresses the regulation that requires the subject DEPARTMENT OF THE INTERIOR procedures and requirements necessary collection of information. to monitor, report, and ameliorate Bureau of Ocean Energy Management, SUPPLEMENTARY INFORMATION: sustained casing pressure (SCP) Regulation and Enforcement Title: 30 CFR 250, subpart E, Oil and conditions. BOEMRE uses the Gas Well-Completion Operations. information to determine whether [Docket No. BOEM–2010–0053] OMB Control Number: 1010–0067. production from wells with SCP Abstract: The Outer Continental Shelf BOEMRE Information Collection continues to afford the greatest possible (OCS) Lands Act, 43 U.S.C. 1331 et seq. degree of safety under these conditions Activity: 1010–0067, Oil and Gas Well- and 43 U.S.C. 1801 et seq., requires the Completion Operations, Extension of a and to require corrective action in Secretary of the Interior to preserve, specified cases that pose an ongoing Collection; Submitted for Office of protect, and develop oil and gas Management and Budget (OMB) safety hazard. resources in the OCS in a manner that Responses are mandatory. No Review; Comment Request is consistent with the need to make such questions of a sensitive nature are AGENCY: Bureau of Ocean Energy resources available to meet the Nation’s asked. BOEMRE protects information Management, Regulation and energy needs as rapidly as possible; considered proprietary according to Enforcement (BOEMRE), Interior. balance orderly energy resources Freedom of Information Act (5 U.S.C. ACTION: Notice of extension of an development with protection of the 552) and its implementing regulations information collection (1010–0067). human, marine, and coastal (43 CFR 2), and 30 CFR 250.197, ‘‘Data environment; ensure the public a fair and information to be made available to SUMMARY: To comply with the and equitable return on OCS resources; the public or for limited inspection.’’ Paperwork Reduction Act of 1995 and preserve and maintain free Frequency: Varies by section, but is (PRA), we are notifying the public that enterprise competition. Section 1332(6) mostly on occasion or annual. we have submitted to OMB an of the OCS Lands Act (43 U.S.C. 1332) Description of Respondents: Potential information collection request (ICR) to requires that ‘‘operations in the [O]uter respondents comprise Federal oil, gas, renew approval of the paperwork Continental Shelf should be conducted or sulphur lessees and/or operators. requirements in the regulations under in a safe manner by well-trained Estimated Reporting and 30 CFR 250, subpart E, ‘‘Oil and Gas personnel using technology, Recordkeeping Hour Burden: The Well Completion Operations.’’ This precautions, and techniques sufficient estimated annual hour burden for this notice also provides the public a second to prevent or minimize the likelihood of information collection is a total of opportunity to comment on the blowouts, loss of well control, fires, 41,879 hours. The following chart

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details the individual components and respondents perform certain usual and customary and took that into estimated hour burdens. In calculating requirements in the normal course of account in estimating the burden. the burdens, we assumed that their activities. We consider these to be

Annual Citation 30 CFR 250 Reporting and recordkeeping requirements Hour Average number of burden Subpart E burden annual responses hours

Requests

502 ...... Request an exception to shutting in producible wells be- 5 100 exceptions...... 500 fore moving a well-completion rig or related equipment. 512 ...... Request establishment, amendment, or cancellation of 10 3 field rules ...... 30 well-completion field rules. 500–530 ...... General departure and alternative compliance requests 2 15 requests...... 30 not specifically covered elsewhere in Subpart E regula- tions.

Subtotal ...... 118 responses ...... 560

Record Records

506 ...... Record dates and times of well-completion operations 1⁄2 647 completions × 4 meet- 1,294 safety meetings. ings = 2,588. 511 ...... Record results of weekly traveling-block safety device in 1 647 completions × 2 record- 1,294 operations log. ings = 1,294. 516(c)(1) ...... Record all your BOP test pressures ...... 3⁄4 647 completions × 4 record- 1,941 ings = 2,588. 516(e) ...... Record reason for postponing BOP test in driller’s report 1⁄2 54 recordings...... 27 516(i) ...... Record time, date, and results of all pressure tests, crew 5 647 completions × 4 record- 12,940 drills, actuations, and inspections in driller’s report. ings = 2,588. 516(i)(1) ...... Record BOP test pressure on pressure charts ...... 2 647 completions × 4 record- 5,176 ings = 2,588.

Subtotal ...... 11,700 responses ...... 22,672

Submittals

513; 515(a); 525 ...... Submit Forms MMS–123, MMS–123S, MMS–124, and Burden included under 1010–0141. 0 MMS–125 and all accompanying information to con- duct well-completion operations.

517(b) ...... Submit results of casing pressure testing, callipering, and 4 82 results...... 328 other evaluations. 525(a); 526 ...... Submit notification of corrective action ...... 11⁄2 66 actions...... 99 525(a); 529(a) ...... Submit a corrective action plan ...... 11 130 plans ...... 1,430 525(b); 527 ...... Submit a casing pressure request ...... 9 1,235 requests ...... 11,115 529(b) ...... Submit the casing pressure diagnostic test data ...... 1 65 submittals ...... 65

Subtotal ...... 1,578 responses ...... 13,037

Post/Retain

514(c) ...... Post the number of stands of drill pipe/collars that may 1⁄2 639 postings...... *320 be pulled and equivalent well-control fluid volume. 516(i)(6) ...... Retain all records including pressure charts, driller’s re- 11⁄2 647 records...... *971 port, referenced documents pertaining to BOP tests, actuations, and inspections at the facility for duration of the activity. 516(i)(7) ...... After completion of well, retain all records for 2 years at 2 647 records...... 1,294 location conveniently available to BOEMRE. 523 ...... Retain records of casing pressure and diagnostic tests 1 3,025 records...... 3,025 for 2 years or until the well is abandoned.

Subtotal ...... 4,958 responses ...... 5,610

Total Hour Burden ...... 18,354 responses ...... 41,879 * Rounded.

Estimated Reporting and Public Disclosure Statement: The PRA number. Until OMB approves a Recordkeeping Non-Hour Cost Burden: (44 U.S.C. 3501, et seq.) provides that an collection of information, you are not We have identified no paperwork non- agency may not conduct or sponsor a obligated to respond. hour cost burdens associated with the collection of information unless it Comments: Section 3506(c)(2)(A) of collection of information. displays a currently valid OMB control the PRA (44 U.S.C. 3501, et seq.)

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requires each agency ‘‘* * * to provide Dated: October 21, 2010. DATES: Comments: To ensure notice * * * and otherwise consult Sharon Buffington, consideration, please submit your with members of the public and affected Acting Chief, Office of Offshore Regulatory comments by December 9, 2010. agencies concerning each proposed Programs. Public Meeting Dates and Locations: collection of information * * *’’ [FR Doc. 2010–28277 Filed 11–8–10; 8:45 am] One Monday, November 10, 2010, 6– Agencies must specifically solicit BILLING CODE 4310–MR–P 8 p.m at the Chiefess Kamakahelei comments to: (a) Evaluate whether the Middle School Cafeteria, 4431 Nuhou proposed collection of information is Street, Lihue, HI 96766. necessary for the agency to perform its DEPARTMENT OF THE INTERIOR ADDRESSES: Oral and written comments will be accepted during the meeting. duties, including whether the Fish and Wildlife Service information is useful; (b) evaluate the You may also submit comments by one accuracy of the agency’s estimate of the [FWS–R1–ES–2010–N210; 10120–1112– of the following methods: burden of the proposed collection of 0000–F2] U.S. mail or hand-delivery to: Bill Standley, U.S. Fish and Wildlife information; (c) enhance the quality, Preparation of an Environmental usefulness, and clarity of the Service, Pacific Islands Fish and Impact Statement for Issuance of an Wildlife Office, 300 Ala Moana Blvd., information to be collected; and (d) Incidental Take Permit for the Room 3–122, Honolulu, HI 96850. minimize the burden on the Proposed Kauai Seabird Habitat Facsimile: (808) 792–9580 (Attention: respondents, including the use of Conservation Plan on Kauai, HI Bill Standley). automated collection techniques or Electronic mail (e-mail): other forms of information technology. AGENCY: Fish and Wildlife Service, _ Interior. bill [email protected]. To comply with the public Comments received will be available ACTION: Notice of intent and notice of consultation process, on April 12, 2010, for public inspection by appointment meeting. we published a Federal Register notice during normal business hours (Monday (75 FR 18545) announcing that we SUMMARY: We, the U.S. Fish and through Friday, 8 a.m. to 4:30 p.m.) at would submit this ICR to OMB for Wildlife Service (Service), advise the the above address. approval. The notice provided the public that we intend to prepare a joint FOR FURTHER INFORMATION CONTACT: Bill required 60-day comment period. In Federal/State Environmental Impact Standley, Fish and Wildlife Biologist, addition, § 250.199 provides the OMB Statement (EIS) under the National U.S. Fish and Wildlife Service (see control number for the information Environmental Policy Act (NEPA), in ADDRESSES above), telephone (808) 792– collection requirements imposed by the coordination with the Hawaii 9400. 30 CFR 250 regulations. The regulation Department of Land and Natural SUPPLEMENTARY INFORMATION: Resources (DLNR), for the proposed also informs the public that they may Reasonable Accommodation comment at any time on the collections Kauai Seabird Habitat Conservation of information and provides the address Plan (KSHCP) and the expected Persons needing reasonable to which they should send comments. applications from public and private accommodation in order to attend and We have received no comments in entities on Kaua’i for incidental take participate in the public meeting should permits (ITPs, or permits). The proposed response to these efforts. contact Bill Standley, Fish and Wildlife KSHCP is being prepared under the Biologist, as soon as possible (see If you wish to comment in response Endangered Species Act of 1973, as ADDRESSES), or at (808) 792–9400. In to this notice, you may send your amended (ESA). The ITPs would order to allow sufficient time to process comments to the offices listed under the authorize incidental take of the requests, please call no later than one ADDRESSES section of this notice. The Federally endangered Hawaiian petrel (1) week before the public meeting. OMB has up to 60 days to approve or (Pterodroma sandwichensis), the Information regarding this proposed disapprove the information collection Federally threatened Newell’s action is available in alternative formats but may respond after 30 days. (Townsends) shearwater (Puffinus upon request. Therefore, to ensure maximum auricularis newelli), and the band- Background consideration, OMB should receive rumped storm-petrel (Oceanodroma public comments by December 9, 2010. castro), a Federal candidate species that Section 9 of the ESA (16 U.S.C. 1538) could become listed during the term of and Federal regulations prohibit the Public Availability of Comments: the permit (collectively, these three take of fish and wildlife species listed Before including your address, phone species are hereafter referred to as the as endangered or threatened. The term number, e-mail address, or other ‘‘Covered Species’’). The DLNR is ‘‘take’’ means to harass, harm, pursue, personal identifying information in your preparing the KSHCP under which hunt, shoot, wound, kill, trap, capture, comment, you should be aware that numerous applicants are anticipated to or collect, or to attempt to engage in any your entire comment—including your apply for incidental take of the Covered such conduct. However, under section personal identifying information—may Species due to adverse effects of light 10(a) of the ESA (16 U.S.C. 1539 (a)), we be made publicly available at any time. attraction and these birds colliding with may issue permits to authorize While you can ask us in your comment utility lines and associated structures. incidental take of listed fish and to withhold your personal identifying We provide this notice to announce wildlife species. Incidental take is information from public review, we the initiation of a public scoping period defined as take that is incidental to, and cannot guarantee that we will be able to during which we invite other agencies not the purpose of, carrying out an do so. and the public to attend a public otherwise lawful activity. Regulations BOEMRE Information Collection meeting and submit oral and written governing ITPs for threatened and Clearance Officer: Arlene Bajusz (703) comments that provide suggestions and endangered species are found at 50 CFR 787–1025. information on the scope of issues and 17.32 and 17.22. If the permits are alternatives to be addressed in the joint issued, each permittee approved under EIS. the KSHCP would receive assurances

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under the Service’s ‘‘No Surprises’’ Covered Species and other seabirds due monitoring measures, and for regulations at 50 CFR 17.32(b)(5) and 50 to light attraction occurs primarily from submitting HCP fees to fund CFR 17.22(b)(5). September through December. compensatory mitigation, HCP Section 10 of the ESA specifies the Disoriented seabirds are commonly administration, compliance monitoring, requirements for the issuance of ITPs to observed circling repeatedly around effects monitoring and mitigation non-Federal entities. Any proposed take exterior light sources until they fall efficacy monitoring. Adaptive must be incidental to otherwise lawful exhausted to the ground or collide with management and annual monitoring activities and cannot appreciably reduce structures. Species such as shearwaters would also be essential components of the likelihood of the survival and and petrels typically need open spaces the HCP. recovery of the species in the wild. with strong updrafts and vertical drop Entities seeking take authorization Among other requirements the impacts offs to take off from land. Without under the KSHCP would be required to of such take must also be minimized human intervention, downed seabirds fill out an application template that and mitigated to the maximum extent are assumed to die in most instances requires specific and detailed practicable. To obtain an ITP, an due to starvation, predation, or information about the covered facility in applicant must submit a plan describing mortality resulting from vehicular terms of its location, size, ownership, the impact that will likely result from traffic. The annual release rate for lights and utility lines, regulations the proposed taking, the measures for rescued seabirds through the SOS pertaining to the use of lights and utility minimizing and mitigating the take, the Program is over 90 percent. lines, avoidance and minimization funding available to implement such There is a need to address the long- plans and evaluation of alternatives. measures, alternatives to the taking, and standing and previously unmitigated, The ITP application would also contain the reason why such alternatives are not unauthorized incidental take of the a section used to calculate being implemented. Covered Species caused by light recommended incidental take coverage attraction. Since 2005, dozens of levels for all species. Incidental take Covered Species businesses and agencies on Kauai calculations would be based on the best The Newell’s shearwater (ua u), voluntarily began efforts to avoid and available data sets including SOS Hawaiian petrel (a o) and band-rumped minimize light attraction of seabirds and recovery data and nocturnal storm petrel (ake ake) breed on the train staff in the active search, rescue, ornithological radar data. island of Kauai and feed on the open and reporting of downed birds. KSHCP participants would be ocean. Over 80 percent of the world’s However, to the extent incidental take required to: (1) Avoid impacts to the population of Newell’s shearwater nests cannot be eliminated, Federal and State Covered Species to the maximum extent on Kauai and its population have incidental permits are needed. practicable by, for example, removing or declined severely since the early 1990s. turning off problematic lights and The affected seabirds spend a large part The Proposed Plan undergrounding high risk utility lines; of the year at sea. Adults return to In accordance with section 10(a)(2)(A) and (2) minimize impacts to the nesting grounds in the interior of the ESA, the DLNR is preparing the Covered Species to the maximum extent mountains of Kauai beginning in March island-wide, multi-party KSHCP. As practicable, for example, through a and April, and depart beginning in presently conceived the KSHCP variety of KSHCP-recommended September. The Hawaiian petrel and proposes a 30-year permit period to methods such as shielding, redirecting Newell’s shearwater are philopatric address incidental take of the Covered lights, installing motion sensors, (return to the nest area near where they Species. The purpose of the KSHCP is altering light/utility structures, and were hatched). Fledglings (i.e., young to address the incidental take of the training staff to respond to downed birds learning how to fly) of these Covered Species due to existing and seabirds appropriately. Selected species make their first journey from the planned outdoor lights and overhead avoidance and minimization measures nesting colony to the sea from late utilities. The KSHCP is designed as a must be described in thorough detail by September through early December, multi-party plan with each participant each applicant, including a schedule with a peak occurring in mid-October holding a State and Federal permit and and funding and the reasons for and again in mid-November. being legally responsible for meeting the selecting among avoidance and The adverse effects to seabirds from conditions of both permits. In minimization alternatives would need light attraction and collisions with accordance with the ESA the to be clearly defined and supported in utility lines have been documented on availability of the KSHCP for public each ITP application submitted to the Kauai for over three decades. Since review and comment will be noticed in Service under the KSHCP. Support for 1979, the Save our Shearwaters Program the Federal Register when a complete the SOS program would likely be part (SOS) has recovered over 32,000 application package is submitted to the of the KSHCP impact minimization downed seabirds that are voluntarily Service. policy because SOS recoveries support brought to the program by the The maximum terrestrial covered area the rescue, rehabilitation, and release of community. These ongoing impacts in for the KSHCP includes 549 square affected (downed) seabirds. All combination with other land-based miles and over 350,000 acres on Kauai. participants in the KSHCP would be threats such as predation and habitat The size of the covered area for legally bound to implement avoidance alteration (including that caused by participating entity will be a specified and minimization requirements tailored hurricanes) are thought to have subset of this total using Tax Map Key to their unique facility(ies) as detailed contributed to severe population (TMK) or other legally acceptable in their ITP and IA. declines in the Covered Species. Both definitions, and will be included for Habitat protection and management adults and fledglings can collide with with each voluntary ITP application. programs implemented to compensate tall buildings, towers, power lines, and Each participating entity would hold a for unavoidable take of the Covered other structures while flying at night State and Federal permit and sign an Species would be detailed in the between their nesting colonies and at- Implementing Agreement (IA) all of KSHCP. For example, the mitigation sea foraging areas. Nocturnally active which would define their legal program would include colony seabirds, particularly fledglings, are responsibilities for the implementation protection (including surveys, fencing, attracted to bright lights. The ‘‘fallout’’ of of avoidance, minimization, and and predator control), monitoring, and

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management actions necessary to action would be the proposed issuance mitigation measures to reduce those compensate for the impacts of of ITPs based on the KSHCP. The impacts, where feasible, to a level below incidental take of the Covered Species Service and the DLNR are proposing to significance. and to provide a net environmental prepare a joint Federal/State EIS to Review of the EIS will be conducted benefit. The goals and objectives of the evaluate the effects of the proposed in accordance with the requirements of compensatory mitigation program KSHCP and proposed issuance of NEPA (42 U.S.C. 4321), the Council on would be based on specific recovery Federal and State ITPs on the human Environmental Quality regulations (40 goals for each listed species. The environment. The DLNR’s preparation CFR 1500–1508), the Administrative KSHCP compensatory program would of the draft KSHCP and related EIS is Procedure Act (5 U.S.C. 551 et seq.), likely include weed, ungulate, and based on conditions of an ESA Section other applicable regulations, and the predator removal designed to benefit the 6 HCP Planning and Coordination grant Service’s procedures for compliance Covered Species and other listed flora awarded to the DLNR in 2009. The joint with those regulations. This notice is and fauna. Part of the analysis in the Federal/State EIS will be prepared in being furnished in accordance with 40 KSHCP will be to evaluate the potential compliance with NEPA and Hawaii CFR 1501.7 to obtain suggestions and effects of covered activities to rare Revised Statutes (HRS) Chapter 343. information from other agencies and the plants, including but not limited to Although DLNR will have the lead for public on the scope of issues and Acaena exigua, Adenophorus periens, preparing the EIS the Service will be alternatives to be addressed in the EIS. Alsinidendron lychnoides, Cyanea responsible for the scope and content of The primary purpose of the scoping recta, Cyrtandra cyaneoides, Delissea the document for NEPA purposes, and process is to identify important issues rivularis, Exocarpus luteolus, Myrsine the DLNR will be responsible for the and alternatives related to the proposed linearifolia, Nothocestrum peltatum, scope and content of the document for action. Plantago princeps var. anomala, the purposes of satisfying requirements We request comments, suggestions, Plantago princeps var. longibracteata, of HRS Chapter 343. and data from all interested parties to The EIS will consider the proposed Platanthera holochila, Poa ensure that a reasonable range of sandvicensis, Poa siphonoglossa, Remya action, (the issuance of Section alternatives is presented and that all montgomeryi, Schiedea membranacea, 10(a)(1)(B) permits under the ESA), no potentially significant issues are Solanum sandwicense, and Xylosma action (i.e., no permit issuance), a identified in the EIS. We will fully crenatum. A ‘‘Plant Protection Plan’’ reasonable range of other alternatives, consider all comments received during should be included in the KSHCP to and the associated impacts of each the comment period. Comments and ensure protection of all listed plants alternative. A detailed description of the materials we receive will become part of during seabird mitigation actions. The proposed action and other alternatives the public record and will be available KSHCP compensatory mitigation (including no action) will be included for public inspection, by appointment, program is also expected to support in the EIS. The range of alternatives during regular business hours. Before long-term conservation partnerships developed may vary by the level of with land owners and existing efforts by impacts caused by the proposed including your address, phone number, non-profit organizations that provide activities, their specific locations, and e-mail address, or other personal long-term benefits to listed seabirds, the conservation measures involved. identifying information in your plants, watersheds, and other non-listed Potential alternatives may include comment, you should be aware that plants and animals of Kauai. various methods of minimizing take your entire comment—including your Fees for each applicant/participant through modifications of existing power personal identifying information—may would be proportionate to the level of lines, structures, and lights; placing be made publicly available at any time. incidental take authorized as well as the power line segments underground; While you can ask us in your comment type of impact: lights or utility lines. implementing design standards for new to withhold your personal identifying Fees submitted under the KSHCP would facilities; variations in the scope of information from public review, we be used to fund HCP administration, covered activities; variations in the cannot guarantee that we will be able to monitoring, compensatory mitigation, location, amount and type of do so. and the SOS Program. conservation including developing and Dated: October 15, 2010. As currently envisioned, implementing various approaches for Richard Hannan, administration and management related improving seabird survival and breeding Deputy Regional Director. to implementation of the KSHCP would success; variations in permit duration; [FR Doc. 2010–28272 Filed 11–8–10; 8:45 am] be the responsibility of the DLNR or or a combination of these elements. We their designee, with appropriate will consider other reasonable BILLING CODE 4310–55–P oversight by the Service. An annual alternatives recommended during this review of actions implemented under scoping process in order to develop a DEPARTMENT OF THE INTERIOR the KSHCP would be conducted by the full range of alternatives. Endangered Species Recovery The EIS will analyze direct, indirect, Fish and Wildlife Service Committee (ESRC). Based on that review and cumulative impacts on the ecosystem and other aspects of the the ESRC may forward [FWS–R1–ES–2010–N219; 10120–1112– recommendations for modifying human environment including, but not 0000–F2] KSHCP-related actions to the Board of limited to, biological resources, land Land and Natural Resources. use, air quality, water quality, mineral Endangered and Threatened Wildlife resources, water resources, recreation, Environmental Impact Statement and Plants; Permit; Construction and cultural and archeological resources, Operation of Kaheawa II Wind Energy NEPA (42 U.S.C. 4321 et seq.) requires visual resources, socioeconomics, and Generation Facility, Maui, HI; Draft that Federal agencies conduct an other issues that could occur with Habitat Conservation Plan and Draft environmental analysis of their implementation of the proposed action Environmental Assessment proposed actions to determine if the and alternatives. For all potentially actions may significantly affect the significant impacts, the EIS will identify AGENCY: Fish and Wildlife Service, human environment. Under NEPA, our avoidance, minimization, and Interior.

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ACTION: Notice of availability; request HCP, IA, and EA, by contacting the otherwise lawful activity. Regulations for comments. Service’s Pacific Islands Fish and governing incidental take permits for Wildlife Office (see FOR FURTHER threatened and endangered species are SUMMARY: We, the U.S. Fish and INFORMATION CONTACT above). These found at 50 CFR 17.32 and 17.22. If Wildlife Service (Service), have received documents are also available issued, the permittee would receive an application from Kaheawa Wind electronically for review on the U.S. assurances under the Service’s ‘‘No Power II, LLC (KWP II) (Applicant) for Fish and Wildlife Service Pacific Islands Surprises’’ regulations at 50 CFR an incidental take permit (permit) under Fish and Wildlife Office Web site at 17.32(b)(5) and 50 CFR 17.22(b)(5). the Endangered Species Act of 1973, as http://www.fws.gov/pacificislands. KWP II is a fully owned subsidiary of amended (ESA). The Applicant is Comments and materials we receive, as the Boston-based wind energy company, requesting an incidental take permit well as supporting documentation we First Wind, and would supply wind- under the ESA to authorize take of three use in preparing the NEPA document, generated electricity to the Maui Electric Federally endangered and one will become part of the public record Company. KWP II has developed a draft threatened bird species. The permit and will be available for public HCP that addresses the incidental take application includes a draft Habitat inspection by appointment, during of the four Covered Species caused by Conservation Plan (HCP) and a draft regular business hours. Before including the construction and operation of the Implementing Agreement (IA). We also your address, phone number, e-mail KWP II wind energy facility over a announce the availability of a draft address, or other personal identifying period of 20 years. Environmental Assessment (EA) that information in your comment, you The proposed project is located has been prepared in response to the should be aware that your entire southeast of the existing 30-megawatt permit application in accordance with comment—including your personal (MW), 21-turbine Kaheawa Wind Power requirements of the National identifying information—may be made I (KWP I) project. Like KWP II, KWP I Environmental Policy Act (NEPA). We publicly available at any time. While is owned by First Wind and is operating are making the permit application you can ask us in your comment to under an existing HCP that addresses package and draft EA available for withhold your personal identifying incidental take of the same four covered public review and comment. information from public review, we species. At KWP I, the Hawaiian petrel, DATES: All comments from interested cannot guarantee that we will be able to Hawaiian goose, and Hawaiian hoary parties must be received on or before do so. bat are known to have collided with December 9, 2010. We specifically request comments wind turbine structures. The Hawaiian petrel and Newell’s ADDRESSES: Please address written from the public on whether the shearwater breed on Maui and feed in comments to Loyal Mehrhoff, Project application meets the statutory and the open ocean. Both covered seabird Leader, Pacific Islands Fish and Wildlife regulatory requirements for issuing a species spend a large part of the year at Office, U.S. Fish and Wildlife Service, permit, and identification of any aspects of the human environment that should sea. Adults generally return to their 300 Ala Moana Boulevard, Room #3– colonial nesting grounds in the interior 122, Honolulu, HI 96850. You may also be analyzed in the draft EA. We are also soliciting comments on the: adequacy of mountains of Maui beginning in March send comments by facsimile to (808) and April, and depart beginning in 792–9580. the HCP to minimize, mitigate, and monitor the proposed incidental take of September. Fledglings (i.e., young birds FOR FURTHER INFORMATION CONTACT: the Covered Species; adequacy of the learning how to fly) travel from the James Kwon, Fish and Wildlife funding being provided to implement nesting colony to the sea in the fall. Biologist, U.S. Fish and Wildlife Service the proposed mitigation program and Both adults and fledglings are known to (see ADDRESSES above), telephone (808) changed circumstances; adequacy of the collide with tall buildings, towers, 792–9400. adaptive management program; and powerlines, and other structures while SUPPLEMENTARY INFORMATION: The certainty that mitigation will occur. flying at night between their nesting Applicant is requesting an incidental Please evaluate against the permit colonies and at-sea foraging areas. The take permit under the ESA to authorize issuance criteria found in section 10(a) ne¯ne¯ is resident on site and is known to take of the Federally endangered of the ESA, 16 U.S.C.1539(a), and 50 nest in areas adjacent to the proposed Hawaiian petrel (Pterodroma CFR 13.21, 17.22, and 17.32. In wind energy facility. The Hawaii hoary sandwichensis), endangered Hawaiian compliance with section 10(c) of the bat has been observed on site by goose (ne¯ne¯) (Branta sandvicensis), ESA (16 U.S.C 1539(c)), we are making acoustic monitoring; however, no endangered Hawaiian hoary bat the permit application package available evidence of roosts has been detected. (Lasiurus cinereus semotus), and the for public review and comment for 30 Proposed Plan threatened Newell’s (Townsend’s) days (see DATES section above). shearwater (Puffinus auricularis newelli) The activities proposed to be covered (collectively these four species are Background by the permit include the construction hereafter referred to as the ‘‘Covered Section 9 of the ESA (16 U.S.C. 1538) and operation of a new 21-megawatt, 14- Species’’). The permit application and Federal regulations prohibit the turbine wind energy generation facility includes a draft Habitat Conservation take of fish and wildlife species listed at Kaheawa Pastures above Maalaea, in Plan (HCP) that describes the as endangered or threatened. The term the southwestern portion of the Island Applicant’s actions and the measures ‘‘take’’ means to harass, harm, pursue, of Maui, Hawai‘i. The proposed facility the Applicant will implement to hunt, shoot, wound, kill, trap, capture, will consist of 14 General Electric wind minimize, mitigate, and monitor or collect, or to attempt to engage in any turbine generators (WTGs), a incidental take of the Covered Species, such conduct (Id.). However, under maintenance building (and renovations and a draft Implementing Agreement section 10(a) of the ESA (16 to the existing Operations and (IA). U.S.C.1539(a)), we may issue permits to Maintenance building), an electrical authorize incidental take of listed fish substation, a battery energy storage Availability of Documents and wildlife species. Incidental take is system, an underground electrical You may request copies of the permit defined as take that is incidental to, and collection system carrying electrical application, which includes the draft not the purpose of, carrying out an power from individual WTGs to the

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electrical substation, an overhead would be expected to occur over 20 SUPPLEMENTARY INFORMATION: Under transmission line to connect the years; and section 11 of the Indian Gaming substation to the Maui Electric (7) Whether the HCP meets other ESA Regulatory Act of 1988 (IGRA) Public Company Ltd. transmission line, a sec. 10(a)(2)(B) (16 U.S.C. (a)(2)(B), Law 100–497, 25 U.S.C. 2710, the permanent unguyed meteorological issuance criteria; and Secretary of the Interior shall publish in monitoring tower, and short service (8) Any other information pertinent to the Federal Register notice of approved roads to connect the new WTGs and evaluating the effects of the proposed Tribal-State compacts for the purpose of other facilities to the existing main action on the human environment. engaging in Class III gaming activities access road servicing KWP I. The overall The draft EA considers the direct, on Indian lands. This Amendment project is located within a combined indirect, and cumulative effects of the allows for multi-player games on video footprint area of approximately 143 proposed action of permit issuance, lottery terminals (VLTs). including the measures that will be acres (58 hectares). The Applicant has Dated: November 1, 2010. also applied for a State of Hawai‘i implemented to minimize and mitigate incidental take license under Hawai‘i such impacts. The EA contains an Larry Echo Hawk, State law. The draft HCP describes the analysis of three alternatives: (1) Assistant Secretary—Indian Affairs. impacts of take associated with those Issuance of an incidental take permit to [FR Doc. 2010–28267 Filed 11–8–10; 8:45 am] activities on the Covered Species, and KWP II on the basis of the proposed BILLING CODE 4310–4N–P proposes a program to minimize and HCP with the downroad siting location; mitigate take on each of the Covered (2) the issuance of a permit based on the Species. downwind/downstring siting location; DEPARTMENT OF THE INTERIOR KWP II is proposing mitigation and (3) No Action (no permit issuance National Park Service measures that include: (1) Active and no measures by the Applicant to management such as predator removal reduce or eliminate the take of Covered [Account No. 3086–SYM] and construction of cat- and mongoose- Species). proof fences at Hawaiian petrel and This notice is provided under section National Capital Memorial Advisory Newell’s shearwater colonies; (2) 10(c) (16 U.S.C. 1539(c)) of the ESA and Commission captive propagation and release of ne¯ne¯ NEPA regulations (40 CFR 1506.6). The AGENCY: National Park Service, Interior. goslings; (3) habitat management and public process for the proposed Federal predator control to increase ne¯ne¯ action will be completed after the public ACTION: Notice of public meeting. breeding success and survival; (4) comment period, at which time we will evaluate the permit application, the SUMMARY: Notice is hereby given that surveys to document the distribution the National Capital Memorial Advisory and abundance of the Hawaiian hoary HCP and associated documents (including the EA), and comments Commission (the Commission) plans to bat; and (5) habitat management and meet and discuss currently authorized reforestation to benefit the recovery of submitted thereon to determine whether or not the proposed action meets the and proposed memorials in the District the Hawaiian hoary bat. This HCP of Columbia and its environs. incorporates adaptive management requirements of section 10(a) (16 U.S.C. provisions to allow for modifications to 1539(a)) of the ESA and has been DATE: Wednesday, November 17, 2010. the mitigation and monitoring measures adequately evaluated under NEPA. ADDRESSES: National Building Museum, as knowledge is gained during Dated: October 20, 2010. Room 312, 401 F Street, NW., implementation. Richard Hannan, Washington, DC 20001. We invite comments and suggestions Deputy Regional Director. FOR FURTHER INFORMATION CONTACT: Ms. from all interested parties and request [FR Doc. 2010–28197 Filed 11–8–10; 8:45 am] Nancy Young, Secretary to the that comments be as specific as BILLING CODE 4310–55–P Commission, by telephone at (202) 619– possible. In particular, we request 7097, by e-mail at information and comments regarding [email protected], by telefax at the following issues: DEPARTMENT OF THE INTERIOR (202) 619–7420, or by mail at the (1) The direct, indirect, and National Capital Memorial Advisory cumulative effects that implementation Bureau of Indian Affairs Commission, 1100 Ohio Drive, SW., of any reasonable alternatives could Room 220, Washington, DC 20242. Indian Gaming have on endangered and threatened SUPPLEMENTARY INFORMATION: In species; AGENCY: Bureau of Indian Affairs, addition to discussing general matters (2) Other reasonable alternatives Interior. and conducting routine business, the consistent with the purpose of the Commission will consider one action proposed HCP as described above, and ACTION: Notice of Approved Tribal-State item: H.R. 3886, a bill to establish a their associated effects; Class III Gaming Amendment. memorial to Benjamin Banneker in the (3) Measures that would minimize SUMMARY: This notice publishes and mitigate potentially adverse effects District of Columbia. There will also be approval of the Amendments to the two non-action items before the of the proposed action; Class III Gaming Compact (Amendment) (4) Adaptive management or Commission: between the State of Oregon and the (1) Design consultation—Dwight D. monitoring provisions that may be Siletz Indians of Oregon. incorporated into the alternatives, and Eisenhower Memorial, and DATES: Effective Date: November 9, their benefits to listed species; (2) Status report—John Adams (5) Other plans or projects that might 2010. Memorial. be relevant to this action; FOR FURTHER INFORMATION CONTACT: The meeting will be open to the public. (6) The proposed term of the Paula L. Hart, Director, Office of Indian Persons who wish to file a written Incidental Take Permit and whether the Gaming, Office of the Deputy Assistant statement or testify at the meeting or proposed conservation program would Secretary—Policy and Economic who want further information minimize and mitigate to the maximum Development, Washington, DC 20240; concerning the meeting may contact Ms. extent practible the incidental take that telephone (202) 219–4066. Nancy Young, Secretary to the

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Commission. Before including your ACTION: Notice. leases for the construction of a wind address, phone number, e-mail address, energy project(s) on the Outer or other personal identifying SUMMARY: Under the provisions of the Continental Shelf (OCS) offshore information in your comment, you Mineral Leasing Act of 1920, the Bureau Maryland. The BOEMRE will use should be aware that your entire of Land Management (BLM) received a responses to this RFI to enable BOEMRE comment—including your personal petition for reinstatement from Finley to gauge specific interest in commercial identifying information—may be made Company, et al., for competitive oil and development of OCS wind resources in publicly available at any time. While gas lease NVN–74793 for land in Nye the area described, as required by 43 you can ask us in your comment to County, Nevada. The petition was U.S.C. 1337(p)(3). Parties wishing to withhold your personal identifying timely filed and was accompanied by all obtain a commercial lease for a wind information from public review, we the rentals due since the lease energy project should submit detailed cannot guarantee that we will be able to terminated under the law. and specific information as described do so. FOR FURTHER INFORMATION CONTACT: below in the section entitled, ‘‘Required The Commission was established by Atanda Clark, BLM Nevada State Office, Indication of Interest Information.’’ Also, Public Law 99–652, the Commemorative 775–861–6632, or e-mail: with this announcement the BOEMRE _ Works Act (40 U.S.C. Chapter 89 et Atanda [email protected]. invites all interested and affected parties seq.), to advise the Secretary of the SUPPLEMENTARY INFORMATION: The to comment and provide information— Interior (the Secretary) and the lessees have agreed to the amended including information on environmental Administrator, General Services lease terms for rental and royalties at issues and concerns—that will be useful Administration, (the Administrator) on rates of $10 per acre or fraction thereof in the consideration of the RFI area for policy and procedures for establishment and 162⁄3 percent, respectively. The commercial wind energy leases. of, and proposals to establish, lessees have paid the required $500 This RFI is published pursuant to commemorative works in the District of administrative fee for the lease and have subsection 8(p) of the OCS Lands Act, Columbia and its environs, as well as reimbursed the Department for the cost as amended by section 388 of the Energy such other matters as it may deem of this Federal Register notice. The Policy Act of 2005 (EPAct) (43 U.S.C. appropriate concerning commemorative lessees have met all the requirements for 1337(p)(3)) and the implementing works. reinstatement of the lease as set out in regulations at 30 CFR part 285. The Commission examines each Sections 31(d) and (e) of the Mineral The Western edge of the RFI area is memorial proposal for conformance to Leasing Act of 1920 (30 U.S.C. 188). The located approximately 10 nautical miles the Commemorative Works Act, and BLM is proposing to reinstate the lease, from the Ocean City, Maryland coast makes recommendations to the effective August 1, 2009, under the and the Eastern edge is approximately Secretary and the Administrator and to original terms and conditions of the 27 nautical miles from the Ocean City, Members and Committees of Congress. lease and the increased rental and Maryland coast. This area was The Commission also serves as a source royalty rates cited above. delineated in consultation with the of information for persons seeking to The BLM has not issued a valid lease BOEMRE Maryland Renewable Energy establish memorials in Washington, DC affecting the lands to any other interest Task Force. A detailed description of and its environs. in the interim. the RFI area is found later in this notice. The members of the Commission are Authority: 43 CFR 3108.2–3(a). as follows: DATES: The BOEMRE must receive your Director, National Park Service; Gary Johnson, submission indicating your interest in Administrator, General Services Deputy State Director, Minerals Management. this potential commercial leasing area Administration; [FR Doc. 2010–28198 Filed 11–8–10; 8:45 am] no later than January 10, 2011 for your submission to be considered. The Chairman, National Capital Planning BILLING CODE 4310–HC–P Commission; BOEMRE requests comments or other Chairman, Commission of Fine Arts; submissions of information by this same Mayor of the District of Columbia; DEPARTMENT OF THE INTERIOR date. We will consider only the Architect of the Capitol; submissions we receive by that time. Bureau of Ocean Energy Management, Chairman, American Battle Monuments Submission Procedures: You may Regulation and Enforcement Commission; submit your indications of interest, Secretary of Defense. [Docket No. BOEM–2010–0038] comments, and information by one of two methods: Dated: October 8, 2010. Commercial Leasing for Wind Power 1. Electronically: http:// Lisa A. Mendelson-Ielmini, on the Outer Continental Shelf (OCS) www.regulations.gov. In the entry titled Regional Director, National Capital Region. Offshore Maryland—Request for ‘‘Enter Keyword or ID,’’ enter BOEM– [FR Doc. 2010–28292 Filed 11–8–10; 8:45 am] Interest (RFI) 2010–0038, then click search. Follow BILLING CODE 4312–JK–P AGENCY: Bureau of Ocean Energy the instructions to submit public Management, Regulation and comments and view supporting and Enforcement, Interior. related materials available for this DEPARTMENT OF THE INTERIOR rulemaking. The BOEMRE will post all ACTION: RFI in Commercial Wind Energy comments. Bureau of Land Management Leasing Offshore Maryland, and 2. By mail, sending your indications [LLNV9230000 L13100000.FI0000; NVN– Invitation for Comments from Interested and Affected Parties. of interest, comments, and information 74793; 11–08807; TAS: 14x1109] to the following address: Bureau of Notice of Proposed Reinstatement of SUMMARY: The Bureau of Ocean Energy Ocean Energy Management, Regulation Terminated Oil and Gas Lease; Nevada Management, Regulation and and Enforcement, Office of Offshore Enforcement (BOEMRE) invites Alternative Energy Programs, 381 Elden AGENCY: Bureau of Land Management, submissions describing interest in Street, Mail Stop 4090, Herndon, Interior. obtaining one or more commercial Virginia 20170.

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FOR FURTHER INFORMATION CONTACT: transmission of energy from sources seabed or nearshore; on possible Aditi Mirani, Renewable Energy other than oil or gas. The EPAct also multiple uses of the proposed leasing Program Specialist, Bureau of Ocean required the issuance of regulations to area (including navigation, recreation, Energy Management, Regulation and carry out the new authority pertaining and fisheries); and on other Enforcement, Office of Offshore to renewable energy on the OCS. The socioeconomic, biological, and Alternative Energy Programs, 381 Elden Secretary delegated this authority to environmental matters. Street, Mail Stop 4090, Herndon, issue leases, easements, and ROWs, and In response to the Call, the BOEMRE Virginia 20170–4817; telephone (703) to promulgate regulations, to the would require potential lessees to 787–1752. Director of BOEMRE. The BOEMRE submit the following information: the SUPPLEMENTARY INFORMATION: published the REAU rule on April 29, area of interest for a possible lease; a 2009 (74 FR 81 April, 29, 2009). general description of the potential Purpose of the Request for Interest lessee’s objectives and the facilities that Determination of Competitive Interest The OCS Lands Act requires BOEMRE the potential lessee would use to to award leases competitively, unless The first step in determining whether achieve those objectives; a general BOEMRE makes a determination that there is competitive interest in an area schedule of proposed activities, there is no competitive interest (43 for offshore wind energy projects will be including those leading to commercial U.S.C. 1337(p) (3)). This RFI is a the evaluation of submissions operations; data and information preliminary step in the leasing process describing nominations of particular concerning renewable energy and and the responses to it will assist areas of interest as suitable for environmental conditions in the area of BOEMRE in determining if there is renewable energy projects in response to interest, including the energy and competitive interest in the area this RFI. At the conclusion of the resource data and information that was described herein on the OCS offshore comment period for this RFI, the used to evaluate the area of interest; and Maryland. If, following this RFI, BOEMRE will review the information documentation showing that the BOEMRE determines that there is no received, undertake a completeness submitting entity is qualified to hold a competitive interest in this area offshore review and qualifications review of the lease. However, an applicant would not Maryland, BOEMRE may proceed with nominations received and make a be required to resubmit information the noncompetitive leasing process determination of competitive interest. already submitted in response to this pursuant to 30 CFR 285.232 of the The BOEMRE will first determine RFI. Renewable Energy and Alternate Uses of whether there is any geographic overlap (2) Area Identification. The BOEMRE Existing Facilities on the Outer of any nominated areas of interest. If would identify areas for environmental Continental Shelf (REAU) rule. If, two areas of interest fully or partially analysis and consideration for leasing in following this RFI, BOEMRE determines overlap, the competitive process will discussion with appropriate Federal that there is competitive interest in the begin as outlined in 30 CFR 285.211 agencies, States, local governments, RFI area, BOEMRE may proceed with through 285.225. Indian Tribes, and other interested Situations may arise in which several the competitive leasing process set forth parties based on the information parties nominate project areas that do under 30 CFR 285.211 through 285.225. submitted in response to this RFI and not overlap. Under these circumstances, Whether the leasing process is the Call. BOEMRE could choose to employ an (3) Proposed Sale Notice. The competitive or noncompetitive, it will allocation system of leases that involves BOEMRE would then publish a include opportunities for the public to competition across tracts. This system is Proposed Sale Notice (PSN) in the provide input as well as a thorough referred to as intertract competition and Federal Register and send the PSN to environmental review, and will be will also be implemented under the the Governor of any affected State and conducted in conformance with all competitive process outlined in 30 CFR the executive of any local government applicable laws and regulations. that might be affected. The PSN would Parties other than those interested in 285.211 through 285.225. The BOEMRE describe the areas offered for leasing obtaining a commercial lease are may consult with the BOEMRE and the proposed terms and conditions welcome to submit comments in Maryland Renewable Energy Task Force in determining intertract competition. of a lease sale, including the proposed response to this RFI. Further, BOEMRE auction format, lease form, and lease has formed the BOEMRE Maryland Competitive Process provisions. Additionally, the PSN Renewable Energy Task Force for If BOEMRE determines that would describe the criteria and process coordination among affected Federal competitive interest exists for this area, for evaluating bids. The PSN would be agencies and State, local, and Tribal it would proceed with the following issued after completion of the final governments throughout the leasing defined process, as described in 30 CFR National Environmental Policy Act process. Task Force meeting materials 285.211 through 285.225, consulting (NEPA) documentation, preparation of are available on the BOEMRE Web site with the BOEMRE Maryland Renewable the Consistency Determination as at: http://www.BOEMRE.gov/offshore/ Energy Task Force as appropriate: required by the Coastal Zone RenewableEnergy/ (1) Call for Information and Management Act (CZMA) and its stateactivities.htm#Maryland. Nominations (Call). The BOEMRE implementing regulations, and Background would publish in the Federal Register a preparation of various analyses of notice of a Call for Information and proposed lease sale economic terms and Energy Policy Act of 2005 Nominations for leasing in specified conditions. The comment period The EPAct amended the OCS Lands areas. The comment period following following issuance of a PSN would be Act by adding subsection 8(p), which the notice of a Call would be 45 days. 60 days. authorizes the Secretary of the Interior In the notice, BOEMRE may request (4) Final Sale Notice. The BOEMRE to grant leases, easements, or rights-of- comments seeking information on areas would then publish the Final Sale way (ROWs) on the OCS for activities that should receive special Notice (FSN) in the Federal Register at that are not otherwise authorized by law consideration and analysis; on least 30 days before the date of the sale. and that produce or support the geological conditions (including bottom Should BOEMRE proceed with a production, transportation, or hazards); on archaeological sites on the competitive auction to award leases,

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BOEMRE would use one of the Plan (SAP), as described in CFR Upon completion of a draft EIS, following three auction formats to select 285.231(d)(2)(i). BOEMRE would file the draft EIS with the winner as described at 30 CFR Leases issued noncompetitively must the Environmental Protection Agency 285.220: sealed bidding; ascending comply with the requirements of NEPA, (EPA) and would publish a Notice of bidding; or two-stage bidding (a CZMA, the Endangered Species Act Availability in the Federal Register. The combination of ascending bidding and (ESA), and other applicable Federal draft EIS would be made available and sealed bidding). The BOEMRE would statutes. In accordance with 30 CFR distributed for public review and publish the criteria for winning bid 285.231(e), BOEMRE would coordinate comment during a minimum 45-day determinations in the FSN. and consult, as appropriate, with public comment period. (5) Bid Evaluation. Following affected Federal agencies, State and The BOEMRE would hold one or publication of the FSN in the Federal local governments, and affected Indian more public hearings in the vicinity of Register, qualified bidders may submit Tribes in issuing a noncompetitive lease the proposed lease area for the purpose their bids to BOEMRE in accordance and developing lease terms and of receiving comments on the draft EIS. with procedures specified for the conditions. The BOEMRE would announce the time auction format to be used. The bids, It is possible that responses to this RFI and location in the Federal Register at may result in determinations that there including the bid deposits, if applicable, least 30 days before the public hearings. would be checked for technical and is competitive interest for some areas legal adequacy. The BOEMRE would but not for others. The BOEMRE will The BOEMRE would analyze the evaluate the bids to determine if the announce publicly its determinations comments and information received bidder has complied with all applicable before proceeding with a competitive during the public review process, regulations. The BOEMRE reserves the process, a noncompetitive process, or including those from public hearings, right to reject any or all bids and the both. along with any newly acquired information and, where appropriate, right to withdraw an offer to lease an Environmental Review area from the sale. would incorporate this information into (6) Issuance of a Lease. Following the BOEMRE will conduct environmental the final EIS. Based on the NEPA selection of a winning bid by the reviews of its leasing and development analysis, results of the consultations, BOEMRE, the submitter would be decisions pursuant to NEPA, ESA and and comments received, the BOEMRE notified of the decision and provided a other environmental statutes, as would develop lease terms or set of official lease forms for execution. appropriate. Should BOEMRE stipulations to protect sensitive areas The successful bidder would be determine that any activity it is and/or biological and cultural resources. required to execute the lease, pay the considering authorizing constitutes a After the public hearings, BOEMRE remainder of the bonus bid, if major Federal action significantly would develop a final EIS. The applicable, and file the required affecting the environment, BOEMRE BOEMRE would file the final EIS with financial assurance within 10 days of would prepare an environmental impact EPA and publish a Notice of receiving the lease copies. Upon receipt statement (EIS) to analyze the effects of Availability in the Federal Register. of the required payments, financial such an action. This would include a Description of the Area assurance, and properly executed lease public scoping period, including a 30- forms, BOEMRE would issue a lease to day comment period and one or more The RFI area was delineated through the successful bidder. public meetings conducted to solicit consultation with the BOEMRE input on the alternatives and issues to Maryland Renewable Energy Task Noncompetitive Process be addressed in a draft EIS. The draft Force. The following full OCS lease If BOEMRE determines that there is EIS would describe the nature of the blocks are included within the RFI area: no competitive interest in a proposed action under consideration, and any Salisbury NJ18–05 Blocks 6624, 6625, lease, it may proceed with the potential direct, indirect, and 6626, 6627, 6628, 6629, 6674, 6675, noncompetitive lease issuance process, cumulative impacts that the action will 6676, 6677, 6678, 6679, 6724, 6725, pursuant to 30 CFR 285.232, consulting have on biological or physical resources, 6726, 6727, 6728, 6729, 6774, 6775, with the BOEMRE Maryland Renewable as well as on socioeconomic conditions. 6776, 6777, 6778, 6779, 6825, 6826, Energy Task Force as appropriate. During this process, BOEMRE would 6827, 6828, 6829. In addition, parts of Within 60 days of the date of a review pertinent published and the following blocks are included determination of no competitive unpublished studies from academic and within the area of interest: Salisbury interest, the respondent would be other institutions and organizations and NJ18–05 Blocks 6623, 6673, 6723 and required to submit a Site Assessment from other Federal and State agencies. 6773 as described in the table below.

Protraction name Protraction number Block number Sub block

Salisbury ...... NJ18–05 ...... 6623 C,D,G,H,K,L,O,P Salisbury ...... NJ18–05 ...... 6673 C,D,G,H,K,L,O,P Salisbury ...... NJ18–05 ...... 6723 C,D,G,H,K,L,O,P Salisbury ...... NJ18–05 ...... 6773 C,D,G,H

The Western edge of the RFI is length and the longest portion of the square nautical miles; 175,069.22 acres; approximately 10 nautical miles from East/West portion is approximately 17 or 70848 hectares. the Ocean City, Maryland coast, and the nautical miles in length. The area is The boundary of the RFI follows the Eastern edge is approximately 27 made up of straight lines that are points listed in the table below in nautical miles from the Ocean City, comprised of 29 whole OCS blocks, 3 clockwise order. Point numbers 1 and 9 Maryland coast. The longest portion of half blocks and 1 quarter block. The are the same. Coordinates are provided the North/South portion is entire area is approximately 206.55 in X, Y (eastings, northings) UTM Zone approximately 13 nautical miles in

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18N, NAD 83 and geographic (longitude, latitude), NAD83.

X Y Point No. (easting) (northing) Longitude Latitude

1 ...... 512000 4257600 ¥74.8624454 38.4666335 2 ...... 543200 4257600 ¥74.5048114 38.4656677 3 ...... 543200 4233600 ¥74.5062825 38.2493794 4 ...... 519200 4233600 ¥74.7805670 38.2502128 5 ...... 519200 4238400 ¥74.7804368 38.2934724 6 ...... 514400 4238400 ¥74.8353273 38.2935622 7 ...... 514400 4240800 ¥74.8352784 38.3151920 8 ...... 512000 4240800 ¥74.8627320 38.3152273 9 ...... 512000 4257600 ¥74.8624454 38.4666335

Specific mitigation, stipulations, or and the U.S. Coast Guard will develop Offshore Alternative Energy Programs, exclusion areas may be developed as a reasonable and appropriate mitigations 381 Elden Street, Mail Stop 4090, result of site specific environmental such as conditions on turbine Herndon, Virginia 20170, Phone: (703) reviews and associated consultations, as placement, preservation of adequate 787–1300, Fax: (703) 787–1708. well as continued coordination through navigation buffers and setbacks, Required Indication of Interest the BOEMRE Maryland Renewable protection of vessel traffic lanes or other Information Energy Task Force. At this point, for the operational restrictions utilizing their area under consideration, multiple use existing authorities, policies, and If you intend to submit an indication conflicts may result in requiring procedures. of interest in a commercial lease from mitigation or excluding certain OCS If such mitigation cannot be achieved, BOEMRE for the development of wind blocks or portions of OCS blocks. portions of certain nominated areas may resources in the area(s) identified in this Multiple use issues associated with need to be excluded. The following RFI, you must provide the following: Department of Defense activities and blocks are highlighted for consideration (1) The BOEMRE Protraction name, U.S. Coast Guard responsibilities were of U.S. Coast Guard concerns: 6625, number, and specific whole or partial raised at the BOEMRE Maryland 6626, 6627, 6628, 6629, 6675, 6676, OCS blocks or areas within the RFI area Renewable Energy Task Force meetings. 6677, 6678, 6679, 6726, 6727, 6728, that are of interest for commercial These are described below. 6729, 6776, 6777, 6778, 6779, 6826, development, including any required 6827, 6828, and 6829. buffer area. If your proposed project area Traffic Separation Scheme (TSS) and includes one or more partial blocks Navigational Issues Department of Defense Activities and please describe those partial blocks in The BOEMRE is aware that the RFI Stipulations terms of a sixteenth of an OCS block. area lies adjacent or in close proximity The Department of Defense conducts Note that any indications of interest to a Traffic Separation Scheme (TSS) offshore testing, training, and operations identifying areas greater than what and thus the areas nominated in in the RFI area. The BOEMRE will would be reasonably necessary to response to this RFI may need to be consult with the Department of Defense develop a proposed commercial wind modified. The U.S. Coast Guard will regarding potential issues concerning facility will not be considered as valid require buffers from the edges of a TSS offshore testing, training, and indications of interest. In addition, and from the entrance and exit to a TSS. operational activities, and will use best BOEMRE will not consider any areas Because proposed project characteristics management practices to develop outside of the RFI area in this process; will be unique to each individual appropriate stipulations to mitigate the (2) A description of your objectives project, the buffers will be further effects of wind turbines in the RFI area. and the facilities that you would use to defined as more information is The Department of Defense will request achieve those objectives; collected, such as vessel traffic types, site specific stipulations in the (3) A schedule of proposed activities, density and routing direction. Further, it following 23 lease blocks: 6624, 6625, including those leading to commercial is important to note that two-way 6626, 6627, 6628, 6629, 6674, 6675, operations; routes, fairways and TSSs are various 6676, 6677, 6678, 6724, 6725, 6726, (4) Available and pertinent data and forms of routing measures and that 6727, 6728, 6774, 6775, 6776, 6777, information concerning renewable buffer dimensions will vary because of 6825, 6826, 6827, and the following four energy resources and environmental many factors, one of which is vessel partial lease blocks: 6623, 6673, 6723, conditions in the RFI area, including traffic density/composition and rules-of- and 6773. energy and resource data and the-road protocol. information used to evaluate the RFI The BOEMRE will take into Map of RFI area area; consideration and review data including A map of the RFI area can be found (5) Documentation demonstrating that but not limited to Automatic at the following URL: http:// you are legally, technically and Identification System (AIS) data that is www.BOEMRE.gov/offshore/ financially qualified to hold a lease as used on ships and vessel traffic services. RenewableEnergy/ set forth in 30 CFR 285.106 and 285.107. The BOEMRE will also consult with stateactivities.htm#Maryland. Your technical and financial relevant agencies such as the U.S. Coast A large-scale map of the RFI area documentation should demonstrate that Guard regarding potential issues showing boundaries of the RFI area with you are capable of constructing, concerning the TSS and other numbered blocks is available from operating, maintaining, and navigational and safety issues and will BOEMRE at the following address: decommissioning the facilities use best management practices. Bureau of Ocean Energy Management, described in (2) above. Documentation Depending on the findings, BOEMRE Regulation and Enforcement, Office of of financial qualification may include

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information establishing access to Dated: October 25, 2010. proposed collection of information, sufficient capital to carry out Michael R. Bromwich, including the validity of the development. Examples of Director, Bureau of Ocean Energy methodology and assumptions used; documentation of technical Management, Regulation and Enforcement. —Enhance the quality, utility, and qualification may include evidence of [FR Doc. 2010–28269 Filed 11–8–10; 8:45 am] clarity of the information to be international or domestic experience BILLING CODE 4310–MR–P collected; and with renewable energy projects or other —Minimize the burden of the collection types of electric-energy-related projects. of information on those who are to It is critical that you submit a DEPARTMENT OF JUSTICE respond, including through the use of complete indication of interest so that Bureau of Alcohol, Tobacco, Firearms, appropriate automated, electronic, BOEMRE may proceed with the and Explosives mechanical, or other technological commercial wind leasing process collection techniques or other forms offshore Maryland in a timely manner. [OMB Number is 1140–NEW] of information technology, e.g., If BOEMRE reviews your indication of permitting electronic submission of Agency Information Collection responses. interest and determines that it is Activities: Proposed Collection; incomplete, BOEMRE will inform you of Comments Requested Overview of This Information this determination in writing. This letter Collection will describe the information that ACTION: 30-Day Notice of Information BOEMRE determined to be missing from Collection Under Review: ATF Adjunct (1) Type of Information Collection: your indication of interest, and that you Instructor Data Form. New. must submit in order for BOEMRE to The Department of Justice (DOJ), (2) Title of the Form/Collection: ATF deem your submission complete. You Bureau of Alcohol, Tobacco, Firearms, Adjunct Instructor Data Form. will be given 15 business days from the and Explosives (ATF) will be submitting (3) Agency form number, if any, and date of the letter to submit the the following information collection the applicable component of the information that BOEMRE found to be request to the Office of Management and Department of Justice sponsoring the missing from your original submission. Budget (OMB) for review and approval collection: Form Number: ATF F 6140.3. If you do not meet this deadline, or if in accordance with the Paperwork Bureau of Alcohol, Tobacco, Firearms BOEMRE determines this second Reduction Act of 1995. The proposed and Explosives. submittal to be insufficient as well, then information collection is published to (4) Affected public who will be asked BOEMRE retains the right to deem your obtain comments from the public and or required to respond, as well as a brief indication of interest invalid. In that affected agencies. This proposed abstract: Primary: Individual or case, BOEMRE would not move forward information collection was previously households. Other: None. Abstract: The with your indication of interest published in the Federal Register form will be used to collect the submitted in response to this RFI. Volume 75, Number 171, page 54183– necessary information regarding the 54184 on September 3, 2010, allowing prospective instructor’s experience and Privileged or Confidential Information for a 60 day comment period. qualifications, and whether he or she The purpose of this notice is to allow meets the minimum requirements in The BOEMRE will protect privileged for an additional 30 days for public or confidential information that you order to teach ATF courses. The comment until December 9, 2010. This information is necessary in order for submit as required by the Freedom of process is conducted in accordance with Information Act (FOIA). Exemption 4 of ATF programs to verify and defend the 5 CFR 1320.10. qualifications of instructor personnel. FOIA applies to trade secrets and Written comments and/or suggestions commercial or financial information regarding the items contained in this (5) An estimate of the total number of that you submit that is privileged or notice, especially the estimated public respondents and the amount of time confidential. If you wish to protect the burden and associated response time, estimated for an average respondent to confidentiality of such information, should be directed to The Office of respond: There will be an estimated 20 clearly mark it and request that the Management and Budget, Office of respondents who will complete the form BOEMRE treat it as confidential. The Information and Regulatory Affairs, within approximately 30 minutes. BOEMRE will not disclose such Attention Department of Justice Desk (6) An estimate of the total burden (in information, subject to the requirements Officer, Washington, DC 20503. hours) associated with the collection: of FOIA. Please label privileged or Additionally, comments may be There are an estimated 10 total burden confidential information ‘‘Contains submitted to OMB via facsimile to (202)- hours associated with this collection. Confidential Information’’ and consider 395–5806. If Additional Information is Required submitting such information as a Written comments and suggestions Contact: Lynn Murray, Department separate attachment. from the public and affected agencies Clearance Officer, United States concerning the proposed collection of However, BOEMRE will not treat as Department of Justice, Policy and information are encouraged. Your Planning Staff, Justice Management confidential any aggregate summaries of comments should address one or more such information or comments not Division, Room 2E–502, Two of the following four points: Constitution Square, 145 N Street, NE., containing such information. —Evaluate whether the proposed Washington, DC 20530. Additionally, BOEMRE will not treat as collection of information is necessary confidential (1) the legal title of the for the proper performance of the Dated: November 3, 2010. nominating entity (for example, the functions of the agency, including Lynn Murray, name of your company), or (2) the list whether the information will have Department Clearance Officer, PRA, United of whole or partial blocks that you are practical utility; States Department of Justice. nominating. —Evaluate the accuracy of the agencies [FR Doc. 2010–28234 Filed 11–8–10; 8:45 am] estimate of the burden of the BILLING CODE 4410–FY–P

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NATIONAL AERONAUTICS AND can be found online at http:// Individuals who use a SPACE ADMINISTRATION technology.nasa.gov. telecommunications device for the deaf Dated: November 4, 2010. (TDD) may call the Federal Information [Notice (10–145)] Richard W. Sherman, Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern time, Deputy General Counsel. Notice of Intent To Grant Partially Monday through Friday. [FR Doc. 2010–28279 Filed 11–8–10; 8:45 am] Exclusive License SUPPLEMENTARY INFORMATION: BILLING CODE 7510–13–P Title of Collection: EHR Generic AGENCY: National Aeronautics and Clearance. Space Administration. OMB Approval Number: 3145–0136. NATIONAL SCIENCE FOUNDATION ACTION: Notice of Intent to Grant Expiration Date of Approval: March Exclusive License. Agency Information Collection 31, 2011. SUMMARY: This notice is issued in Activities: Comment Request; Generic Abstract: The National Science accordance with 35 U.S.C. 209(e) and 37 Survey Clearance for the Directorate of Foundation (NSF) requests renewal of CFR 404.7(a)(1)(i). NASA hereby gives Education and Human Resources program accountability and notice of its intent to grant a partially (EHR) communication data collections (e.g., exclusive license in the United States to surveys, face-to-face and telephone AGENCY: National Science Foundation. practice the invention described and interviews, observations, and focus claimed in U.S. Patent No. 6,918,970 ACTION: Notice. groups) that describe and track the High Strength Aluminum Alloy for High impact of NSF funding that focuses on SUMMARY: The National Science the Nation’s science, technology, Temperature Applications, NASA Case Foundation (NSF) is announcing plans No. MFS–31828–1, to Allied Metal engineering, and mathematics (STEM) to request renewed clearance of this education and STEM workforce. NSF Company having its principal place of collection. In accordance with the business in Chicago, IL. The fields of funds grants, contracts, and cooperative requirement of section 3506(c)(2)(A) of agreements to colleges, universities, and use may be limited to the manufacture the Paperwork Reduction Act of 1995, of aluminum alloy ingots. The patent other eligible institutions, and provides we are providing opportunity for public graduate research fellowships to rights in this invention have been comment on this action. After obtaining assigned to the United States of America individuals in all parts of the United and considering public comment, NSF States and internationally. as represented by the Administrator of will prepare the submission requesting the National Aeronautics and Space The Directorate for Education and Office of Management and Budget Human Resources (EHR), a unit within Administration. The prospective (OMB) clearance of this collection for no partially exclusive license will comply NSF, promotes rigor and vitality within longer than 3 years. the Nation’s STEM education enterprise with the terms and conditions of 35 Comments are invited on: (a) Whether U.S.C. 209 and 37 CFR 404.7. to further the development of the 21st the proposed collection of information century’s STEM workforce and public DATES: The prospective partially is necessary for the proper performance scientific literacy. EHR does this exclusive license may be granted unless, of the functions of the Agency, through diverse projects and programs within fifteen (15) days from the date of including whether the information shall that support research, extension, this published notice, NASA receives have practical utility; (b) the accuracy of outreach, and hands-on activities that written objections including evidence the Agency’s estimate of the burden of service STEM learning and research at and argument that establish that the the proposed collection of information; all institutional (e.g., pre-school through grant of the license would not be (c) ways to enhance the quality, utility, postdoctoral) levels in formal and consistent with the requirements of 35 and clarity of the information on informal settings; and individuals of all U.S.C. 209 and 37 CFR 404.7. respondents, including through the use ages (birth and beyond). EHR also Competing applications completed and of automated collection techniques or focuses on broadening participation in received by NASA within fifteen (15) other forms of information technology; STEM learning and careers among days of the date of this published notice and (d) ways to minimize the burden of United States citizens, permanent will also be treated as objections to the the collection of information on residents, and nationals, particularly grant of the contemplated exclusive respondents, including through the use those individuals traditionally license. of automated collection techniques or underemployed in the STEM research Objections submitted in response to other forms of information technology. workforce, including but not limited to this notice will not be made available to DATES: Written comments should be women, persons with disabilities, and the public for inspection and, to the received by January 10, 2011 to be racial and ethnic minorities. extent permitted by law, will not be assured of consideration. Comments At the request of OMB an EHR released under the Freedom of received after that date will be Generic Clearance was established in Information Act, 5 U.S.C. 552. considered to the extent practicable. 1995 to integrate management, ADDRESSES: Objections relating to the ADDRESSES: Written comments monitoring, and evaluation information prospective license may be submitted to regarding the information collection and pertaining to the NSF’s Education and Mr. James J. McGroary, Chief Patent requests for copies of the proposed Training (ET) portfolio in response to Counsel/LS01, Marshall Space Flight information collection request should be the Government Performance and Center, Huntsville, AL 35812, (256) addressed to Suzanne Plimpton, Reports Results Acts (GPRA) of 1993. Under this 544–0013. Clearance Officer, National Science generic survey clearance (OMB 3145– FOR FURTHER INFORMATION CONTACT: Foundation, 4201 Wilson Blvd., Rm. 0136), data from the NSF administrative Sammy A. Nabors, Technology Transfer 295, Arlington, VA 22030, or by e-mail databases are incorporated with findings Program Office/ED10, Marshall Space to [email protected]. gathered through initiative-, Flight Center, Huntsville, AL 35812, FOR FURTHER INFORMATION CONTACT: divisional-, and program-specific data (256) 544–5226. Information about other Suzanne Plimpton on (703) 292–7556 or collections. The scope of the EHR NASA inventions available for licensing send e-mail to [email protected]. Generic Clearance primarily covers

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descriptive information gathered from and treatment groups or comparison conduct activities regulated under the education and training projects that are groups. NSF-funded contract or grantee Antarctic Conservation Act of 1978. funded by NSF. Most programs subject researchers and evaluators in part may NSF has published regulations under to EHR Generic data collection are identify control, comparison, or the Antarctic Conservation Act at Title funded by the EHR Directorate, but treatment groups for NSF’s ET portfolio 45 Part 670 of the Code of Federal some are funded in whole or in part by using some of the descriptive data Regulations. This is the required notice disciplinary directorates or multi- gathered through OMB 3145–0136 to of permit applications received. disciplinary or cross-cutting programs. conduct well-designed, rigorous DATES: Interested parties are invited to Since 2001 in accordance with OMB’s research and portfolio evaluation submit written data, comments, or Terms of Clearance (TOC), NSF studies. views with respect to this permit primarily uses the data from the EHR In accordance with the 2001, 2005, application by December 9, 2010. This Generic Clearance for program planning, and 2008 OMB TOCs, NSF requests application may be inspected by management, and audit purposes to separate stand-alone clearance (and interested parties at the Permit Office, respond to queries from the Congress, separately announces for comment in address below. the public, NSF’s external merit the Federal Register) any program or reviewers who serve as advisors, portfolio research or evaluation. Two ADDRESSES: Comments should be including Committees of Visitors examples of third-party evaluations that addressed to Permit Office, Room 755, (COVs), and the NSF’s Office of the used EHR OMB 3145–0136 data to Office of Polar Programs, National Inspector General. inform study design are: OMB No. Science Foundation, 4201 Wilson OMB has limited the collection to 3145–0187 (Expiring 8/2011) Evaluation Boulevard, Arlington, Virginia 22230. three categories of descriptive data: (1) of the NSF’s Graduate STEM Fellows in FOR FURTHER INFORMATION CONTACT: Staff and project participants (data that K–12 Education (GK–12) Program and Nadene G. Kennedy at the above are also necessary to determine OMB No. 3145–0182 (Expiring 3/2011) address or (703) 292–7405. individual-level treatment and control Evaluation of the NSF’s Integrative groups for future third-party study); (2) Graduate Education and Research SUPPLEMENTARY INFORMATION: The project implementation characteristics Traineeship (IGERT) Program: Follow- National Science Foundation, as (also necessary for future use to identify up Study of IGERT Graduates, both directed by the Antarctic Conservation well-matched comparison groups); and conducted by Abt Associates. Act of 1978 (Pub. L. 95–541), as (3) project outputs (necessary to Respondents: Individuals or amended by the Antarctic Science, measure baseline for pre- and post- households, not-for-profit institutions, Tourism and Conservation Act of 1996, NSF-funding-level impacts). business or other for profit, and Federal, has developed regulations for the Use of the Information: This State, local or Tribal government. establishment of a permit system for information is required for effective Number of Respondents: 8,494. various activities in Antarctica and administration, communication, Burden of the Public: The total designation of certain animals and program and project monitoring and estimate for this collection is 65,868 certain geographic areas as requiring evaluation, and for measuring annual burden hours. This figure is special protection. The regulations attainment of NSF’s program, project, based on the previous 3 years of establish such a permit system to and strategic goals, and as identified by collecting information under this designate Antarctic Specially Protected the President’s Accountability in clearance and anticipated collections. Areas. Government Initiative; GPRA, and the The average annual reporting burden is The applications received are as NSF’s Strategic Plan. The Foundation’s between 1.5 and 72 hours per follows: FY 2006–2011 Strategic Plan describes ‘‘respondent,’’ depending on whether a four strategic outcome goals of respondent is a direct participant who is Permit Application No. 2011–006 Discovery, Learning, Research self-reporting or representing a project 1. Applicant: Diane Marie McKnight, Infrastructure, and Stewardship. NSF’s and reporting on behalf of many project INSTAAR, 1560 30th Street, complete strategic plan may be found at: participants. Boulder, CO 80309. http://www.nsf.gov/publications/ Dated: November 3, 2010. pub_summ.jsp?ods_key=nsf0648. Activity for Which Permit Is Requested Since the EHR Generic Clearance Suzanne H. Plimpton, research is primarily used for Reports Clearance Officer, National Science Enter into Antarctic Specially accountability purposes, including Foundation. Protected Area. The applicant plans to responding from queries from COVs and [FR Doc. 2010–28210 Filed 11–8–10; 8:45 am] enter the Canada Glacier, Lake Fryxell other scientific experts, a census rather BILLING CODE 7555–01–P (ASPA #131) to continue operation of a than sampling design typically is previously installed, continuously necessary. At the individual project recording stream gauge station, perform level funding can be adjusted based on NATIONAL SCIENCE FOUNDATION maintenance, conduct stream flow individual project’s responses to some measurements and collect water quality of the surveys. Some data collected Notice of permit applications received samples near the stream gauge site. The under the EHR Clearance serve as Under the Antarctic Conservation Act applicant will also collect water quality baseline data for separate research and of 1978 (Pub. L. 95–541) samples of the melt-water of the Canada evaluation studies. AGENCY: National Science Foundation. Glacier and along the length of the In order to conduct program- or ACTION: Notice of permit applications stream to study in-stream portfolio-level evaluations, however, received under the Antarctic biogeochemical processes. Samples of both experimental and quasi- Conservation Act of 1978, Public Law the microbial mats and mosses will also experimental evaluation research 95–541. be collected for study. LIDAR and other studies on STEM education survey and monitoring techniques may interventions require researchers to SUMMARY: The National Science be used to detect changes in the stream identify individual-level and Foundation (NSF) is required to publish bed and algal mat distribution over organization- or project-level control notice of permit applications received to time.

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Location: Canada Glacier, Lake Fryxell, Office of Polar Programs, Rm. 755, Under the Commission’s regulations in Taylor Valley (ASPA 131) National Science Foundation, 4201 Title 10 of the Code of Federal Dates: February 28, 2011 to February Wilson Boulevard, Arlington, VA 22230. Regulations (10 CFR), Section 50.92, 28, 2016 SUPPLEMENTARY INFORMATION: On this means that operation of the facility October 1, 2010 and October 5, 2010, in accordance with the proposed Permit Application No. 2011–022. the National Science Foundation amendment would not (1) involve a 2. Applicant: Adam Kustka, Department published notices in the Federal significant increase in the probability or of Earth & Environmental Sciences, Register of permit applications received. consequences of an accident previously Rutgers University, 101 Warren Permits were issued on November 1, evaluated; or (2) create the possibility of Street, Newark, NJ 07102. 2010 and November 3, 2010, a new or different kind of accident from respectively, to: any accident previously evaluated; or Activity for Which Permit Is Requested (3) involve a significant reduction in a Export from USA, and Introduce Non- Robert W. Sanders ... Permit No. 2011–019. margin of safety. The basis for this indigenous Species into Antarctica. The Yu-Ping Chin ...... Permit No. 2011–018. proposed determination for each applicant is investigating the role of amendment request is shown below. The Commission is seeking public modified circumpolar deep water on Nadene G. Kennedy, supplying Fe to the surface ocean and comments on this proposed Permit Officer. how this Fe supply impacts initial CO2 determination. Any comments received sequestration and how it impacts the [FR Doc. 2010–28209 Filed 11–8–10; 8:45 am] within 30 days after the date of composition of the phytoplankton BILLING CODE 7555–01–P publication of this notice will be community assemblage. To trace the fate considered in making any final and recycling of organic carbon and Fe determination. that has been incorporated into NUCLEAR REGULATORY Normally, the Commission will not phytoplankton, they will use cell lysates COMMISSION issue the amendment until the expiration of 60 days after the date of labeled with the radioisotopes of C or [NRC–2010–0335] Fe. In complementary experiments, publication of this notice. The lysates will also be labeled with the Commission may issue the license Notice; Applications and Amendments amendment before expiration of the 60- stable isotope 13C. These lysates will be to Facility Operating Licenses generated in the university lab using day period provided that its final Involving Proposed No Significant determination is that the amendment cultures of a centric diatom Hazards Considerations and (Thhalassiosira weissflogii) and a involves no significant hazards Containing Sensitive Unclassified Non- consideration. In addition, the temperate haptophyte (Phaeocystic Safeguards Information and Order Commission may issue the amendment globosa)—species that cannot tolerate Imposing Procedures for Access to prior to the expiration of the 30-day seawater temperatures in Antarctica. Sensitive Unclassified Non-Safeguards comment period should circumstances The lysates will be shipped from the Information change during the 30-day comment University via New Zealand and used period such that failure to act in a onboard the research vessel, Nathaniel I. Background timely way would result, for example in B. Palmer, in the Ross Sea. Once Pursuant to section 189a. (2) of the derating or shutdown of the facility. experiments are concluded, the lysates Atomic Energy Act of 1954, as amended Should the Commission take action will be placed in the radioactive waste (the Act), the U.S. Nuclear Regulatory prior to the expiration of either the stream and not released to the Commission (the Commission, NRC, or comment period or the notice period, it environment. NRC staff) is publishing this notice. The will publish in the Federal Register a Location: Ross Sea, Antarctica Act requires the Commission publish notice of issuance. Should the notice of any amendments issued, or Commission make a final No Significant Dates: January 1, 2011 to March 1, 2011 proposed to be issued and grants the Hazards Consideration Determination, Commission the authority to issue and Nadene G. Kennedy, any hearing will take place after make immediately effective any Permit Officer, Office of Polar Programs. issuance. The Commission expects that amendment to an operating license the need to take this action will occur [FR Doc. 2010–28202 Filed 11–8–10; 8:45 am] upon a determination by the very infrequently. BILLING CODE 7555–01–P Commission that such amendment Written comments may be submitted involves no significant hazards by mail to the Chief, Rules, consideration, notwithstanding the Announcements and Directives Branch NATIONAL SCIENCE FOUNDATION pendency before the Commission of a (RADB), TWB–05–B01M, Division of Notice of Permits Issued Under the request for a hearing from any person. Administrative Services, Office of Antarctic Conservation Act of 1978 This notice includes notices of Administration, U.S. Nuclear Regulatory amendments containing sensitive Commission, Washington, DC 20555– AGENCY: National Science Foundation. unclassified non-safeguards information 0001, and should cite the publication ACTION: Notice of permits issued under (SUNSI). date and page number of this Federal Register notice. Written comments may the Antarctic Conservation of 1978, Notice of Consideration of Issuance of also be faxed to the RADB at 301–492– Public Law 95–541. Amendments to Facility Operating 3446. Documents may be examined, Licenses, Proposed No Significant SUMMARY: The National Science and/or copied for a fee, at the NRC’s Hazards Consideration Determination, Foundation (NSF) is required to publish Public Document Room (PDR), located and Opportunity for a Hearing notice of permits issued under the at One White Flint North, Public File Antarctic Conservation Act of 1978. The Commission has made a Area O1 F21, 11555 Rockville Pike (first This is the required notice. proposed determination that the floor), Rockville, Maryland. FOR FURTHER INFORMATION CONTACT: following amendment requests involve Within 60 days after the date of Nadene G. Kennedy, Permit Office, no significant hazards consideration. publication of this notice, any person(s)

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whose interest may be affected by this opinion which support the contention unless they seek an exemption in action may file a request for a hearing and on which the requestor/petitioner accordance with the procedures and a petition to intervene with respect intends to rely in proving the contention described below. to issuance of the amendment to the at the hearing. The requestor/petitioner To comply with the procedural subject facility operating license. must also provide references to those requirements of E-Filing, at least ten Requests for a hearing and a petition for specific sources and documents of (10) days prior to the filing deadline, the leave to intervene shall be filed in which the petitioner is aware and on participant should contact the Office of accordance with the Commission’s which the requestor/petitioner intends the Secretary by e-mail at ‘‘Rules of Practice for Domestic to rely to establish those facts or expert [email protected], or by telephone Licensing Proceedings’’ in 10 CFR Part opinion. The petition must include at (301) 415–1677, to request (1) a 2. Interested person(s) should consult a sufficient information to show that a digital identification (ID) certificate, current copy of 10 CFR 2.309, which is genuine dispute exists with the which allows the participant (or its available at the Commission’s PDR, applicant on a material issue of law or counsel or representative) to digitally located at One White Flint North, Public fact. Contentions shall be limited to sign documents and access the File Area 01F21, 11555 Rockville Pike matters within the scope of the E-Submittal server for any proceeding in (first floor), Rockville, Maryland, or at amendment under consideration. The which it is participating; and (2) advise http://www.nrc.gov/reading-rm/doc- contention must be one which, if the Secretary that the participant will be collections/cfr/part002/part002- proven, would entitle the requestor/ submitting a request or petition for 0309.html. Publicly available records petitioner to relief. A requestor/ hearing (even in instances in which the will be accessible from the Agencywide petitioner who fails to satisfy these participant, or its counsel or Documents Access and Management requirements with respect to at least one representative, already holds an NRC- System’s (ADAMS) Public Electronic contention will not be permitted to issued digital ID certificate). Based upon Reading Room on the Internet at the participate as a party. this information, the Secretary will NRC Web site, http://www.nrc.gov/ Those permitted to intervene become establish an electronic docket for the reading-rm.html. If a request for a parties to the proceeding, subject to any hearing in this proceeding if the hearing or petition for leave to intervene limitations in the order granting leave to Secretary has not already established an is filed within 60 days, the Commission intervene, and have the opportunity to electronic docket. or a presiding officer designated by the participate fully in the conduct of the Information about applying for a Commission or by the Chief hearing. digital ID certificate is available on Administrative Judge of the Atomic If a hearing is requested, and the NRC’s public Web site at http:// Safety and Licensing Board Panel, will Commission has not made a final www.nrc.gov/site-help/e-submittals/ rule on the request and/or petition; and determination on the issue of no apply-certificates.html. System the Secretary or the Chief significant hazards consideration, the requirements for accessing the Administrative Judge of the Atomic Commission will make a final E-Submittal server are detailed in NRC’s Safety and Licensing Board will issue a determination on the issue of no ‘‘Guidance for Electronic Submission,’’ notice of a hearing or an appropriate significant hazards consideration. The which is available on the agency’s order. final determination will serve to decide public Web site at http://www.nrc.gov/ As required by 10 CFR 2.309, a when the hearing is held. If the final site-help/e-submittals.html. Participants petition for leave to intervene shall set determination is that the amendment may attempt to use other software not forth with particularity the interest of request involves no significant hazards listed on the Web site, but should note the petitioner in the proceeding, and consideration, the Commission may that the NRC’s E-Filing system does not how that interest may be affected by the issue the amendment and make it support unlisted software, and the NRC results of the proceeding. The petition immediately effective, notwithstanding Meta System Help Desk will not be able should specifically explain the reasons the request for a hearing. Any hearing to offer assistance in using unlisted why intervention should be permitted held would take place after issuance of software. with particular reference to the the amendment. If the final If a participant is electronically following general requirements: (1) The determination is that the amendment submitting a document to the NRC in name, address, and telephone number of request involves a significant hazards accordance with the E-Filing rule, the the requestor or petitioner; (2) the consideration, any hearing held would participant must file the document nature of the requestor’s/petitioner’s take place before the issuance of any using the NRC’s online, Web-based right under the Act to be made a party amendment. submission form. In order to serve to the proceeding; (3) the nature and All documents filed in NRC documents through the Electronic extent of the requestor’s/petitioner’s adjudicatory proceedings, including a Information Exchange System, users property, financial, or other interest in request for hearing, a petition for leave will be required to install a Web the proceeding; and (4) the possible to intervene, any motion or other browser plug-in from the NRC Web site. effect of any decision or order which document filed in the proceeding prior Further information on the Web-based may be entered in the proceeding on the to the submission of a request for submission form, including the requestor’s/petitioner’s interest. The hearing or petition to intervene, and installation of the Web browser plug-in, petition must also set forth the specific documents filed by interested is available on the NRC’s public Web contentions which the requestor/ governmental entities participating site at http://www.nrc.gov/site-help/e- petitioner seeks to have litigated at the under 10 CFR 2.315(c), must be filed in submittals.html. proceeding. accordance with the NRC E-Filing rule Once a participant has obtained a Each contention must consist of a (72 FR 49139, August 28, 2007). The digital ID certificate and a docket has specific statement of the issue of law or E-Filing process requires participants to been created, the participant can then fact to be raised or controverted. In submit and serve all adjudicatory submit a request for hearing or petition addition, the requestor/petitioner shall documents over the Internet, or in some for leave to intervene. Submissions provide a brief explanation of the bases cases to mail copies on electronic should be in Portable Document Format for the contention and a concise storage media. Participants may not (PDF) in accordance with NRC guidance statement of the alleged facts or expert submit paper copies of their filings available on the NRC public Web site at

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http://www.nrc.gov/site-help/e- depositing the document with the information (SUNSI). The amendments submittals.html. A filing is considered provider of the service. A presiding would approve the proposed Cyber complete at the time the documents are officer, having granted an exemption Security Plan and implementation submitted through the NRC’s E-Filing request from using E-Filing, may require schedule and would revise the existing system. To be timely, an electronic a participant or party to use Facility Operating License (FOL) filing must be submitted to the E-Filing E-Filing if the presiding officer Physical Protection License Condition system no later than 11:59 p.m. Eastern subsequently determines that the reason to require the licensee to fully Time on the due date. Upon receipt of for granting the exemption from use of implement and maintain in effect all a transmission, the E-Filing system E-Filing no longer exists. provisions of the Commission-approved time-stamps the document and sends Documents submitted in adjudicatory Cyber Security Plan as required by 10 the submitter an e-mail notice proceedings will appear in NRC’s CFR 73.54. confirming receipt of the document. The electronic hearing docket which is Basis for proposed no significant E-Filing system also distributes an available to the public at http:// hazards consideration determination: e-mail notice that provides access to the ehd.nrc.gov/EHD_Proceeding/home.asp, As required by 10 CFR 50.91(a), the document to the NRC Office of the unless excluded pursuant to an order of licensee has provided its analysis of the General Counsel and any others who the Commission, or the presiding issue of no significant hazards have advised the Office of the Secretary officer. Participants are requested not to consideration, which is presented that they wish to participate in the include personal privacy information, below: proceeding, so that the filer need not such as social security numbers, home serve the documents on those addresses, or home phone numbers in Criterion 1. Does the proposed amendment participants separately. Therefore, their filings, unless an NRC regulation involve a significant increase in the applicants and other participants (or or other law requires submission of such probability or consequences of an accident previously evaluated? their counsel or representative) must information. With respect to apply for and receive a digital ID copyrighted works, except for limited Response: No. certificate before a hearing request/ excerpts that serve the purpose of the The proposed amendment incorporates a petition to intervene is filed so that they adjudicatory filings and would new requirement in the Facility Operating constitute a Fair Use application, License (FOL) to implement and maintain a can obtain access to the document via Cyber Security Plan as part of the facility’s the E-Filing system. participants are requested not to include overall program for physical protection. A person filing electronically using copyrighted materials in their Inclusion of the Cyber Security Plan in the the agency’s adjudicatory E-Filing submission. FOL itself does not involve any modifications system may seek assistance by Petitions for leave to intervene must to the safety-related structures, systems, or contacting the NRC Meta System Help be filed no later than 60 days from the components (SSCs). Rather, the Cyber Desk through the ‘‘Contact Us’’ link date of publication of this notice. Non- Security Plan describes how the located on the NRC Web site at http:// timely filings will not be entertained requirements of 10 CFR 73.54 are to be www.nrc.gov/site-help/ absent a determination by the presiding implemented to identify, evaluate, and e-submittals.html, by e-mail at officer that the petition or request mitigate cyber attacks up to and including [email protected], or by a toll- should be granted or the contentions the design basis cyber attack threat, thereby achieving high assurance that the facility’s free call at 1–866–672–7640. The NRC should be admitted, based on a digital computer and communications Meta System Help Desk is available balancing of the factors specified in systems and networks are protected from between 8 a.m. and 8 p.m., Eastern 10 CFR 2.309(c)(1)(i)–(viii). cyber attacks. The addition of the Cyber Time, Monday through Friday, For further details with respect to this Security Plan to the Physical Security Plan excluding government holidays. amendment action, see the application will not alter previously evaluated Updated Participants who believe that they for amendment which is available for Final Safety Analysis Report (UFSAR) design have a good cause for not submitting public inspection at the Commission’s basis accident analysis assumptions, add any documents electronically must file an PDR, located at One White Flint North, accident initiators, or affect the function of exemption request, in accordance with Public File Area 01F21, 11555 Rockville the plant safety-related SSCs as to how they 10 CFR 2.302(g), with their initial paper are operated, maintained, modified, tested, or Pike (first floor), Rockville, Maryland. inspected. filing requesting authorization to Publicly available records will be Therefore, it is concluded that this change continue to submit documents in paper accessible electronically from the does not involve a significant increase in the format. Such filings must be submitted ADAMS Public Electronic Reading probability or consequences of an accident by: (1) First class mail addressed to the Room on the Internet at the NRC Web previously evaluated. Office of the Secretary of the site, http://www.nrc.gov/reading-rm/ Criterion 2. Does the proposed amendment Commission, U.S. Nuclear Regulatory adams.html. If you do not have access create the possibility of a new or different Commission, Washington, DC 20555– to ADAMS or if there are problems in kind of accident from any accident 0001, Attention: Rulemaking and accessing the documents located in previously evaluated? Adjudications Staff; or (2) courier, ADAMS, contact the PDR Reference Response: No. express mail, or expedited delivery staff at 1–800–397–4209, 301–415–4737, This proposed amendment provides service to the Office of the Secretary, or by e-mail to [email protected]. assurance that safety-related SSCs are Sixteenth Floor, One White Flint North, protected from cyber attacks. Implementation 11555 Rockville Pike, Rockville, Arizona Public Service Company, et al., of 10 CFR 73.54 and the inclusion of a plan Maryland, 20852, Attention: Docket Nos. STN 50–528, STN 50–529, in the FOL do not result in the need of any Rulemaking and Adjudications Staff. and STN 50–530, Palo Verde Nuclear new or different FSAR [Final Safety Analysis Participants filing a document in this Generating Station, Units 1, 2, and 3, Report] design basis accident analysis. It does manner are responsible for serving the Maricopa County, Arizona not introduce new equipment that could create a new or different kind of accident, document on all other participants. Date of amendment request: July 22, and no new equipment failure modes are Filing is considered complete by first- 2010. created. As a result, no new accident class mail as of the time of deposit in Description of amendment request: scenarios, failure mechanisms, or limiting the mail, or by courier, express mail, or This amendment request contains single failures are introduced as a result of expedited delivery service upon sensitive unclassified non-safeguards this proposed amendment.

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Therefore, the proposed change does not addresses the application as it pertains This proposed amendment provides create the possibility of a new or different to KPS. The licensee requested NRC assurance that safety-related structures, kind of accident from any previously approval of the KPS Cyber Security systems and components (SSCs) are evaluated. Plan, provided a proposed protected from cyber attacks. Implementation Criterion 3. Does the proposed amendment of 10 CFR 73.54 and the inclusion of a plan implementation schedule, and proposed in the FOL do not result in the need of any involve a significant reduction in a margin of to add a sentence to License Condition safety? new or different design basis accident 2.C.(4), ‘‘Physical Protection,’’ of KPS analysis. It does not introduce new Response: No. Facility Operating License (FOL) DPR– equipment that could create a new or The margin of safety is associated with the 43 that would affirm when the licensee different kind of accident, and no new confidence in the ability of the fission would fully implement and maintain in equipment failure modes are created. As a product barriers (i.e., fuel cladding, reactor effect all provisions of the Cyber result, no new accident scenarios, failure coolant pressure boundary, and containment mechanisms, or limiting single failures are structure) to limit the level of radiation to the Security Plan. Basis for proposed no significant introduced as a result of this proposed public. The proposed amendment would not amendment. alter the way any safety-related SSC hazards consideration determination: Therefore, the proposed change does not functions and would not alter the way the As required by 10 CFR 50.91(a), the create the possibility of a new or different plant is operated. The amendment provides licensee has provided its analysis of the kind of accident from any previously assurance that safety-related SSCs are issue of no significant hazards evaluated. protected from cyber attacks. The proposed consideration. The NRC staff reviewed Criterion 3. Does the proposed change amendment would not introduce any new the licensee’s NHSC analysis and has involve a significant reduction in a margin of uncertainties or change any existing prepared its own as follows: safety? uncertainties associated with any safety limit. The proposed amendment would have Criterion 1. Does the proposed change Response: No. no impact on the structural integrity of the involve a significant increase in the The margin of safety is associated with the fuel cladding, reactor coolant pressure probability or consequences of an accident confidence in the ability of the fission boundary, or containment structure. Based previously evaluated? product barriers (i.e., fuel cladding, reactor on the above considerations, the proposed coolant pressure boundary, and containment Response: No. amendment would not degrade the structure) to limit the level of radiation to the The Plan establishes the licensing basis for public. The proposed amendment would not confidence in the ability of the fission the Cyber Security Program for the Sites. The product barriers to limit the level of radiation alter the way any safety-related SSC Plan establishes how to achieve high functions and would not alter the way the to the public. assurance that specified nuclear power plant Therefore, the proposed change does not plant is operated. The amendment provides digital computer and communication assurance that safety-related SSCs are involve a significant reduction in a margin of systems, networks and functions are safety. protected from cyber attacks. The proposed adequately protected against cyber attacks up amendment would not introduce any new The NRC staff has reviewed the to and including the design basis threat. uncertainties or change any existing licensee’s analysis and, based on that Part one of the proposed changes is uncertainties associated with any safety review, it appears that the three designed to achieve high assurance that the limit. The proposed amendment would have systems are protected from cyber attacks. The standards of 10 CFR 50.92(c) are no impact on the structural integrity of the Plan describes how plant modifications that fuel cladding, reactor coolant pressure satisfied. Therefore, the NRC staff involve digital computer systems are proposes to determine that the request boundary, or containment structure. Based reviewed to provide high assurance of on the above considerations, the proposed for amendments involves no significant adequate protection against cyber attacks, up amendment would not degrade the to and including the design basis threat. The hazards consideration. confidence in the ability of the fission proposed change does not alter accident Attorney for licensee: Michael G. product barriers to limit the level of radiation analysis assumptions, add any initiators, or Green, Senior Regulatory Counsel, to the public. affect the function of plant systems or the Therefore, the proposed change does not Pinnacle West Capital Corporation, P.O. manner in which systems are operated, Box 52034, Mail Station 8695, Phoenix, maintained, modified, tested, or inspected. involve a significant reduction in a margin of Arizona 85072–2034. The first part of the proposed change is safety. NRC Branch Chief: Michael T. designed to achieve high assurance that the Based on this review, it appears that Markley. systems within the scope of the requirement the three standards of 10 CFR 50.92(c) are protected from cyber attacks and has no Dominion Energy Kewaunee, Inc., are satisfied. Therefore, the NRC staff impact on the probability or consequences of proposes to determine that the proposed Docket No. 50–305, Kewaunee Power an accident previously evaluated. The Station (KPS), Kewaunee County, proposed change implements a Cyber amendment involves no significant Wisconsin Security Plan as a requirement not previously hazards consideration. formally addressed. As such, the proposed Attorney for licensee: Lillian M. Date of amendment request: July 12, Plan provides a significant enhancement to Cuoco, Senior Counsel, Dominion 2010, as supplemented by a letter dated cyber security where no requirement existed Resources Services, Inc., Counsel for August 5, 2010. before. Dominion Energy Kewaunee, Inc., 120 Description of amendment request: The second part of the proposed changes Tredegar Street, Richmond, VA 23219. This amendment request contains adds a sentence to the existing facility license NRC Branch Chief: Robert J. conditions for Physical Protection. These sensitive unclassified non-safeguards Pascarelli. information (SUNSI). The licensee changes are administrative and have no proposed an amendment to the Facility impact on the probability or consequences of FirstEnergy Nuclear Operating an accident previously evaluated. Company, et al., Docket No. 50–440, Operating License for KPS. In the same Therefore, it is concluded that these amendment request letter, sent under changes do not involve a significant increase Perry Nuclear Power Plant, Unit No. 1, Dominion Resources Services, Inc. in the probability or consequences of an Lake County, Ohio letterhead, Millstone Power Station accident previously evaluated. Date of amendment request: July 22, Units 2 and 3; North Anna Power Criterion 2. Does the proposed change create 2010. Station Units 1 and 2; and Surry Power the possibility of a new or different kind of Description of amendment request: Station Units 1 and 2 submitted accident from any accident previously This amendment request contains amendment requests pertaining to their evaluated? sensitive unclassified non-safeguards Cyber Security Plans. This notice only Response: No. information (SUNSI). The proposed

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amendment to the Facility operating safety, security, or emergency preparedness alter accident analysis assumptions, add any License (FOL) includes: (1) The functions. initiators, affect the function of plant proposed Perry Nuclear Power Plant Part one of the proposed change is systems, or affect the manner in which (PNPP) Unit No. 1 Cyber Security Plan, designed to achieve high assurance that the systems are operated. The first part of the systems within the scope of the rule are proposed change is designed to achieve high (2) an implementation schedule, and (3) protected from cyber attacks. The Plan itself assurance that the systems within the scope a proposed sentence to be added to the does not require any plant modifications. of the rule are protected from cyber attacks existing FOL Physical Protection license However, the Plan does describe how plant and does not create the possibility of a new condition 2.E to require the FirstEnergy modifications which involve digital or different kind of accident from any Nuclear Operating Company (FENOC, computer systems are reviewed to provide previously evaluated. the licensee) to fully implement and high assurance of adequate protection against The second part of the proposed change is maintain in effect all provisions of the cyber attacks, up to and including the design an implementation schedule. The third part basis threat as defined in the rule. The Commission approved cyber plan as adds a sentence to the existing FOL license proposed change does not alter the plant condition 2.E for Physical Protection. Both of required by 10 CFR 73.54. Federal configuration, require new plant equipment these changes are administrative and do not Register notice issued the final rule that to be installed, alter accident analysis create the possibility of a new or different amended 10 CFR Part 73. The assumptions, add any initiators, affect the kind of accident from any previously regulations in 10 CFR 73.54, ‘‘Protection function of plant systems, or affect the evaluated. of digital computer and communication manner in which systems are operated. The Therefore, the proposed change does not systems and networks,’’ establish the first part of the proposed change is designed create the possibility of a new or different requirements for a cyber security to achieve high assurance that the systems kind of accident from any previously within the scope of the rule are protected program. This regulation specifically evaluated. from cyber attacks and has no impact on the Criterion 3: The proposed change does not requires each licensee currently probability or consequences of an accident licensed to operate a nuclear power involve a significant reduction in a margin of previously evaluated. safety plant under 10 CFR Part 50 to submit a The second part of the proposed change is cyber security plan that satisfies the an implementation schedule. The third part The proposed change is required by 10 requirements of the rule. Each submittal adds a sentence to the existing FOL license CFR 73.54 and includes three parts. The first condition 2.E for Physical Protection. Both of part is the submittal of the Plan for NRC must include a proposed review and approval. The Plan provides a implementation schedule and these changes are administrative and have no impact on the probability or consequences of description of how the requirements of the implementation of the licensee’s cyber an accident previously evaluated. rule will be implemented at the PNPP. The security program must be consistent Therefore, it is concluded that this change Plan establishes the licensing basis for the with the approved schedule. The does not involve a significant increase in the FENOC cyber security program for the PNPP. background for this application is probability or consequences of an accident The Plan establishes how to achieve high addressed by the NRC’s Notice of previously evaluated. assurance that nuclear power plant digital Availability, Federal Register Notice, computer and communication systems and Criterion 2: The proposed change does not networks associated with the following are Final Rule 10 CFR Part 73, Power create the possibility of a new or different adequately protected against cyber attacks up Reactor Security Requirements, kind of accident from any accident to and including the design basis threat: published on March 27, 2009 (74 FR previously evaluated 1. Safety-related and important-to-safety 13926). The proposed change is required by 10 functions, Basis for proposed no significant CFR 73.54 and includes three parts. The first 2. Security functions, part is the submittal of the Plan for NRC hazards consideration determination: 3. Emergency preparedness functions review and approval. The Plan provides a including offsite communications, and As required by 10 CFR 50.91(a), the description of how the requirements of the 4. Support systems and equipment which licensee has provided its analysis of the rule will be implemented at the PNPP. The if compromised, would adversely impact issue of no significant hazards Plan establishes the licensing basis for the safety, security, or emergency preparedness consideration, which is presented FENOC cyber security program for the PNPP. functions. below: The Plan establishes how to achieve high Part one of the proposed change is assurance that nuclear power plant digital designed to achieve high assurance that the Criterion 1: The proposed change does not computer and communication systems and systems within the scope of the rule are involve a significant increase in the networks associated with the following are protected from cyber attacks. Plant safety probability or consequences of an accident adequately protected against cyber attacks up margins are established through Limiting previously evaluated to and including the design basis threat: Conditions for Operation, Limiting Safety The proposed change is required by 10 1. Safety-related and important-to-safety System Settings and Safety limits specified in functions, CFR 73.54 and includes three parts. The first the Technical Specifications, methods of 2. Security functions, part is the submittal of the Plan for NRC evaluation that establish design basis or 3. Emergency preparedness functions review and approval. The Plan provides a change Updated Final Safety Analysis. including offsite communications, and Because there is no change to these description of how the requirements of the 4. Support systems and equipment which established safety margins, the proposed rule will be implemented at the PNPP. The if compromised, would adversely impact change does not involve a significant Plan establishes the licensing basis for the safety, security, or emergency preparedness reduction in a margin of safety. FENOC cyber security program for the PNPP. functions. The second part of the proposed change is The Plan establishes how to achieve high Part one of the proposed change is an implementation schedule. The third part assurance that nuclear power plant digital designed to achieve high assurance that the adds a sentence to the existing FOL license computer and communication systems and systems within the scope of the rule are condition 2.E for Physical Protection. Both of networks associated with the following are protected from cyber attacks. The Plan itself these changes are administrative and do not adequately protected against cyber attacks up does not require any plant modifications. involve a significant reduction in a margin of to and including the design basis threat: However, the Plan does describe how plant safety. 1. Safety-related and important-to-safety modifications which involve digital Therefore, the proposed change does not functions, computer systems are reviewed to provide involve a significant reduction in a margin of 2. Security functions, high assurance of adequate protection against safety. 3. Emergency preparedness functions cyber attacks, up to and including the design including offsite communications, and basis threat defined in the rule. The proposed The NRC staff has reviewed the 4. Support systems and equipment which change does not alter the plant configuration, licensee’s analysis and, based on this if compromised, would adversely impact require new plant equipment to be installed, review, it appears that the three

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standards of 10 CFR 50.92(c) are amendment does not involve a significant Southern California Edison Company, et satisfied. Therefore, the NRC staff increase in the probability or consequences al., Docket Nos. 50–361 and 50–362, proposes to determine that the of an accident previously evaluated. San Onofre Nuclear Generating Station, amendment request involves no Criterion 2. Does the proposed amendment Units 2 and 3, San Diego County, significant hazards consideration. create the possibility of a new or different California Attorney for licensee: David W. kind of accident from any accident previously evaluated? Date of amendment request: July 22, Jenkins, FirstEnergy Nuclear Operating 2010. Company, FirstEnergy Corporation, 76 Response: No. Description of amendment request: South Main Street, Akron, OH 44308. The proposed amendment provides This amendment request contains NRC Branch Chief: Robert D. Carlson. assurance that safety-related SSCs are sensitive unclassified non-safeguards protected from cyber attacks. Implementation NextEra Energy Duane Arnold, LLC, information (SUNSI). The amendments of 10 CFR 73.54 and the inclusion of a plan would approve the proposed Cyber Docket No. 50–331, Duane Arnold in the Facility Operating License do not Security Plan and implementation Energy Center, Linn County, Iowa result in the need for any new or different Date of amendment request: July 14, FSAR design basis accident analysis. It does schedule and would revise the existing 2010. not introduce new equipment that could Facility Operating License Physical Description of amendment request: create a new or different kind of accident, Protection License Condition to require This amendment request contains and no new equipment failure modes are the licensee to fully implement and sensitive unclassified non-safeguards created. As a result, no new accident maintain in effect all provisions of the information (SUNSI). The licensee scenarios, failure mechanisms, or limiting Commission-approved Cyber Security proposes an amendment to the Facility single failures are introduced as a result of Plan as required by 10 CFR 73.54. Operating License for the Duane Arnold this proposed amendment. Therefore, the Basis for proposed no significant Energy Center. The licensee requests proposed amendment does not create a hazards consideration determination: NRC approval of the NextEra Energy possibility for an accident of a new or As required by 10 CFR 50.91(a), the Duane Arnold Cyber Security Plan, different type than those previously licensee has provided its analysis of the evaluated. provides an implementation schedule, issue of no significant hazards and adds a sentence to the existing Criterion 3. Does the proposed amendment consideration, which is presented Operation License Physical Protection involve a significant reduction in a margin of below: safety? license condition to require NextEra Criterion 1. Do the proposed amendments Energy Duane Arnold to fully Response: No. involve a significant increase in the implement and maintain in effect all The margin of safety is associated with the probability or consequences of an accident provisions of the Commission-approved confidence in the ability of the fission previously evaluated? product barriers (i.e., fuel cladding, reactor Cyber Security Plan. Response: No. coolant pressure boundary, and containment Basis for proposed no significant The proposed amendment incorporates a hazards consideration determination: structure) to limit the level of radiation to the new requirement in the Facility Operating public. The proposed amendment would not As required by 10 CFR 50.91(a), the License to implement and maintain the Cyber alter the way any safety-related SSC Security Plan as part of the facility’s overall licensee has provided its analysis of the functions and would not alter the way the issue of no significant hazards program for physical protection. Inclusion of plant is operated. The amendment provides the Cyber Security Plan in the Facility consideration (NSHC). The licensee’s assurance that safety-related SSCs are Operating License itself does not involve any NSHC analysis, addressing each issue protected from cyber attacks. The proposed modifications to the safety-related structures, described above, is reproduced below: amendment would not introduce any new systems, or components (SSCs). Rather, the uncertainties or change any existing Cyber Security Plan describes how the Criterion 1. Does the proposed amendment uncertainties associated with any safety requirements of 10 CFR 73.54 are to be involve a significant increase in the limit. The proposed amendment would have implemented to identify, evaluate, and probability or consequences of an accident mitigate cyber attacks up to and including previously evaluated? no impact on the structural integrity of the fuel cladding, reactor coolant pressure the design basis cyber attack threat, thereby Response: No. boundary, or containment structure. Based achieving high assurance that the facility’s The proposed amendment incorporates a on the above considerations, the proposed digital computer and communications new requirement in the Facility Operating amendment would not degrade the systems and networks are protected from License to implement and maintain a Cyber confidence in the ability of the fission cyber attacks. The implementation and Security Plan as part of the facility’s overall incorporation of the Cyber Security Plan into product barriers to limit the level of radiation program for physical protection. Inclusion of the Facility Operating License will not alter to the public. Therefore, the proposed change the Cyber Security Plan in the Facility previously evaluated Updated Final Safety does not involve a significant reduction in a Operating License itself does not involve any Analysis Report (UFSAR) design basis modifications to the safety-related structures, margin of safety. accident analysis assumptions, add any systems or components (SSCs). Rather, the The NRC staff has reviewed the accident initiators, or affect the function of Cyber Security Plan describes how the the plant safety-related SSCs as to how they requirements of 10 CFR 73.54 are to be licensee’s analysis, and based on this are operated, maintained, modified, tested, or implemented to identify, evaluate, and review, it appears that the three inspected. mitigate cyber attacks up to and including standards of 10 CFR 50.92(c) are Therefore, the proposed amendment does the design basis cyber attack threat, thereby satisfied. Therefore, the NRC staff not involve a significant increase in the achieving high assurance that the facility’s proposes to determine that the probability or consequences of an accident digital computer and communications amendment request involves no previously evaluated. systems and networks are protected from cyber attacks. The Cyber Security Plan will significant hazards consideration. Criterion 2. Do the proposed amendments not alter previously evaluated Final Safety Attorney for licensee: Mr. R.E. create the possibility of a new or different Analysis Report (FSAR) design basis accident kind of accident from any accident Helfrich, Florida Power & Light previously evaluated? analysis assumptions, add any accident Company, P. O. Box 14000, Juno Beach, initiators, or affect the function of the plant FL 33408–0420. Response: No. safety-related SSCs as to how they are This proposed amendment provides operated, maintained, modified, tested, or NRC Branch Chief: Robert J. assurance that safety-related SSCs are inspected. Therefore, the proposed Pascarelli. protected from cyber attacks. Implementation

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of 10 CFR 73.54 and the inclusion of the Operating Company’s request for a result, no new accident scenarios, failure Cyber Security Plan in the Facility Operating approval of South Texas Project, Units mechanisms, or limiting single failures are License do not result in the need of any new 1 and 2 Cyber Security Plan in introduced as a result of this proposed or different UFSAR design basis accident accordance with 10 CFR 73.54. The amendment. analysis. It does not introduce new Therefore, the proposed change does not equipment that could create a new or amendments would also revise Section create the possibility of a new or different different kind of accident, and no new 2.F of the Facility Operating Licenses kind of accident from any previously equipment failure modes are created. As a (FOLs) numbered NPF–76 and NPF–80 evaluated. result, no new accident scenarios, failure to incorporate the requirement to fully Criterion 3. Do the proposed changes involve mechanisms, or limiting single failures are implement and maintain in effect all a significant reduction in a margin of safety? introduced as a result of this proposed provisions of the Commission-approved amendment. Response: No. cyber security plan. The requirements of The margin of safety is associated with the Therefore, the proposed amendment does 10 CFR 73.54, ‘‘Protection of digital not create the possibility of a new or different confidence in the ability of the fission computer and communication systems product barriers (i.e., fuel cladding, reactor kind of accident from any previously ’’ evaluated. and networks, establish the coolant pressure boundary, and containment requirements for a cyber security structure) to limit the level of radiation to the Criterion 3. Do the proposed amendments program. public. The proposed amendment would not involve a significant reduction in a margin of Basis for proposed no significant alter the way any safety related SSC safety? hazards consideration determination: functions and would not alter the way the Response: No. As required by 10 CFR 50.91(a), the plant is operated. The amendment provides The margin of safety is associated with the licensee has provided its analysis of the assurance that safety related SSCs are confidence in the ability of the fission protected from cyber attacks. The proposed product barriers (i.e., fuel cladding, reactor issue of no significant hazards amendment would not introduce any new coolant pressure boundary, and containment consideration, which is presented uncertainties or change any existing structure) to limit the level of radiation to the below: uncertainties associated with any safety public. The proposed amendment would not limit. The proposed amendment would have alter the way any safety-related SSC Criterion 1. Do the proposed changes involve no impact on the structural integrity of the functions and would not alter the way the a significant increase in the probability or fuel cladding, reactor coolant pressure plant is operated. consequences of an accident previously boundary, or containment structure. Based The amendment provides assurance that evaluated? on the above considerations, the proposed safety-related SSCs are protected from cyber Response: No. amendment would not degrade the attacks. The proposed amendment would not The proposed change incorporates a new confidence in the ability of the fission introduce any new uncertainties or change requirement in the FOL to implement and product barriers to limit the level of radiation any existing uncertainties associated with maintain the Cyber Security Plan as part of to the public. any safety limit. The proposed amendment the facility’s overall program for physical Therefore the proposed change does not would have no impact on the structural protection. Inclusion of the Cyber Security involve a reduction in a margin of safety. integrity of the fuel cladding, reactor coolant Plan in the FOL itself does not involve any pressure boundary, or containment structure. modifications to the safety related structures, The NRC staff has reviewed the Based on the above considerations, the systems or components (SSCs). Rather, the licensee’s analysis and, based on this proposed amendment would not degrade the Cyber Security Plan describes how the review, it appears that the three confidence in the ability of the fission requirements of 10 CFR 73.54 are to be standards of 10 CFR 50.92(c) are product barriers to limit the level of radiation implemented to identify, evaluate, and satisfied. Therefore, the NRC staff to the public. mitigate cyber attacks up to and including proposes to determine that the Therefore, the proposed amendment does the design basis cyber attack threat, thereby amendment request involves no achieving high assurance that the facility’s not involve a significant reduction in a significant hazards consideration. margin of safety. digital computer and communications systems and networks are protected from Attorney for licensee: A.H. Gutterman, The NRC staff has reviewed the cyber attacks. The implementation and Esq., Morgan, Lewis & Bockius, 1111 licensee’s analysis and, based on that incorporation of the Cyber Security Plan into Pennsylvania Avenue, NW., review, it appears that the three the FOL will not alter previously evaluated Washington, DC 20004. standards of 10 CFR 50.92(c) are Updated Final Safety Analysis Report NRC Branch Chief: Michael T. satisfied. Therefore, the NRC staff (UFSAR) design basis accident analysis Markley. proposes to determine that the request assumptions, add any accident initiators, or affect the function of the plant safety related Union Electric Company, Docket No. for amendments involves no significant SSCs as to how they are operated, 50–483, Callaway Plant, Unit 1, hazards consideration. maintained, modified, tested, or inspected. Callaway County, Missouri Attorney for licensee: Douglas K. Therefore, the proposed changes do not Porter, Esquire, Southern California involve a significant increase in the Date of amendment request: August Edison Company, 2244 Walnut Grove probability or consequences of an accident 12, 2010. Avenue, Rosemead, California 91770. previously evaluated. Description of amendment request: NRC Branch Chief: Michael T. Criterion 2. Do the proposed changes create The amendment request contains Markley. the possibility of a new or different kind of sensitive unclassified non-safeguards accident from any accident previously information (SUNSI). The amendment STP Nuclear Operating Company, evaluated? would approve the Union Electric Docket Nos. 50–498 and 50–499, South Response: No. Company’s request for approval of the Texas Project, Units 1 and 2, Matagorda This proposed amendment provides Callaway Plant, Unit 1 Cyber Security County, Texas assurance that safety related SSCs are Plan in accordance with 10 CFR 73.54. Date of amendment request: July 27, protected from cyber attacks. Implementation The amendments would also revise 2010. of 10 CFR 73.54 and the inclusion of the Section 2.E of the Facility Operating Cyber Security Plan in the FOL do not result Description of amendment request: in the need of any new or different UFSAR License (FOL) numbered NPF–30 to This amendments request contains design basis accident analysis. It does not incorporate the provisions to implement sensitive unclassified non-safeguards introduce new equipment that could create a and maintain in effect all provisions of information (SUNSI). The amendments new or different kind of accident, and no the Commission-approved cyber would approve the STP Nuclear new equipment failure modes are created. As security plan. The requirements of 10

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CFR 73.54, ‘‘Protection of digital Criterion 3: The proposed change does not Order Imposing Procedures for Access computer and communication systems involve a significant reduction in a margin of to Sensitive Unclassified Non- and networks,’’ establish the safety Safeguards Information for Contention requirements for a cyber security The margin of safety is associated with the Preparation program. confidence in the ability of the fission Arizona Public Service Company, et al., product barriers (i.e., fuel cladding, reactor Basis for proposed no significant Docket Nos. STN 50–528, STN 50–529, coolant pressure boundary, and containment hazards consideration determination: and STN 50–530, Palo Verde Nuclear structure) to limit the level of radiation to the As required by 10 CFR 50.91(a), the Generating Station, Units 1, 2, and 3, public. The proposed amendment would not licensee has provided its analysis of the Maricopa County, Arizona issue of no significant hazards alter the way any safety-related SSC consideration, which is presented functions and would not alter the way the Dominion Energy Kewaunee, Inc., below: plant is operated. The amendment provides Docket No. 50–305, Kewaunee Power assurance that safety-related SSCs are Station, Kewaunee County, Wisconsin Criterion 1: The proposed change does not protected from cyber attacks. The proposed FirstEnergy Nuclear Operating involve a significant increase in the amendment would not introduce any new Company, et al., Docket No. 50–440, probability or consequences of an accident uncertainties or change any existing Perry Nuclear Power Plant, Unit 1, Lake previously evaluated uncertainties associated with any safety County, Ohio The proposed change incorporates a new limit. The proposed amendment would have requirement in the Facility Operating License no impact on the structural integrity of the NextEra Energy Duane Arnold, LLC, to implement and maintain the Cyber fuel cladding, reactor coolant pressure Docket No. 50–331, Duane Arnold Security Plan as part of the facility’s overall boundary, or containment structure. Based Energy Center, Linn County, Iowa program for physical protection. Inclusion of on the above considerations, the proposed Southern California Edison Company, et the Cyber Security Plan in the Facility amendment would not degrade the al., Docket Nos. 50–361 and 50–362, Operating License itself does not involve any confidence in the ability of the fission San Onofre Nuclear Generating Station, modifications to the safety-related structures, product barriers to limit the level of radiation Units 2 and 3, San Diego County, systems or components (SSCs). Rather, the to the public. California Cyber Security Plan describes how the Therefore, the proposed change does not requirements of 10 CFR 73.54 are to be involve a significant reduction in a margin of STP Nuclear Operating Company, implemented to identify, evaluate, and safety. Docket Nos. 50–498 and 50–499, South mitigate cyber attacks up to and including Texas Project, Units 1 and 2, Matagorda the design basis cyber attack threat, thereby The NRC staff has reviewed the County, Texas achieving high assurance that the facility’s licensee’s analysis and, based on this Union Electric Company, Docket No. digital computer and communications review, it appears that the three 50–483, Callaway Plant, Unit 1, systems and networks are protected from standards of 10 CFR 50.92(c) are Callaway County, Missouri cyber attacks. The implementation and satisfied. Therefore, the NRC staff incorporation of the Cyber Security Plan into proposes to determine that the A. This Order contains instructions the Facility Operating License will not alter amendment request involves no regarding how potential parties to this previously evaluated Final Safety Analysis significant hazards consideration. proceeding may request access to Report (FSAR) design basis accident analysis documents containing Sensitive assumptions, add any accident initiators, or Attorney for licensee: John O’Neill, Unclassified Non-Safeguards affect the function of the plant safety-related Esq., Pillsbury Winthrop Shaw Pittman Information (SUNSI). SSCs as to how they are operated, LLP, 2300 N Street, NW., Washington, B. Within 10 days after publication of maintained, modified, tested, or inspected. DC 20037. this notice of hearing and opportunity to Therefore, it is concluded that this change NRC Branch Chief: Michael T. petition for leave to intervene, any does not involve a significant increase in the Markley. potential party who believes access to probability or consequences of an accident SUNSI is necessary to respond to this previously evaluated. notice may request such access. A Criterion 2: The proposed change does not ‘‘potential party’’ is any person who create the possibility of a new or different intends to participate as a party by kind of accident from any accident demonstrating standing and filing an previously evaluated admissible contention under 10 CFR This proposed amendment provides 2.309. Requests for access to SUNSI assurance that safety-related SSCs are submitted later than 10 days after protected from cyber attacks. Implementation publication will not be considered of 10 CFR 73.54 and the inclusion of the absent a showing of good cause for the Cyber Security Plan in the Facility Operating late filing, addressing why the request License do not result in the need of any new could not have been filed earlier. or different FSAR design basis accident C. The requestor shall submit a letter analysis. It does not introduce new requesting permission to access SUNSI equipment that could create a new or to the Office of the Secretary, U.S. different kind of accident, and no new equipment failure modes are created. As a Nuclear Regulatory Commission, result, no new accident scenarios, failure Washington, DC 20555–0001, Attention: mechanisms, or limiting single failures are Rulemakings and Adjudications Staff, introduced as a result of this proposed and provide a copy to the Associate amendment. General Counsel for Hearings, Therefore, the proposed change does not Enforcement and Administration, Office create the possibility of a new or different of the General Counsel, Washington, DC kind of accident from any accident 20555–0001. The expedited delivery or previously evaluated. courier mail address for both offices is:

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U.S. Nuclear Regulatory Commission, the requested documents, and any other 2.318(a); or (c) if another officer has 11555 Rockville Pike, Rockville, conditions that may apply to access been designated to rule on information Maryland 20852. The e-mail address for those documents. These conditions may access issues, with that officer. the Office of the Secretary and the include, but are not limited to, the H. Review of Grants of Access. A party Office of the General Counsel are signing of a Non-Disclosure Agreement other than the requestor may challenge [email protected] and or Affidavit, or Protective Order 2 setting an NRC staff determination granting [email protected], respectively.1 forth terms and conditions to prevent access to SUNSI whose release would The request must include the following the unauthorized or inadvertent harm that party’s interest independent information: disclosure of SUNSI by each individual of the proceeding. Such a challenge (1) A description of the licensing who will be granted access to SUNSI. must be filed with the Chief action with a citation to this Federal F. Filing of Contentions. Any Administrative Judge within 5 days of Register notice; contentions in these proceedings that the notification by the NRC staff of its (2) The name and address of the are based upon the information received grant of access. potential party and a description of the as a result of the request made for If challenges to the NRC staff potential party’s particularized interest SUNSI must be filed by the requestor no that could be harmed by the action determinations are filed, these later than 25 days after the requestor is procedures give way to the normal identified in C.(1); granted access to that information. (3) The identity of the individual or process for litigating disputes However, if more than 25 days remain concerning access to information. The entity requesting access to SUNSI and between the date the petitioner is the requestor’s basis for the need for the availability of interlocutory review by granted access to the information and the Commission of orders ruling on information in order to meaningfully the deadline for filing all other participate in this adjudicatory such NRC staff determinations (whether contentions (as established in the notice proceeding. In particular, the request granting or denying access) is governed of hearing or opportunity for hearing), 3 must explain why publicly-available by 10 CFR 2.311. the petitioner may file its SUNSI versions of the information requested I. The Commission expects that the contentions by that later deadline. would not be sufficient to provide the NRC staff and presiding officers (and G. Review of Denials of Access. basis and specificity for a proffered any other reviewing officers) will contention; (1) If the request for access to SUNSI consider and resolve requests for access D. Based on an evaluation of the is denied by the NRC staff either after to SUNSI, and motions for protective information submitted under paragraph a determination on standing and need orders, in a timely fashion in order to C.(3) the NRC staff will determine for access, or after a determination on minimize any unnecessary delays in within 10 days of receipt of the request trustworthiness and reliability, the NRC identifying those petitioners who have whether: staff shall immediately notify the standing and who have propounded (1) There is a reasonable basis to requestor in writing, briefly stating the contentions meeting the specificity and believe the petitioner is likely to reason or reasons for the denial. basis requirements in 10 CFR Part 2. establish standing to participate in this (2) The requestor may challenge the Attachment 1 to this Order summarizes NRC proceeding; and NRC staff’s adverse determination by the general target schedule for (2) The requestor has established a filing a challenge within 5 days of processing and resolving requests under legitimate need for access to SUNSI. receipt of that determination with: these procedures. E. If the NRC staff determines that the (a) The presiding officer designated in It is so ordered. requestor satisfies both D.(1) and D.(2) this proceeding; (b) if no presiding above, the NRC staff will notify the officer has been appointed, the Chief Dated at Rockville, Maryland, this 1st day requestor in writing that access to Administrative Judge, or if he or she is of November 2010. SUNSI has been granted. The written unavailable, another administrative For the Commission. notification will contain instructions on judge, or an administrative law judge Annette L. Vietti-Cook, how the requestor may obtain copies of with jurisdiction pursuant to 10 CFR Secretary of the Commission.

ATTACHMENT 1—GENERAL TARGET SCHEDULE FOR PROCESSING AND RESOLVING REQUESTS FOR ACCESS TO SENSITIVE UNCLASSIFIED NON-SAFEGUARDS INFORMATION IN THIS PROCEEDING

Day Event/activity

0 ...... Publication of Federal Register notice of hearing and opportunity to petition for leave to intervene, including order with instructions for access requests. 10 ...... Deadline for submitting requests for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) with informa- tion: Supporting the standing of a potential party identified by name and address; describing the need for the informa- tion in order for the potential party to participate meaningfully in an adjudicatory proceeding. 60 ...... Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose for- mulation does not require access to SUNSI (+25 Answers to petition for intervention; +7 requestor/petitioner reply).

1 While a request for hearing or petition to 2 Any motion for Protective Order or draft Non- 3 Requestors should note that the filing intervene in this proceeding must comply with the Disclosure Affidavit or Agreement for SUNSI must requirements of the NRC’s E-Filing Rule (72 FR filing requirements of the NRC’s ‘‘E-Filing Rule,’’ the be filed with the presiding officer or the Chief 49139; August 28, 2007) apply to appeals of NRC initial request to access SUNSI under these Administrative Judge if the presiding officer has not staff determinations (because they must be served procedures should be submitted as described in this yet been designated, within 30 days of the deadline on a presiding officer or the Commission, as applicable), but not to the initial SUNSI request paragraph. for the receipt of the written access request. submitted to the NRC staff under these procedures.

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ATTACHMENT 1—GENERAL TARGET SCHEDULE FOR PROCESSING AND RESOLVING REQUESTS FOR ACCESS TO SENSITIVE UNCLASSIFIED NON-SAFEGUARDS INFORMATION IN THIS PROCEEDING—Continued

Day Event/activity

20 ...... Nuclear Regulatory Commission (NRC) staff informs the requestor of the staff’s determination whether the request for access provides a reasonable basis to believe standing can be established and shows need for SUNSI. (NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the re- lease of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff be- gins document processing (preparation of redactions or review of redacted documents). 25 ...... If NRC staff finds no ‘‘need’’ or no likelihood of standing, the deadline for requestor/petitioner to file a motion seeking a ruling to reverse the NRC staff’s denial of access; NRC staff files copy of access determination with the presiding offi- cer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds ‘‘need’’ for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff’s grant of access. 30 ...... Deadline for NRC staff reply to motions to reverse NRC staff determination(s). 40 ...... (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information proc- essing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI. A ...... If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for ac- cess to sensitive information (including schedule for providing access and submission of contentions) or decision re- versing a final adverse determination by the NRC staff. A + 3 ...... Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI consistent with decision issuing the protective order. A + 28 ...... Deadline for submission of contentions whose development depends upon access to SUNSI. However, if more than 25 days remain between the petitioner’s receipt of (or access to) the information and the deadline for filing all other con- tentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI conten- tions by that later deadline. A + 53 ...... (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI. A + 60 ...... (Answer receipt +7) Petitioner/Intervenor reply to answers. > A + 60 ...... Decision on contention admission.

[FR Doc. 2010–28129 Filed 11–8–10; 8:45 am] Week of December 6, 2010—Tentative 492–2230, TDD: 301–415–2100, or by BILLING CODE 7590–01–P There are no meetings scheduled for e-mail at [email protected]. the week of December 6, 2010. Determinations on requests for reasonable accommodation will be NUCLEAR REGULATORY Week of December 13, 2010—Tentative made on a case-by-case basis. COMMISSION Thursday, December 16, 2010. * * * * * This notice is distributed [NRC–2010–0002] 2 p.m. Briefing on Construction Reactor Oversight Program (cROP) electronically to subscribers. If you no Sunshine Federal Register Notice (Public Meeting). (Contact: Aida longer wish to receive it, or would like Rivera-Varona, 301–415–4001). to be added to the distribution, please AGENCY HOLDING THE MEETINGS: Nuclear This meeting will be Webcast live at contact the Office of the Secretary, Regulatory Commission. the Web address—http://www.nrc.gov. Washington, DC 20555 (301–415–1969), or send an e-mail to DATES: Weeks of November 8, 15, 22, 29, * * * * * [email protected]. December 6, 13, 2010. * The schedule for Commission meetings is subject to change on short Dated: November 4, 2010. PLACE: Commissioners’ Conference Room, 11555 Rockville Pike, Rockville, notice. To verify the status of meetings, Rochelle C. Bavol, Maryland. call (recording)—(301) 415–1292. Policy Coordinator, Office of the Secretary. Contact person for more information: [FR Doc. 2010–28393 Filed 11–5–10; 4:15 pm] STATUS: Public and Closed. Rochelle Bavol, (301) 415–1651. BILLING CODE 7590–01–P Week of November 8, 2010 * * * * * The NRC Commission Meeting There are no meetings scheduled for Schedule can be found on the Internet the week of November 8, 2010. NUCLEAR REGULATORY at: http://www.nrc.gov/about-nrc/policy- COMMISSION Week of November 15, 2010—Tentative making/schedule.html. Request for a License To Import There are no meetings scheduled for * * * * * Radioactive Waste the week of November 15, 2010. The NRC provides reasonable accommodation to individuals with Week of November 22, 2010—Tentative disabilities where appropriate. If you Pursuant to 10 CFR 110.70 (b) ‘‘Public need a reasonable accommodation to Notice of Receipt of an Application,’’ There are no meetings scheduled for participate in these public meetings, or please take notice that the Nuclear the week of November 22, 2010. need this meeting notice or the Regulatory Commission (NRC) has Week of November 29, 2010—Tentative transcript or other information from the received the following request for an public meetings in another format (e.g. import license. Copies of the request are Tuesday, November 30, 2010 braille, large print), please notify Angela available electronically through ADAMS 1 p.m. Briefing on Security Issues Bolduc, Chief, Employee/Labor and can be accessed through the Public (Closed—Ex. 1). Relations and Work Life Branch, at 301– Electronic Reading Room (PERR) link

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http://www.nrc.gov/reading-rm.html at A request for a hearing or petition for In addition to a request for hearing or the NRC Homepage. leave to intervene may be filed with the petition for leave to intervene, written A request for a hearing or petition for NRC electronically in accordance with comments, in accordance with 10 CFR leave to intervene may be filed within NRC’s E–Filing rule promulgated in 110.81, should be submitted within thirty days after publication of this August 2007, 72 FR 49139 (Aug. 28, thirty (30) days after publication of this notice in the Federal Register. Any 2007). Information about filing notice in the Federal Register to Office request for hearing or petition for leave electronically is available on the NRC’s of the Secretary, U.S. Nuclear to intervene shall be served by the public Web site at http://www.rnc.gov/ Regulatory Commission, Washington, requestor or petitioner upon the site-help/e-submittals.html. To ensure DC 20555, Attention: Rulemaking and applicant, the Office of the General timely electronic filing, at least 5 (five) Adjudications. Counsel, U.S. Nuclear Regulatory days prior to the filing deadline, the Commission, Washington, DC 20555; petitioner/requestor should contact the The information concerning this the Secretary, U.S. Nuclear Regulatory Office of the Secretary by e-mail at import license application follows. Commission, Washington, DC 20555; [email protected], or by NRC Import License Application and the Executive Secretary, U.S. calling (301) 415–1677, to request a Department of State, Washington, DC digital ID certificate and allow for the Description of Application 20520. creation of an electronic docket.

Name of applicant Date of application Material type Total quantity End use Country of origin Date received Application No. Docket No.

Oregon Specialty Radioactive Waste consisting of 186,000 kilograms of materials Return of U.S. origin metals to Canada Metals. contaminated mixed metals, fil- contaminated with 2.613 kilo- Alaron Corporation in Wam- (originally U.S.). August 30, 2010 ter cake, spent metal shot, grams of U–235 contained in pum, PA for processing and August 31, 2010 trash and protective clothing 58.575 kilograms uranium. then to Energy Solutions, LLC IW028 exported under NRC export li- site in Clive, Utah for manage- 11005875 censes XW003 and XW007. ment and disposal.

Dated this 26th day of October 2010 at DATES: The open portion of the RIAP In keeping with FACA procedures, Rockville, Maryland. meeting will be held on Monday, members of the public are invited to For the Nuclear Regulatory Commission. November 22, 2010, from 10 a.m. to provide comments to the RIAP. The Stephen Dembek, 3 p.m. preference of the RIAP is to have Acting Deputy Director, Office of ADDRESSES: The Ritz-Carlton, 2401 East members of the public provide written International Programs. Camelback Road, Phoenix, AZ 85016. comments addressing any of the matters [FR Doc. 2010–28258 Filed 11–8–10; 8:45 am] FOR FURTHER INFORMATION CONTACT: Glen listed above no later than November 12, BILLING CODE 7590–01–P Walker, Executive Director, Recovery 2010. There will be limited space for Independent Advisory Panel, 1717 this meeting; therefore, members of the Pennsylvania Avenue, NW., Suite 700, public who have submitted written Washington, DC 20006; Telephone 202– statements addressing matters outlined RECOVERY ACCOUNTABILITY AND 254–7900. above will be given priority in attending TRANSPARENCY BOARD SUPPLEMENTARY INFORMATION: Pursuant this meeting and speaking to the RIAP. Agenda and Notice of Partially Closed to Section 1543 of the Recovery Act, the The next highest priority for attending Meeting of the Recovery Independent RIAP is charged with making the meeting and speaking to the RIAP Advisory Panel recommendations to the Board on will be those individuals who have actions the Board could take to prevent signed up in advance by submitting AGENCY: Recovery Accountability and fraud, waste, and abuse of Recovery Act their names via e-mail to the RIAP in Transparency Board. funds. The purpose of the November 22, advance of the meeting. Members of the ACTION: Notice of partially closed 2010 meeting is to allow the RIAP to public who have submitted written meeting. have an open dialogue, with input from comments and/or who have signed up the public, on issues relating to fraud, in advance will be given priority to SUMMARY: In accordance with the waste, and abuse of Recovery Act funds. attend the meeting and be heard first in American Recovery and Reinvestment More specifically, the RIAP is interested the order in which their written Act of 2009, Public Law 111–5 in obtaining input regarding the statements and/or sign-up e-mails were (Recovery Act), and the Federal following matters: received. Other members of the public Advisory Committee Act of 1972 • Actions the Board can take to will be heard in the order in which they (FACA), the Recovery Accountability prevent fraud, waste, and abuse; sign up at the beginning of the meeting, and Transparency Board’s (Board) • Transparency of entitlements and space permitting. A time limit will be Recovery Independent Advisory Panel tax benefits funded by the Recovery Act; placed on those members of the public (RIAP) will meet as indicated below. • The public’s experience with wishing to speak at the meeting, with Notice of this meeting is required under obtaining information from time allocated in accordance with the Section 10(a)(2) of FACA. This notice is Recovery.gov and how that experience number of people who have signed up intended to notify the general public of can be improved; and indicating a desire to speak to the RIAP. their opportunity to attend the open • Random sampling as a tool for The RIAP will make every effort to hear portion of the meeting. detecting fraud, waste, and abuse. the views of all interested persons. The

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Chairperson of the RIAP is empowered change as described in Items I and II A. Self-Regulatory Organization’s to conduct the meeting in a fashion that below, which Items have been prepared Statement of the Purpose of, and the will, to the Chairperson’s judgment, by the Exchange. The Exchange has Statutory Basis for, the Proposed Rule facilitate the orderly conduct of designated the proposal as a ‘‘non- Change business. You may submit written controversial’’ proposed rule change 1. Purpose comments by mail to 1717 Pennsylvania pursuant to Section 19(b)(3)(A)(iii) of Rule 201 of Regulation SHO under the Avenue, NW., Suite 700, Washington, the Act 3 and Rule 19b–4(f)(6) Act 7 sets forth a short sale-related DC 20006. ‘‘RIAP comments’’ should be thereunder.4 The Commission is circuit breaker that, if triggered, will written on the envelope. Persons publishing this notice to solicit wishing to e-mail their written impose a restriction on the prices at comments on the proposed rule change which NMS stocks 8 may be sold short. comments and/or sign up in advance to from interested persons. speak to the RIAP at the meeting should In anticipation of the upcoming send their written comments and/or I. Self-Regulatory Organization’s November 10, 2010 compliance date for 9 names to [email protected] and write Statement of the Terms of Substance of Rule 201, the Exchange is proposing to ‘‘November 22, 2010 RIAP public the Proposed Rule Change amend CBSX’s rules to describe the comment’’ in the Subject line. manner in which the CBSX System will There will be a closed meeting, under The Exchange is proposing to amend handle short sell orders when a circuit the authority of Section 10(d) of FACA CBOE Stock Exchange, LLC’s (‘‘CBSX,’’ breaker is triggered under Rule 201 of and under exemption (7) of Section the CBOE’s stock trading facility) rules Regulation SHO. 552b(c) of the Government in the to describe the manner in which the In particular, the Exchange is Sunshine Act (Pub. L. 92–463), that will CBSX System 5 will handle short sell proposing to adopt Interpretation and be held prior to the open meeting from orders in relation to Rule 201 of Policy .02 to its Rule 51.8, Types of Orders Handled, to provide that orders 9 a.m. to 9:30 a.m. During the closed Regulation SHO,6 and CBOE’s rules to in equity securities that are submitted to portion of the meeting there will be a include order marking requirements for the CBSX System must be marked discussion that would disclose stock-option orders. The text of the investigative techniques and ‘‘long,’’ ‘‘short,’’ or ‘‘short exempt’’ in proposed rule change is available on the compliance with Regulation SHO.10 The procedures. A summary of the activities Exchange’s Web site (http:// at the closed session and related matters Interpretation and Policy will also www.cboe.org/Legal ), at the Exchange’s provide that, if a short sale-related which are informative to the public Office of the Secretary and at the consistent with the policy of 5 U.S.C. circuit breaker is triggered under Commission. Regulation SHO, orders marked ‘‘short’’ 552b(c) will be available to the public will be handled by the CBSX System as within fourteen days of the meeting. II. Self-Regulatory Organization’s follows: First, short sell orders that are Records will be kept of all RIAP Statement of the Purpose of, and resting in the CBSX Book 11 at the time proceedings and will be available for Statutory Basis for, the Proposed Rule a circuit breaker is triggered will be public inspection on http:// Change permitted to continue resting and/or www.recovery.gov. In its filing with the Commission, the execute. The Exchange believes this Ivan J. Flores, Exchange included statements handling of resting short sell orders is Paralegal Specialist, Recovery Accountability concerning the purpose of and basis for consistent with Rule 201 because resting and Transparency Board. orders by definition are priced above the the proposed rule change and discussed National Best Bid.12 Second, short sell [FR Doc. 2010–28243 Filed 11–8–10; 8:45 am] any comments it received on the BILLING CODE 6821–15–P orders that are received by the CBSX proposed rule change. The text of those System after the time a circuit breaker statements may be examined at the is triggered that are priced above the places specified in Item IV below. The SECURITIES AND EXCHANGE National Best Bid will be permitted to Exchange has prepared summaries, set COMMISSION rest and/or execute. The Exchange forth in sections A, B, and C below, of believes this handling of incoming short [Release No. 34–63235; File No. SR–CBOE– the most significant parts of such sell orders is consistent with Rule 201 2010–099] statements. because the orders are priced above the 13 Self-Regulatory Organizations; National Best Bid. Third, short sell 3 Chicago Board Options Exchange, 15 U.S.C. 78s(b)(3)(A)(iii). orders that are received by the CBSX 4 Incorporated; Notice of Filing and 17 CFR 240.19b–4(f)(6). System after the time a circuit breaker 5 The ‘‘CBSX System’’ means the electronic system is triggered that are priced at or below Immediate Effectiveness of Proposed which performs the functions set out in the CBSX Rule Change Related to Short Sell rules including controlling, monitoring, and 7 Id. Order Handling recording trading by CBSX Traders through CBSX 8 17 CFR 242.201(a)(1). Workstations and trading between CBSX Traders. 9 November 3, 2010. See supra note 6. See Rule 50.1(a). A ‘‘CBSX Trader’’ means an 10 17 CFR 242.200(g). Pursuant to Section 19(b)(1) of the individual who or organization which has the right 11 The ‘‘CBSX Book’’ means all unexecuted orders Securities Exchange Act of 1934 (the to trade on CBSX. See Rules 50.1(f) and 50.3. A currently held by the CBSX System. See Rule ‘‘Act’’),1 and Rule 19b–4 thereunder,2 ‘‘CBSX Workstation’’ means a computer connected 50.1(c). The Exchange notes that additional size notice is hereby given that on October to CBSX for the purposes of trading pursuant to the cannot be added to an order resting in the CBSX CBSX rules. See Rule 50.1(d). Book. The Exchange also notes that it currently 26, 2010, the Chicago Board Options does not make available any resting order types that 6 17 CFR 242.201. See Securities Exchange Act Exchange, Incorporated (‘‘Exchange’’ or are to be completely un-displayed in the CBSX ‘‘CBOE’’) filed with the Securities and Release No. 61595 (February 26, 2010), 75 FR 11232 Book. To the extent the Exchange may determine (March 10, 2010). In connection with the adoption Exchange Commission (the to make available such an un-displayed resting of Rule 201, Rule 200(g) of Regulation SHO, 17 CFR order type, it would be subject to a rule filing ‘‘Commission’’) the proposed rule 242.200(g), was amended to include a ‘‘short submitted pursuant to Section 19(b) of the Act, 15 exempt’’ marking requirement. The amendments to U.S.C. 78s(b). 1 15 U.S.C. 78s(b)(1). Rule 201 and Rule 200(g) have a compliance date 12 17 CFR 242.201(b)(1). 2 17 CFR 240.19b–4. of November 10, 2010. 13 Id.

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the National Best Bid will be rejected/ The Exchange is also proposing to C. Self-Regulatory Organization’s cancelled by the CBSX System. The amend Interpretation and Policy .06 to Statement on Comments on the Exchange believes this handling of its Rule 6.53C, Complex Orders on the Proposed Rule Change Received From incoming short sell orders is consistent Hybrid System, to include an order Members, Participants, or Others with Rule 201 because the orders are not marking requirement for stock-option priced above the National Best Bid.14 orders. In particular, the Exchange is The Exchange neither solicited nor The Exchange notes that, under these proposing to provide that, if the stock received comments on the proposal. 15 procedures, a reserve sell order that is leg of a stock-option order submitted to ‘‘ ’’ III. Date of Effectiveness of the marked short will be handled the CBOE’s electronic complex order book same as any other sell order marked Proposed Rule Change and Timing for (referred to in the rules as ‘‘COB’’) 18 or ‘‘short.’’ Thus, an incoming reserve sell Commission Action electronic complex order request for order that is received by the CBSX Because the foregoing proposed rule System after the time a circuit breaker response auction (referred to in the rules 19 change does not: (1) Significantly affect is triggered that is marked ‘‘short’’ and as ‘‘COA’’) is a sell order, then the stock leg must be marked ‘‘long, ‘‘short,’’ the protection of investors or the public that is priced at or below the National interest; (2) impose any significant Best Bid will be rejected/cancelled by or ‘‘short exempt’’ in compliance with 20 burden on competition; and (3) become the CBSX System. An incoming reserve Regulation SHO. operative for 30 days from the date on sell order that is received by the CBSX Finally, the Exchange is proposing to which it was filed, or such shorter time System after the time a circuit breaker make non-substantive technical updates as the Commission may designate if is triggered that is marked ‘‘short’’ and to its Rule 53.5, ‘‘Long’’ and ‘‘Short’’ that is priced above the National Best consistent with the protection of Sales. In particular, the Exchange is investors and the public interest, it has Bid will be permitted to rest and/or proposing to change the title of the rule execute. The Exchange also notes that become effective pursuant to Section to ‘‘‘Long,’ ‘Short’ and ‘Short Exempt’ 23 the entire size of a reserve sell order that 19(b)(3)(A) of the Act and Rule 19b– Sales’’ and to delete an outdated 4(f)(6) thereunder.24 is marked ‘‘short’’ and resting in the reference to SEC Rule 10a–1 (which no CBSX Book—both the displayed portion longer exists and has been superseded A proposed rule change filed under and the reserve portion at the same by Regulation SHO). Rule 19b-4(f)(6) normally may not price that is not displayed—will be become operative prior to 30 days after permitted to rest and/or execute. This 2. Statutory Basis the date of filing.25 However, Rule 19b– handling will apply to reserve orders 4(f)(6) 26 permits the Commission to resting in the CBSX Book at the time a The Exchange believes the proposed designate a shorter time if such action circuit breaker is triggered or to rule change is consistent with Section 21 is consistent with the protection of incoming reserve orders that rest in the 6(b) of the Act, in general, and, in investors and the public interest. The CBSX Book after a circuit breaker is particular, furthers the objectives of Exchange has requested that the 22 triggered. The Exchange believes this Section 6(b)(5) of the Act, which Commission waive the 30-day operative handling of reserve orders marked requires that an exchange have rules delay to allow updating of its rules ‘‘short’’ is consistent with Rule 201 that are designed to promote just and before the November 10, 2010 because resting reserve orders that are equitable principles of trade and, in compliance date of the amendments to marked ‘‘short’’ by definition are priced general, to protect investors and the Rule 200(g) and 201 of Regulation above the National Best Bid at the time public interest. In particular, the SHO 27 and thereby provide clarity on 16 of initial display. Exchange believes the proposed change the short sell order handling procedures Sell orders marked ‘‘short exempt’’ will provide clarity on the short sell that the CBSX System will apply when will be permitted to rest and/or execute order handling procedures that the a short sale-related circuit breaker is without regard to when the order is CBSX System will apply when a short triggered under Rule 201 of Regulation received or whether the order is priced sale-related circuit breaker is triggered above, at or below the National Best Bid. SHO. The Commission believes that under Rule 201 of Regulation SHO in a waiving the 30-day operative delay is This handling of sell orders marked manner that the Exchange believes is ‘‘short exempt’’ would be applied by the consistent with the protection of consistent with Regulation SHO. CBSX System at all times—without investors and the public interest regard to whether a circuit breaker is B. Self-Regulatory Organization’s because the waiver will provide clarity triggered. The Exchange believes this Statement on Burden on Competition to market participants that trade on handling by CBSX of sell orders marked CBSX System on the handling of certain ‘‘short exempt’’ is consistent with Rule CBOE does not believe that the orders in light of the amendments to 201, which permits the execution or proposed rule change will impose any Regulation SHO.28 The Commission display of a short sell order in an NMS burden on competition that is not also believes that the proposed rule stock marked ‘‘short exempt’’ without necessary or appropriate in furtherance change does not raise any new or novel regard to whether the order is at a price of the purposes of the Act. issues. Accordingly, the Commission that is less than or equal to the current designates the proposed rule change National Best Bid.17 23 15 U.S.C. 78s(b)(3)(A). 14 Id. a broker or dealer may mark a sell order ‘‘short 24 17 CFR 240.19b–4(f)(6). In addition, CBOE has 15 A ‘‘reserve order’’ is a limit order with a portion exempt’’ only if the provisions of Rule 242.201(c) given the Commission written notice of its intent of the size that is to be displayed and with a reserve or (d) are met. See Rule 200(g)(2) of Regulation to file the proposed rule change, along with a brief portion of the size at the same price that is not to SHO, 17 CFR 242.200(g)(2). description and text of the proposed rule change, at least five business days prior to the date on be displayed, but is to be used to refresh the 18 See Rule 6.53C(c). which the Exchange filed the proposed rule change. displayed size when the displayed size is executed 19 in full. See Rule 51.8(o). See Rule 6.53C(d). 25 17 CFR 240.19b–4(f)(6)(iii). 20 16 17 CFR 242.201(b)(1)(iii)(A). 17 CFR 242.200(g). 26 Id. 17 See Rule 201(b)(1)(iii)(B) of Regulation SHO, 17 21 15 U.S.C. 78f(b). 27 17 CFR 242.200(g); 17 CFR 242.201. CFR 242.201(b)(1)(iii)(B). The Exchange notes that 22 15 U.S.C. 78f(b)(5). 28 Id.

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operative upon filing with the copying at the principal office of the rule change is available on the Commission.29 CBOE. All comments received will be Exchange’s Web site (http:// At any time within 60 days of the posted without change; the Commission www.cboe.org/legal/ filing of such proposed rule change, the does not edit personal identifying crclc2rulefiling.aspx), at the Exchange’s Commission summarily may information from submissions. You Office of the Secretary, and at the temporarily suspend such rule change if should submit only information that Commission’s Public Reference Room. you wish to make available publicly. All it appears to the Commission that such II. Self-Regulatory Organization’s submissions should refer to File action is necessary or appropriate in the Statement of the Purpose of, and Number SR–CBOE–2010–099 and public interest, for the protection of Statutory Basis for, the Proposed Rule investors, or otherwise in furtherance of should be submitted on or before Change the purposes of the Act. November 30, 2010 in the Federal Register. In its filing with the Commission, the IV. Solicitation of Comments self-regulatory organization included For the Commission, by the Division of Interested persons are invited to Trading and Markets, pursuant to delegated statements concerning the purpose of submit written data, views, and authority.30 and basis for the proposed rule change arguments concerning the foregoing, Florence E. Harmon, and discussed any comments it received on the proposed rule change. The text including whether the proposed rule Deputy Secretary. of those statements may be examined at change is consistent with the Act. [FR Doc. 2010–28244 Filed 11–8–10; 8:45 am] Comments may be submitted by any of the places specified in Item IV below. BILLING CODE 8011–01–P the following methods: The Exchange has prepared summaries, set forth in Sections A, B, and C below, Electronic Comments of the most significant parts of such SECURITIES AND EXCHANGE • statements. Use the Commission’s Internet COMMISSION comment form (http://www.sec.gov/ A. Self-Regulatory Organization’s [Release No. 34–63238; File No. SR–C2– rules/sro.shtml ); or Statement of the Purpose of, and the • 2010–008] Send an e-mail to rule- Statutory Basis for, the Proposed Rule [email protected]. Please include File Self-Regulatory Organizations; C2 Change Number SR–CBOE–2010–099 on the Options Exchange, Incorporated; 1. Purpose subject line. Notice of Filing and Immediate Paper Comments Effectiveness of a Proposed Rule In 2009, C2 was registered as a Change to Update Rules Based on national securities exchange under • Send paper comments in triplicate 5 Chicago Board Options Exchange, Inc. Section 6 of the Exchange Act. C2 is to Elizabeth M. Murphy, Secretary, Rules and Recent Chicago Board anticipated to launch on October 29, Securities and Exchange Commission, Options Exchange, Inc. Rule Filings 2010. The purpose of this filing is to 100 F Street, NE., Washington, DC update the C2 rules based on rules and 20549–1090. November 3, 2010. recent rule filings of CBOE. All submissions should refer to File Pursuant to Section 19(b)(1) of the First, C2 proposes to delete the Number SR–CBOE–2010–099. This file Securities Exchange Act of 1934 (the definition of ‘‘Short Term Option’’ from number should be included on the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Rule 1.1. The definition is not used subject line if e-mail is used. To help the notice is hereby given that on October elsewhere in the C2 Rules and is Commission process and review your 29, 2010, C2 Options Exchange, superfluous and unnecessary. The comments more efficiently, please use Incorporated (the ‘‘Exchange’’ or ‘‘C2’’) Exchange notes that CBOE Chapter V only one method. The Commission will filed with the Securities and Exchange (specifically Rule 5.5(d)), which is post all comments on the Commission’s Commission (the ‘‘Commission’’) the incorporated by reference into Chapter Internet Web site (http://www.sec.gov/ proposed rule change as described in V of the C2 Rules, defines ‘‘Short Term rules/sro.shtml). Copies of the Items I and II below, which Items have Option Series.’’ submission, all subsequent been prepared by the Exchange. The Second, C2 proposes to adopt Rule amendments, all written statements Exchange filed the proposal as a ‘‘non- 3.13, Educational Classes, which would with respect to the proposed rule controversial’’ proposed rule change require Trading Permit Holders (‘‘TPHs’’) change that are filed with the pursuant to Section 19(b)(3)(A)(iii) of and persons associated with TPHs to Commission, and all written the Act 3 and Rule 19b–4(f)(6) attend such educational classes as C2 communications relating to the thereunder.4 The Commission is may require from time to time. The proposed rule change between the publishing this notice to solicit proposed rule would also provide that Commission and any person, other than comments on the proposed rule change failure to attend C2 mandated those that may be withheld from the from interested persons. continuing educational classes may subject TPHs and associated persons to public in accordance with the I. Self-Regulatory Organization’s provisions of 5 U.S.C. 552, will be sanctions under the Exchange’s Minor Statement of the Terms of Substance of Rule Violation Plan. Any action taken available for Web site viewing and the Proposed Rule Change printing in the Commission’s Public by the Exchange would not preclude Reference Room, 100 F Street, NE., C2 proposes to update its rules based further disciplinary action under C2 Washington, DC 20549, on official on Chicago Board Options Exchange, Rules. Proposed C2 Rule 3.13 is similar business days between the hours of 10 Inc. (‘‘CBOE’’) rules and recent CBOE to existing CBOE Rule 6.20(e). a.m. and 3 p.m. Copies of such filing rule filings. The text of the proposed Third, C2 proposes to add Rule 6.17, also will be available for inspection and Price Check Parameters. Under the 30 17 CFR 200.30–3(a)(12). proposed rule, C2 would not 1 29 For purposes only of waiving the 30-day 15 U.S.C. 78s(b)(1). automatically execute eligible orders operative delay, the Commission has considered the 2 17 CFR 240.19b–4. proposed rule’s impact on efficiency, competition, 3 15 U.S.C. 78s(b)(3)(A)(iii). 5 See Exchange Act Release No. 61152 (Dec. 10, and capital formation. See 15 U.S.C. 78c(f). 4 17 CFR 240.19b–4(f)(6). 2009), 74 FR 66699 (Dec. 16, 2009).

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that are marketable if (1) the width purchase or a writing transaction, (9) impediments to and to perfect the between the national best bid and except for a transaction executed by or mechanism for a free and open market national best offer is not within an for a Market-Maker, whether an opening and a national market system, and, in acceptable price range (as determined or closing transaction, (10) the identity general, to protect investors and the by the Exchange on a series by series of the account of the Clearing public interest. Updating the C2 rules to basis for market orders and/or Participant in which the transaction was keep them in line with those of CBOE marketable limit orders and announced effected, (11) the time of purchase or (as relevant) provides for consistency in to TPHs via Regulatory Circular), or (2) sale, (12) whether a put or call, and (13) rules. the execution would follow an initial such other information as may be partial execution on the Exchange and required by the Exchange. Proposed B. Self-Regulatory Organization’s would be at a subsequent price that is Rule 6.37 is similar to existing CBOE Statement on Burden on Competition not within an acceptable tick distance Rule 6.51(d), except that trade C2 does not believe that the proposed from the initial execution (as information in the CBOE rule related to rule change will impose any burden on determined by the Exchange on a series the reporting of open outcry competition not necessary or by series and premium basis for market transactions has not been incorporated. appropriate in furtherance of the orders and/or marketable limit orders Fifth, C2 proposes to amend Rule purposes of the Act. and announced to TPHs via Regulatory 6.51, Automated Improvement Circular). Mechanism (‘‘AIM’’), to extend until July C. Self-Regulatory Organization’s For purposes of the proposed rule, an 18, 2011 the Pilot Period during which Statement on Comments on the ‘‘acceptable price range’’ (‘‘APR’’) shall be there will be no minimum size Proposed Rule Change Received From determined by the Exchange on a class- requirement for orders to be eligible for Members, Participants, or Others by-class basis and shall be no less than: the AIM auction. This proposed No written comments were solicited $0.375 between the bid and offer for amendment to extend the pilot program or received with respect to the proposed each option contract for which the bid is based on a recent CBOE rule filing.6 rule change. is less than $2, $0.60 where the bid is Lastly, C2 also proposes to amend at least $2 but does not exceed $5, $0.75 Chapter 24, Index Options. Chapter 24 III. Date of Effectiveness of the where the bid is more than $5 but does of the C2 rules incorporates by reference Proposed Rule Change and Timing for not exceed $10, $1.20 where the bid is CBOE Chapter XXIV, with the exception Commission Action more than $10 but does not exceed $20, of certain specified rules contained in Because the foregoing proposed rule and $1.50 where the bid is more than CBOE Chapter XXIV. C2 proposes to change: (1) Does not significantly affect $20. An ‘‘acceptable tick distance’’ amend the list of excepted rules in two the protection of investors or the public (‘‘ATD’’) shall be no less than 2 respects. We are inserting a reference to interest; (2) does not impose any minimum increment ticks. Under the provide that CBOE Rule 24.15, significant burden on competition; and proposed rule, the senior official in the Automatic Execution of Index Options, (3) by its terms does not become C2 Help Desk may grant intra-day relief does not apply to C2. CBOE Rule 24.15 operative for 30 days after the date of by widening the APR and ATD for one addresses the applicability of certain this filing, or such shorter time as the or more option series. Notification of CBOE automatic execution rules to Commission may designate if consistent intra-day relief will be announced via index options. The rules are with the protection of investors and the electronic message to TPHs that request inapplicable to the operations of C2, and public interest, the proposed rule to receive such messages. If an thus the rule itself should not apply to change has become effective pursuant to execution is suspended because the C2. We are also deleting a reference to Section 19(b)(3)(A) of the Act 10 and APR has not been met, the order will be CBOE Rule 24.16, Nullification and Rule 19b–4(f)(6) thereunder.11 Adjustment of Transactions in Index cancelled. If an execution is suspended A proposed rule change filed under Options, Options on ETFs, and Options because executing the remaining portion Rule 19b–4(f)(6) normally does not on HOLDRS, because that rule has been of an order would exceed the ATD, then become operative for 30 days after the deleted from the CBOE rules and thus such remaining portion will be date of filing. However, Rule 19b– the cross-reference is outdated and no cancelled. 4(f)(6)(iii) permits the Commission to Proposed Rule 6.17 is similar to longer necessary. designate a shorter time if such action existing CBOE Rule 6.13(b)(vi), except 2. Statutory Basis is consistent with the protection of that provisions in the CBOE rule related investors and the public interest. The to the handling of orders in open outcry The Exchange believes the proposed Exchange requests that the Commission have not been incorporated. rule change is consistent with the Fourth, C2 proposes to adopt Rule Securities Exchange Act of 1934 (the waive the 30-day operative delay, as 12 6.37, Reporting of Trade Information, to ‘‘Act’’) 7 and the rules and regulations specified in Rule 19b–4(f)(6)(iii), require TPHs to file with the Exchange thereunder and, in particular, the which would make the rule change trade information in such form as may requirements of Section 6(b) of the Act.8 effective and operative upon filing. The be prescribed by the Exchange covering Specifically, the Exchange believes the Commission believes that waiving the each Exchange transaction during each proposed rule change is consistent with 30-day operative delay is consistent business day in order to allow the the Section 6(b)(5) 9 requirements that with the protection of investors and the Exchange to properly match and clear the rules of an exchange be designed to trades. The trade information shall show promote just and equitable principles of 10 15 U.S.C. 78s(b)(3)(A). for each transaction (1) The identity of trade, to prevent fraudulent and 11 17 CFR 240.19b–4(f)(6). In addition, Rule 19b- manipulative acts, to remove 4(f)(6)(iii) requires a self-regulatory organization to the Clearing Participant, (2) the provide the Commission with written notice of its underlying security, (3) the exercise intent to file the proposed rule change, along with price, (4) the expiration month, (5) the 6 See Securities Exchange Act Release No. 34–62– a brief description and text of the proposed rule number of option contracts, (6) the 522 (July 16, 2010), 75 FR 43596 (July 26, 2010) change, at least five business days prior to the date (SR–CBOE–2010–067). of filing of the proposed rule change, or such premium per unit, (7) the identity of the 7 15 U.S.C. 78s(b)(1). shorter time as designated by the Commission. C2 executing broker representing the 8 15 U.S.C. 78f(b). has satisfied this requirement. Clearing Participants, (8) whether a 9 15 U.S.C. 78f(b)(5). 12 17 CFR 240.19b–4(f)(6)(iii).

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public interest.13 The Commission notes Reference Room, 100 F Street, NE., Proposed new language is in italics; that the proposal is designed to conform Washington, DC 20549, on official proposed deletions are in [brackets].3 C2’s rules to the rules of the CBOE, and business days between the hours of 10 IM–5101–2. Listing of Companies Whose does not raise any new regulatory a.m. and 3 p.m. Copies of the filing also Business Plan is to Complete One or More issues. For these reasons, the will be available for inspection and Acquisitions Commission designates the proposed copying at the principal office of the Generally, Nasdaq will not permit the rule change as operative upon filing. Exchange. All comments received will initial or continued listing of a Company that At any time within 60 days of the be posted without change; the has no specific business plan or that has filing of the proposed rule change, the Commission does not edit personal indicated that its business plan is to engage Commission summarily may identifying information from in a merger or acquisition with an temporarily suspend such rule change if submissions. You should submit only unidentified company or companies. it appears to the Commission that such information that you wish to make However, in the case of a Company whose action is necessary or appropriate in the available publicly. All submissions business plan is to complete an initial public offering and engage in a merger or acquisition public interest, for the protection of should refer to File Number SR–C2– investors, or otherwise in furtherance of with one or more unidentified companies 2010–008 and should be submitted on within a specific period of time, Nasdaq will the purposes of the Act. or before November 30, 2010 in the permit the listing if the Company meets all IV. Solicitation of Comments Federal Register. applicable initial listing requirements, as For the Commission, by the Division of well as the conditions described below. Interested persons are invited to (a)–(c) No change. submit written data, views, and Trading and Markets, pursuant to delegated authority.14 (d) Until the Company has satisfied the arguments concerning the foregoing, condition in paragraph (b) above, if the including whether the proposed rule Florence E. Harmon, Company holds a shareholder vote on a change is consistent with the Act. Deputy Secretary. business combination for which the Comments may be submitted by any of [FR Doc. 2010–28246 Filed 11–8–10; 8:45 am] Company must file and furnish a proxy or information statement subject to Regulation the following methods: BILLING CODE 8011–01–P 14A or 14C under the Act in advance of the Electronic Comments shareholder meeting, the[each] business • SECURITIES AND EXCHANGE combination must be approved by a majority Use the Commission’s Internet of the shares of common stock voting at the comment form (http://www.sec.gov/ COMMISSION meeting at which the combination is being rules/sro.shtml); or • considered. If a shareholder vote on the Send an e-mail to rule- [Release No. 34–63239; File No. SR– business combination is held, [email protected]. Please include File NASDAQ–2010–137] [(e) Until the Company has satisfied the Number SR–C2–2010–008 on the condition in paragraph (b) above,] public subject line. Self-Regulatory Organizations; The Shareholders voting against a business combination must have the right to convert Paper Comments NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change To their shares of common stock into a pro rata • Send paper comments in triplicate Amend IM–5101–2 To Provide share of the aggregate amount then in the to Elizabeth M. Murphy, Secretary, deposit account (net of taxes payable and Acquisition Companies the Option To amounts distributed to management for Securities and Exchange Commission, Hold a Tender Offer in Lieu of a 100 F Street, NE., Washington, DC working capital purposes) if the business Shareholder Vote on a Proposed combination is approved and consummated. 20549–1090. Acquisition A Company may establish a limit (set no All submissions should refer to File lower than 10% of the shares sold in the IPO) Number SR–C2–2010–008. This file November 3, 2010. as to the maximum number of shares with number should be included on the Pursuant to Section 19(b)(1) of the respect to which any Shareholder, together subject line if e-mail is used. To help the Securities Exchange Act of 1934 with any affiliate of such Shareholder or any Commission process and review your (‘‘Act’’),1 and Rule 19b–4 thereunder,2 person with whom such shareholder is acting ‘‘ ’’ comments more efficiently, please use notice is hereby given that on October as a group (as such term is used in Sections only one method. The Commission will 13(d) and 14(d) of the Act), may exercise 22, 2010, The NASDAQ Stock Market such conversion rights. For purposes of this post all comments on the Commission’s LLC (‘‘Nasdaq’’) filed with the Securities paragraph [(e)] (d), public Shareholder Internet Web site (http://www.sec.gov/ and Exchange Commission excludes officers and directors of the rules/sro.shtml). Copies of the (‘‘Commission’’) the proposed rule Company, the Company’s sponsor, the submission, all subsequent change as described in Items I and II founding Shareholders of the Company, and amendments, all written statements below, which Items have been prepared any Family Member or affiliate of any of the with respect to the proposed rule by Nasdaq. The Commission is foregoing persons, or the beneficial holder of change that are filed with the publishing this notice to solicit more than 10% of the total shares Commission, and all written comments on the proposed rule change outstanding. communications relating to the Until the Company completes a business from interested persons. combination where all conditions in proposed rule change between the I. Self-Regulatory Organization’s paragraph (b) above are met, the Company Commission and any person, other than must notify Nasdaq on the appropriate form those that may be withheld from the Statement of the Terms of the Substance of the Proposed Rule Change about each proposed business combination. public in accordance with the Following each business combination, the provisions of 5 U.S.C. 552, will be Nasdaq proposes to provide combined Company must meet the available for Web site viewing and acquisition companies an option to hold requirements for initial listing. If the printing in the Commission’s Public a tender offer in lieu of a shareholder Company does not meet the requirements for initial listing following a business vote on a proposed acquisition. 13 For purposes only of waiving the 30-day combination or does not comply with one of operative delay, the Commission has also considered the proposed rule’s impact on 14 17 CFR 200.30–3(a)(12). 3 Changes are marked to the rule text that appears efficiency, competition, and capital formation. See 1 15 U.S.C. 78s(b)(1). in the electronic manual of Nasdaq found at 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. http://nasdaqomx.cchwallstreet.com.

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the requirements set forth above, Nasdaq will requirements included additional believes that the protections provided issue a Staff Delisting Determination under protections designed to protect investors by the existing rule would continue to Rule 5810 to delist the Company’s securities. from certain risks unique to this type of be available. Further, this tender offer (e) Until the Company has satisfied the company, including that the Acquisition condition in paragraph (b) above, if a alternative would help prevent shareholder vote on the business Company obtain a vote of shareholders shareholders who support the combination is not held for which the prior to consummating any acquisition acquisition and elect to retain their Company must file and furnish a proxy or and offer shareholders voting against the shares from being denied the benefits of information statement subject to Regulation acquisition the ability to redeem their the transaction by the actions of the 14A or 14C under the Act, the Company must shares in exchange for a pro rata share activist investors. Accordingly, Nasdaq provide all Shareholders with the of the cash held by the Acquisition proposes to modify IM–5201–2 to allow opportunity to redeem all their shares for Company.5 Similar protections have an Acquisition Company to conduct a cash equal to their pro rata share of the been voluntarily adopted by other aggregate amount then in the deposit account tender offer for all shares of all (net of taxes payable and amounts Acquisition Companies that have not Shareholders 6 in exchange for a pro rata distributed to management for working listed on Nasdaq. share of the cash held in trust by the capital purposes), pursuant to Rule 13e–4 As a result of the required vote, in a Acquisition Company in compliance and Regulation 14E under the Act, which number of cases, hedge funds and other with Rule 13e–4 and Regulation 14E regulate issuer tender offers. The Company activist investors acquired an interest in under the Act instead of soliciting a must file tender offer documents with the an Acquisition Company and used their shareholder vote. Commission containing substantially the ability to vote against a proposed In addition, the proposed rule change same financial and other information about acquisition as leverage to obtain the business combination and the would require an Acquisition Company additional consideration not available to redemption rights as would be required that is not subject to the Commission’s under Regulation 14A of the Act, which other shareholders. For example, they may negotiate the sale of their stake to proxy rules to conduct a tender offer for regulates the solicitation of proxies. Until the shares in exchange for a pro rata share Company completes a business combination an affiliate of the Acquisition where all conditions in paragraph (b) above Company’s management for a price of the cash held in trust by the are met, the Company must notify Nasdaq on higher than their pro rata share of the Acquisition Company in compliance the appropriate form about each proposed deposit account. In other cases, the with Rule 13e–4 and Regulation 14E business combination. Following each withheld votes caused the proposed under the Act and provide information business combination, the combined acquisition to fail altogether. In order to similar to that required by the Company must meet the requirements for Commission’s proxy rules, even if the initial listing. If the Company does not meet prevent this type of ‘‘greenmail,’’ recent Acquisition Companies, which went Acquisition Company seeks a the requirements for initial listing following shareholder vote. This change will a business combination or does not comply public and did not list on an exchange, with one of the requirements set forth above, adopted a modified structure under assure that investors, in all cases, get Nasdaq will issue a Staff Delisting which they would not seek a vote on the comparable information about the Determination under Rule 5810 to delist the acquisition, unless otherwise required proposed transaction. Company’s securities. by law. Instead, these Acquisition Last, Nasdaq is amending paragraph * * * * * Companies would conduct a (d) of IM–5101–2 to include within the II. Self-Regulatory Organization’s redemption offer pursuant to Rule 13e– definition of ‘‘public Shareholder,’’ for Statement of the Purpose of, and 4 and Regulation 14E under the Act purposes of the paragraph, the Statutory Basis for, the Proposed Rule after the public announcement and prior beneficial holder of more than 10% of Change to the completion of the business the total shares outstanding. The term combination, enabling shareholders ‘‘public Shareholder’’ was meant to In its filing with the Commission, who are opposed to the transaction to closely mirror the defined term ‘‘Public Nasdaq included statements concerning tender their shares in exchange for a pro Holders,’’ but to also include the purpose of and basis for the rata share of the cash held by the Acquisition Company-specific proposed rule change and discussed any Acquisition Company. This is the same classifications as well. Public Holders is comments it received on the proposed outcome available to public defined by the Listing Rules as holders rule change. The text of these statements Shareholders who vote against the of a security that includes both may be examined at the places specified acquisition pursuant to Nasdaq’s beneficial holders and holders of record, in Item IV below. Nasdaq has prepared existing rule. but does not include any holder who is, summaries, set forth in Sections A, B, Under this new alternative, either directly or indirectly, an and C below, of the most significant shareholders would still maintain the Executive Officer, director, or the aspects of such statements. ability to ‘‘vote with their feet’’ if they beneficial holder of more than 10% of A. Self-Regulatory Organization’s oppose a proposed transaction and the total shares outstanding.7 Statement of the Purpose of, and would, as just noted, also obtain their Accordingly, Nasdaq is making the rule Statutory Basis for, the Proposed Rule pro rata share of the Acquisition clear by adding language consistent Change Company’s cash through the tender offer with the definition of Public Holders. pursuant to Rule 13e–4 and Regulation 1. Purpose 14E under the Act. As such, Nasdaq 2. Statutory Basis In March 2009, Nasdaq adopted rules 5 Nasdaq believes that the proposed to permit the listing of companies The Listing Rules also require that at least 90% rule change is consistent with the whose business plan was to complete an of the gross proceeds from the SPAC’s initial public offering and any concurrent sale of equity securities provisions of Section 6 of the Act,8 in initial public offering and engage in a must be deposited in a trust account; that within general and with Section 6(b)(5) of the merger or acquisition with one or more 36 months of the effectiveness of the SPAC’s IPO unidentified companies within a registration statement, the SPAC must complete one or more business combinations having an aggregate 6 The term ‘‘Shareholder’’ is defined broadly by specific period of time (‘‘Acquisition Rule 5005(a)(37) as ‘‘a record or beneficial owner of 4 fair market value of at least 80% of the value of the Companies’’ or ‘‘SPACs’’). These listing deposit account; and, that each business a security listed or applying to list.’’ combination must be approved by a majority of the 7 Rule 5005(a)(34). 4 IM–5101–2. SPAC’s independent directors. 8 15 U.S.C. 78f.

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Act,9 in particular in that it is designed Electronic Comments SMALL BUSINESS ADMINISTRATION to prevent fraudulent and manipulative • [Disaster Declaration #12353 and #12354] acts and practices, to promote just and Use the Commission’s Internet comment form (http://www.sec.gov/ equitable principles of trade, to foster North Carolina Disaster Number NC– rules/sro.shtml); or cooperation and coordination with 00030 persons engaged in regulating, clearing, • Send an e-mail to rule- settling, processing information with [email protected]. Please include File AGENCY: U.S. Small Business respect to, and facilitating transactions Number SR–NASDAQ–2010–137 on the Administration. in securities, to remove impediments to subject line. ACTION: Amendment 2. and perfect the mechanism of a free and open market and a national market Paper Comments SUMMARY: This is an amendment of the system, and, in general, to protect Presidential declaration of a major • Send paper comments in triplicate investors and the public interest. The disaster for the State of North Carolina to Elizabeth M. Murphy, Secretary, proposed rule change is consistent with (FEMA–1942–DR), dated 10/14/2010. Securities and Exchange Commission, these requirements in that it provides an Incident: Severe Storms, Flooding, alternative mechanism for an 100 F Street, NE., Washington, DC and Straight-line Winds associated with acquisition vehicle to complete a 20549–1090. remnants of Tropical Storm Nicole. transaction in a manner that minimizes All submissions should refer to File Incident Period: 09/27/2010 through the disruptive effect of certain Number SR–NASDAQ–2010–137. This 10/01/2010. shareholders, while maintaining file number should be included on the DATES: Effective Date: 11/01/2010. protections which are designed to subject line if e-mail is used. To help the Physical Loan Application Deadline protect investors and the public interest Commission process and review your Date: 12/13/2010. and prevent fraudulent and comments more efficiently, please use EIDL Loan Application Deadline Date: 07/14/2011. manipulative acts and practices. only one method. The Commission will ADDRESSES: Submit completed loan B. Self-Regulatory Organization’s post all comments on the Commission’s applications to: U.S. Small Business Statement on Burden on Competition Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the Administration, Processing and Nasdaq does not believe that the submission, all subsequent Disbursement Center, 14925 Kingsport proposed rule change will result in any amendments, all written statements Road, Fort Worth, TX 76155. burden on competition that is not with respect to the proposed rule FOR FURTHER INFORMATION CONTACT: A. necessary or appropriate in furtherance change that are filed with the Escobar, Office of Disaster Assistance, of the purposes of the Act, as amended. Commission, and all written U.S. Small Business Administration, C. Self-Regulatory Organization’s communications relating to the 409 3rd Street, SW., Suite 6050, Statement on Comments on the proposed rule change between the Washington, DC 20416. Proposed Rule Change Received From Commission and any person, other than SUPPLEMENTARY INFORMATION: The notice Members, Participants, or Others those that may be withheld from the of the Presidential disaster declaration public in accordance with the for the State of North Carolina, dated Written comments were neither 10/14/2010 is hereby amended to solicited nor received. provisions of 5 U.S.C. 552, will be available for Web site viewing and include the following areas as adversely III. Date of Effectiveness of the printing in the Commission’s Public affected by the disaster: Proposed Rule Change and Timing for Reference Room, 100 F Street, NE., Primary Counties: (Physical Damage Commission Action Washington, DC 20549, on official and Economic Injury Loans): Camden, Within 45 days of the date of business days between the hours of Martin, New Hanover, Washington. publication of this notice in the Federal 10 a.m. and 3 p.m. Copies of such filing Contiguous Counties: (Physical Damage Register or within such longer period also will be available for inspection and and Economic Injury Loans): North Carolina: Currituck, up to 90 days (i) as the Commission may copying at the principal office of the Pasquotank. designate if it finds such longer period Exchange. All comments received will Virginia: Chesapeake City, Suffolk to be appropriate and publishes its be posted without change; the City. reasons for so finding or (ii) as to which Commission does not edit personal the self-regulatory organization identifying information from All other information in the original consents, the Commission will: submissions. You should submit only declaration remains unchanged. (A) By order approve or disapprove information that you wish to make (Catalog of Federal Domestic Assistance the proposed rule change, or available publicly. All submissions Numbers 59002 and 59008) (B) Institute proceedings to determine should refer to File Number SR– James E. Rivera, whether the proposed rule change NASDAQ–2010–137 and should be Associate Administrator for Disaster should be disapproved. submitted on or before November 30, Assistance. 2010 in the Federal Register. IV. Solicitation of Comments [FR Doc. 2010–28200 Filed 11–8–10; 8:45 am] For the Commission, by the Division of BILLING CODE 8025–01–M Interested persons are invited to Trading and Markets, pursuant to delegated submit written data, views, and authority.10 arguments concerning the foregoing, SMALL BUSINESS ADMINISTRATION including whether the proposed rule Florence E. Harmon, change is consistent with the Act. Deputy Secretary. [Disaster Declaration #12370 and #12371] Comments may be submitted by any of [FR Doc. 2010–28247 Filed 11–8–10; 8:45 am] California Disaster #CA–00160 the following methods: BILLING CODE 8011–01–P AGENCY: U.S. Small Business 9 15 U.S.C. 78f(b)(5). 10 17 CFR 200.30–3(a)(12). Administration.

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ACTION: Notice. Dated: November 2, 2010. Center (MMAC), Oklahoma City, Karen G. Mills, Oklahoma 73125: Civil Aerospace SUMMARY: This is a notice of an Administrator. Medical Institute, Aerospace Medical Administrative declaration of a disaster [FR Doc. 2010–28201 Filed 11–8–10; 8:45 am] Certification Division, AAM–300; for the State of California dated 11/02/ BILLING CODE 8025–01–P Regulatory Support Division, AFS–600; 2010. and Civil Aviation Registry, Airmen Incident: Glenview Explosion and Certification Branch AFS–760. Fire. • DEPARTMENT OF TRANSPORTATION Federal Aviation Administration, Incident Period: 09/09/2010. 800 Independence Avenue, SW., DATES: Effective Date: 11/02/2010. Office of the Secretary Washington, DC 20591: Drug Abatement Physical Loan Application Deadline Division, AAM–800 or the local Date: 01/03/2011. Privacy Act of 1974: System of Compliance and Enforcement Centers of Economic Injury (Eidl) Loan Records the Drug Abatement Division; Office of Application Deadline Date: 08/02/2011. Security and Hazardous Materials; AGENCY: Federal Aviation ADDRESSES: Submit completed loan Flight Standards District Offices applications to: U.S. Small Business Administration (FAA), Department of (FSDO’s); Certificate Management Administration, Processing and Transportation (DOT). Offices (CMO’s); Certificate Disbursement Center, 14925 Kingsport ACTION: Notice to modify a system of Management Field Offices (CMFO’s); Road, Fort Worth, TX 6155. records. International Field Offices; Office of Security and Hazardous Materials FOR FURTHER INFORMATION CONTACT: A. SUMMARY: DOT proposes to modify a Regional and Field Offices; FAA Escobar, Office of Disaster Assistance, system of records under the Privacy Act Regional Offices; and Chief Counsel, U.S. Small Business Administration, of 1974. The system is FAA’s Aviation Regional Counsel, and Aeronautical 409 3rd Street, SW., Suite 6050, Records on Individuals, which is being Center Counsel Offices. Washington, DC 20416. modified to reflect: (1) One new routine SUPPLEMENTARY INFORMATION: Notice is use and (2) clarity to the purpose of the CATEGORIES OF INDIVIDUALS COVERED BY THE hereby given that as a result of the system. This system would not SYSTEM OF RECORDS: Administrator’s disaster declaration, duplicate any other DOT system of This system contains information on: applications for disaster loans may be records. (1) Current certificated airmen, filed at the address listed above or other DATES: Effective Date: December 20, airmen whose certificates have expired, locally announced locations. 2010. If no comments are received, the airmen who are deceased, airmen The following areas have been proposal will become effective on the rejected for medical certification, determined to be adversely affected by above date. If comments are received, airmen with special certifications, and the disaster: the comments will be considered and, others requiring medical certification; Primary Counties: San Mateo. where adopted, the documents will be (2) Air traffic controllers in air route Contiguous Counties: republished with changes. traffic control centers, terminals, and California: Alameda, San Francisco, flight service stations, and applicants for ADDRESSES: Address all comments Santa Clara, Santa Cruz. these positions; concerning this notice to Carla Scott, (3) Holders of and applicants for The Interest Rates are: Department of Transportation, Federal airmen certificates, airmen seeking Aviation Administration, (AES–300), additional certifications or additional Percent 800 Independence Avenue, SW., ratings, individuals denied certification, Washington, DC 20591, (202) 267–9895. For Physical Damage: airmen holding inactive certificates, and Homeowners With Credit FOR FURTHER INFORMATION CONTACT: airmen who have had certificates Available Elsewhere ...... 5.000 Habib Azarsina, Departmental Privacy amended, modified, suspended or Homeowners Without Credit Officer, Department of Transportation, Available Elsewhere ...... 2.500 revoked. Office of the Secretary, 1200 New Jersey (4) Persons involved in aircraft Businesses With Credit Avail- Avenue, SE., Washington, DC 20003, able Elsewhere ...... 6.000 accidents and incidents, including Businesses Without Credit 202–366–1965 (telephone), crewmembers, passengers, persons on Available Elsewhere ...... 4.000 [email protected], (Internet the ground, and witnesses. Non-Profit Organizations With address). (5) Individuals performing safety- Credit Available Elsewhere 3.625 SUPPLEMENTARY INFORMATION: The sensitive functions under FAA’s drug Non-Profit Organizations Department of Transportation system of and alcohol testing regulations who Without Credit Available records notice subject to the Privacy Act have (a) tested positive on a Department Elsewhere ...... 3.000 Of Transportation (DOT)-required drug For Economic Injury: of 1974 (5 U.S.C. 552a), as amended, has Businesses & Small Agricul- been published in the Federal Register test; (b) tested 0.04 or greater for breath tural Cooperatives Without and is available from the above alcohol concentration on a DOT- Credit Available Elsewhere 4.000 mentioned address. required alcohol test; or (c) refused to Non-Profit Organizations submit to testing under a DOT-required Without Credit Available DOT/FAA 847 testing program. Elsewhere ...... 3.000 SYSTEM NAME: (6) Individuals in their commercial capacities who work for companies Aviation Records on Individuals The number assigned to this disaster conducting drug and alcohol testing. for physical damage is 12370 4 and for SECURITY CLASSIFICATION: (7) Individuals who witness violations economic injury is 12371 0. Sensitive, unclassified of FAA regulations. The States which received an EIDL (8) Individuals against whom FAA Declaration # are: California. SYSTEM LOCATION: has initiated informal action, (Catalog of Federal Domestic Assistance • Federal Aviation Administration administrative action or legal Numbers 59002 and 59008) (FAA), Mike Monroney Aeronautical enforcement action for violating safety

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regulations and statutes or orders issued Compliance and Enforcement Tracking aviation industry, and the public upon thereunder (see generally 49 U.S.C. System (CETS)). request. 40101 et seq., 44101 et seq., 45101 et • SPAS-related enforcement records (f) Make records of delinquent civil seq., 46101 et seq.; FAA regulations, 14 maintained in Chief Counsel, Regional penalties owed to the FAA available to CFR Parts 1–199; hazardous materials Counsel, and Aeronautical Center the U.S. Department of the Treasury regulations, 49 CFR Parts 171–180; and Counsel offices. (Treasury) and the U.S. Department of drug and alcohol testing regulations, 49 Justice (DOJ) for collection pursuant to CFR Part 40). AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 31 U.S.C. 3711(g). 49 U.S.C. 40101, 40113, 44701–44703, (g) Make records of effective orders CATEGORIES OF RECORDS IN THE SYSTEM: 44709, 45101–106, 46301. against the certificates of airmen • Name, date of birth, place of available to their employers if the PURPOSE(S): residence, mailing address, social airmen use the affected certificates to security number, and airman certificate This system is the official repository perform job responsibilities for those number. of aviation records on individuals that employers. • Records that are required to are required to be maintained in (h) Make airmen records available to determine the physical or mental connection with FAA’s oversight and users of FAA’s Safety Performance condition of an individual with respect enforcement of compliance with safety Analysis System (SPAS), including the to medical standards established by regulations and statutes and orders Department of Defense Commercial FAA. issued thereunder or that are required to Airlift Division’s Air Carrier Analysis • Records concerning drug or alcohol be made available, upon request, to Support System (ACAS) for its use in testing, test results, or refusals to submit other agencies, certain members of the identifying safety hazards and risk to testing under a DOT-required testing public (e.g., Aviation Medical areas, targeting inspection efforts for program. Examiners), or the public at large. certificate holders of greatest risk, and monitoring the effectiveness of targeted • Records concerning applications for ROUTINE USES OF RECORDS MAINTAINED IN THE oversight actions. certification, applications for knowledge SYSTEM, INCLUDING CATEGORIES OF USERS AND (i) Make records of an individual’s THE PURPOSES OF SUCH USES: examinations, results of knowledge positive drug test result, alcohol test tests, applications for inspection (a) Provide basic airmen certification result of 0.04 or greater breath alcohol authority, certificates held, ratings, stop and qualification information to the concentration, or refusal to submit to orders, and requests for replacement public upon request; examples of basic testing required under a DOT-required certificates. information include: testing program, available to third • • Reports of fatal accidents, The type of certificates and ratings parties, including employers and autopsies, toxicological studies, aviation held; prospective employers of such • medical examiner reports, medical The date, class, and restrictions of individuals. Such records will also record printouts, nonfatal reports, injury the latest physical airman’s certificate contain the names and titles of reports, accident name cards, magnetic number; individuals who, in their commercial • tape records of fatal accidents, The status of the airman’s certificate capacity, administer the drug and physiological autopsy, and consulting (i.e., whether it is current or has been alcohol testing programs of aviation pathologist’s summary of findings. amended, modified, suspended or entities. • Records of accident investigations, revoked for any reason); (j) Provide information about airmen preliminary notices of accident injury • The airman’s home address, unless through the airmen registry certification reports, engineering analyses, witness requested by the airman to be withheld system to the Department of Health and statements, investigators’ analyses, and from public disclosure per 49 U.S.C. Human Services, Office of Child pictures of accident scenes. 44703(c); Support Enforcement, and the Federal • Records concerning safety • Information relating to an Parent Locator Service that locates non- compliance notices, informal actions, individual’s physical status or condition custodial parents who owe child warning notices, oral or written used to determine statistically the support. Records in this system are used counseling, letters of correction, letters validity of FAA medical standards; and to identify airmen to the child support of investigation, notices of proposed • Information relating to an agencies nationwide in enforcing child legal enforcement action, final action individual’s eligibility for medical support obligations, establishing legal documents in enforcement actions, certification, requests for exemption paternities, establishing and modifying and correspondence of Regional from medical requirements, and support orders and location of obligors. Counsels, the Aeronautical Center requests for review of certificate denials. Records named within the section on Counsel, Chief Counsels, and others in (b) Use contact information to inform Categories of Records will be retrieved enforcement cases. airmen of meetings and seminars using Connect: Direct through the Social • All records on individuals within conducted by the FAA regarding Security Administration’s secure FAA databases for which the Safety aviation safety. environment. Performance Analysis System (SPAS) is (c) Disclose information to the (k) Make personally identifiable a software interface (i.e., inspection, National Transportation Safety Board information about airmen available to surveillance, and investigation records (NTSB) in connection with its other Federal agencies for the purpose concerning individuals, in systems investigation responsibilities. of verifying the accuracy and including but not limited to: Accident/ (d) Provide information about airmen completeness of medical information Incident Database System (AIDS), Air to Federal, State, local and Tribal law provided to FAA in connection with Transportation Oversight System enforcement agencies when engaged in applications for airmen medical (ATOS), Enforcement Information an official investigation in which an certification. System (EIS), National Program airman is involved. (l) Make records of past airman Tracking and Reporting System (PTRS), (e) Provide information about medical certification history data National Vital Information System (VIS), enforcement actions or orders issued available to Aviation Medical Examiners and the Drug Abatement Division’s thereunder to government agencies, the (AMEs) on a routine basis so that AMEs

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may render the best medical RETENTION AND DISPOSAL: conducted (visit or call the local FAA certification decision. Records are either destroyed or retired office for proper Regional Office (m) Make airman, aircraft and to the local Federal Records Center and address). • operator record elements available to then destroyed in accordance with the Drug and alcohol testing records, users of FAA’s Skywatch system, current version of FAA Order 1350.15C, and records of refusals to submit to including the Department of Defense Records Organization, Transfer and testing required under a DOT-required (DoD), the Department of Homeland Destruction Standards. The retention testing program: Drug Abatement Security (DHS), the Department of and destruction period for each record Division, AAM–800, or the local Justice (DOJ) and other authorized varies depending on the type of record, Compliance and Enforcement Centers of government users, for their use in but ranges between 30 days and 10 the Drug Abatement Division, as managing, tracking and reporting years. appropriate. • aviation-related security events. Records pertaining to security and SYSTEM MANAGER(S) AND ADDRESS: hazardous materials: Office of (n) Provide information about airmen Federal Aviation Administration, Hazardous Materials, ADG–1 to Federal, State, local, and Tribal law Mike Monroney Aeronautical Center, enforcement, national security or P.O. Box 25082, 6500 South MacArthur NOTIFICATION PROCEDURE: homeland security agencies whenever Blvd., Oklahoma City, Oklahoma Individuals wishing to know if their such agencies are engaged in the 73125— records appear in this system of records performance of threat assessments • Records concerning aviation may make a request in person or in affecting the safety of transportation or medical certification: Manager: writing to the appropriate system national security. Aerospace Medical Certification manager. The request must include: (0) See Prefatory Statement of General Division, AAM–300; • Name; Routine Uses. • FAA certification records and • Mailing address; • general airman records: Manager, Telephone number and/or e-mail POLICIES AND PRACTICES FOR STORING, Airmen Certification Branch, AFS–760; address; RETRIEVING ACCESSING RETAINING AND • , , , • Records concerning aircraft A description and, if possible, the DISPOSING OF RECORDS IN THE SYSTEM: accidents and incidents, inspections, location of the records requested; and • STORAGE: surveillance, and investigations: A statement under penalty of Manager, Aviation Data Systems perjury that the requester is the Records are maintained in file folders, individual who he or she claims to be. on lists and forms, and in computer Branch, AFS–620; • Records in FAA–Administered processing storage media. Records are RECORDS ACCESS PROCEDURE: databases concerning administrative also stored on microfiche, on roll Individuals who desire access to actions and legal enforcement actions: microfilm, and as electronic images. information in this system of records Manager, Aviation Data Systems should make a written request to, or an RETRIEVABILITY: Branch, AFS–620; appointment with, the appropriate • Records pertaining to legal system manager. Each request should Records may be retrieved by name, enforcement actions maintained in describe the particular record to the birth date, sex, Social Security number, Chief Counsel, Regional Counsel, and fullest extent possible, including the airman certificate number, or other Aeronautical Center Counsel offices: subject matter of the record, and, if identification number of the individual The address of the appropriate FAA known, the date when it was made, on whom the records are maintained; or regional or field office maintaining the where it was made, and the originating by medical identification number, official agency enforcement file may be person or office. Each request must also accident number and/or incident obtained from AFS–620. include a statement under penalty of number, and enforcement investigative • Records pertaining to perjury that the requester is the report number or docket number. administrative actions and informal individual who he or she claims to be. actions: The investigating FAA field SAFEGUARDS: office or regional office or the Drug PROCEDURES FOR CONTESTING RECORDS: Manual records: Strict information Abatement Division, AAM–800, or the Individuals who desire to contest handling procedures have been local Compliance and Enforcement information about themselves contained developed to cover the use, Centers of the Drug Abatement Division, in the system of records should make transmission, storage, and destination of as appropriate. The address of the their request in writing, detailing the personal data in hard copy form. The appropriate FAA regional or field office reasons why the records should be procedures are periodically reviewed for maintaining the official agency corrected, and submit the request to the compliance with applicable laws. enforcement file may be obtained from attention of the FAA official responsible Automated Processing Records in FAA– AFS–620. for the record at the address appearing • Administered Systems: Computer Electronic enforcement litigation in this notice. The request must include processing of personal information is tracking system records: Chief Counsel, a statement under penalty of perjury conducted within established FAA Regional Counsel, and Aeronautical that the requester is the individual who computer security regulations. A risk Center Counsel offices. he or she claims to be. assessment of the FAA facility is • Accounting files: Office of Financial performed prior to the implementation Operations (AMZ) at the Aeronautical RECORDS SOURCE CATEGORIES: of the system of records. Automated Center, and Office of Financial a. Medical Records are obtained from Processing Records in Commercial Management (AFM) at headquarters. Aviation Medical Examiners (AME’s), Computer Contractor-Administered • Aviation medical certification the individual to whom the records Systems: Computer programs are records from headquarters and regional pertain, consultants, hospitals, treating operated on commercial security levels files: Medical Specialties Division at or examining physicians, and Federal/ and record element restrictions to headquarters, AAM–200, or the State/local/Tribal Government agencies. prevent release of data to unauthorized Regional Flight Surgeon within the b. Airmen Certification Records are parties. region where examination was obtained from the individual to whom

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the records pertain, FAA aviation safety contact records that are not covered by II. The Privacy Act inspectors, and FAA designated the government-wide System of Records The Privacy Act (5 U.S.C. 552a) representatives. Notice (SORN) of the Office of governs the means by which the United c. General Aviation Accident/Incident Personnel Management, OPM/GOVT–1. States Government collects, maintains, Records and Air Carrier Incident (OPM/GOVT–1 covers some but not all and uses personally identifiable Records are obtained from Aviation employee contact records that are information (PII) in a system of records. Medical Examiners, pathologists, maintained outside the Official A ‘‘system of records’’ is a group of any accident investigation records, medical Personnel File, does not cover agencies’ records under the control of a Federal laboratories, Federal/State/local/Tribal emergency-program-related contact agency from which information about law enforcement officials, and FAA records, and does not cover contact individuals is retrieved by name or employees. Data are also collected from information about contractor personnel.) other personal identifier. manufacturers of aircraft and involved The DOT-wide system, known as the The Privacy Act requires each agency passengers. Emergency Contact Records system to publish in the Federal Register a d. Informal Action, Administrative (ECR), is more thoroughly detailed system of records notice (SORN) Action and Legal Enforcement Records below. identifying and describing each system are obtained from witnesses, the Offices DATES: Effective December 27, 2010. of records the agency maintains, of the Chief Counsel, Regional Counsels including the purposes for which the and Aeronautical Center Counsel, the Written comments should be submitted on or before the effective date. DOT/ agency uses PII in the system, the National Transportation Safety Board, routine uses for which the agency Office of Security and Hazardous OST may publish an amended SORN in light of any comments received. discloses such information outside the Materials (ASH) personnel, Flight agency, and how individuals to whom Standards personnel, Office of Aviation ADDRESSES: Send written comments to a Privacy Act record pertains can Safety (AVS) personnel and Habib Azarsina, Departmental Privacy exercise their rights under the Privacy Aeronautical Center personnel. Officer, Office of the Chief Information Act (e.g., to determine if the system e. Drug and alcohol testing records Officer, U.S. Department of contains information about them). and records relating to test results and Transportation, 1200 New Jersey In accordance with 5 U.S.C. 552a(r), a refusals to submit to testing are obtained Avenue, SE., Washington, DC 20590 or report on the establishment of this from the individual to whom the [email protected]. system of records has been sent to records pertain, current or previous FOR FURTHER INFORMATION CONTACT: For Congress and to the Office of employers, witnesses, FAA Drug privacy issues please contact: Habib Management and Budget. Abatement inspectors, service agents Azarsina, Departmental Privacy Officer, System Number: DOT/ALL 22 providing drug and alcohol testing Office of the Chief Information Officer, services for employers, and other U.S. Department of Transportation, 1200 SYSTEM NAME: Federal/State/local/Tribal Government New Jersey Avenue, SE., Washington, agencies. Emergency Contact Records (ECR)— DC 20590 or [email protected] or Not Covered by Notices of Other EXEMPTIONS CLAIMED FOR THIS SYSTEM: (202) 366–1965. Agencies. Records in this system that relate to SUPPLEMENTARY INFORMATION: SECURITY CLASSIFICATION: administrative actions and legal I. DOT Emergency Contact Records enforcement actions are exempted from Unclassified, sensitive. certain access and disclosure This System of Records Notice covers SYSTEM LOCATION: requirements of the Privacy Act of 1974, all Privacy Act systems within DOT that These records are maintained at all pursuant to 5 U.S.C. 552a(k)(2). maintain emergency contact records Department of Transportation (DOT) Dated: November 3, 2010. about DOT personnel (including Headquarters offices and field locations, Habib Azarsina, employees, detailees and contractor for all DOT components. Locations are Departmental Privacy Officer. personnel), other than those covered by available from http://www.dot.gov. OPM/GOVT–1. Examples of such [FR Doc. 2010–28237 Filed 11–8–10; 8:45 am] systems include, but are not limited to, CATEGORIES OF INDIVIDUALS COVERED BY THE BILLING CODE 4910–9X–P the following: SYSTEM OF RECORDS: • DOT offices that administer Record subjects are current and former DOT employees, detailees and DEPARTMENT OF TRANSPORTATION emergency-related programs (such as emergency response, building contractor personnel. Office of the Secretary evacuation, continuity of operations) CATEGORIES OF RECORDS IN THE SYSTEM: maintain emergency contact records The system includes emergency Privacy Act of 1974; System of about emergency, mission-critical contact records not covered by OPM/ Records Notice emergency, and other personnel as GOVT–1, including but not limited to required for those programs. AGENCY: Office of the Secretary of records that particular DOT offices • Transportation (OST), Department of Supervisors and administrative create for emergency-related programs Transportation (DOT). assistants in offices throughout DOT (such as emergency response, building maintain emergency contact records ACTION: Notice to establish a system of evacuation and continuity of about personnel in their work units for records. operations); that DOT supervisors and general office administrative purposes. administrative assistants create for their SUMMARY: The Department of • Some DOT components maintain general office administrative purposes; Transportation’s Office of the Secretary automated systems to communicate and that DOT components use to of Transportation (DOT/OST) proposes mass notifications to all of their provide mass notifications to to establish a DOT-wide system of employees, including those who are not employees. The records contain records under the Privacy Act of 1974 involved in emergency and mission- personal contact information for (5 U.S.C. 552a) to cover emergency critical programs. employees, detailees and contractor

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personnel and for their designated them about an urgent work matter (e.g., RETRIEVABILITY: contacts (e.g., relatives, friends), and during off-duty hours); Records may be retrieved by the may include the following personally- • To notify designated third-party individual record subject’s name, identifiable information (PII) about contact(s) to help locate a personnel location, telephone number, special them: member who is absent without leave, or identification numbers or codes • Personal cell phone number, home to assist a personnel member in an assigned only for these records, and/or telephone number, home fax number, evacuation or if he or she is injured, ill other personal identifier. home address, home e-mail address; or incapacitated at work; and • SAFEGUARDS: Information about the personnel • To deliver an identical automated member’s skills, position, and Only personnel with a need to know message to all of the component’s or are authorized to access the records. assignment to or membership on an office’s personnel, alerting them to emergency response team (such as a Access to electronic records is conditions such as power outages, road controlled by password and limited continuity of operations cadre or a field closings and extreme weather. incident response team), to facilitate according to job function. Personnel their deployment in an emergency; Any special needs, medical condition may be allowed access to their own • Work location information, which or similar information contained in the entries, to edit or update them. Access may include zip code or geophysical records is maintained and used in to hard-copy records is controlled by information system data to facilitate accordance with relevant provisions of lock and key or by access to a secure mapping of locations where the the Rehabilitation Act of 1973, as area. amended, 29 U.S.C. 791, et seq., and personnel member is working; RETENTION AND DISPOSAL: • Special needs information such as implementing regulations at 29 CFR medical conditions or mobility parts 1614 and 1630, and the Genetic Pursuant to General Records Schedule requirements (such information is not Information Nondiscrimination Act of 18, Item 27, contact records maintained routinely collected but may be included 2008 at 42 U.S.C. 2000ff et seq.. for emergency-related programs are if a personnel member provides it Contractor personnel and detailees destroyed 3 years after issuance of a voluntarily); and assisting DOT may have access to and new emergency plan or directive. • The personnel member’s use information in these systems; for Pursuant to General Records Schedule relationship to any third-party contacts example, DOT may use contractors to 1, Item 18, other emergency contact he or she designates. provide emergency notification and records (such as those maintained by communication services or system supervisors and administrative AUTHORITY FOR MAINTENANCE OF THE SYSTEM: administrative services for databases assistants) are destroyed when The National Security Act of 1947, as containing the records. superseded or obsolete or within one amended; the Homeland Security Act of year after separation or transfer of the 2002 (Pub. L. 107–296), dated November ROUTINE USES OF RECORDS MAINTAINED IN THE personnel member. SYSTEM, INCLUDING CATEGORIES OF USERS AND 25, 2002; Executive Order 12148, SYSTEM MANAGER AND ADDRESS: Federal Emergency Management, dated THE PURPOSES OF SUCH USES: The DOT Office of Intelligence, July 20, 1979, as amended; Executive DOT shares contact information about Security and Emergency Response, the Order 12656, Assignment of Emergency emergency personnel and mission- Human Resources Office, the Head of Preparedness Responsibilities, dated critical emergency personnel who are the individual record subject’s November 18, 1988, as amended; assigned to DOT emergency-related employing office, or the supervisor or Executive Order 13286, Establishing the programs with Federal, State and local administrative assistant for the work Office of Homeland Security, dated governmental agencies or executive group or unit. February 28, 2003. offices, relief agencies, 501c3s, and non- governmental organizations, when NOTIFICATION PROCEDURE: PURPOSE(S): disclosure is appropriate for proper At any time, the record subject (the Emergency contact records are used coordination of security, protective, and individual personnel member) may by DOT human resources specialists, other official operations and functions contact the System Manager to request security, safety and emergency response in response to or in preparation for access to review his or her personal coordinators, members of emergency emergency situations. information in the system and request response teams and other work units, Other possible routine uses of the changes, as appropriate. A requester and supervisors and administrative information, applicable to all DOT must provide suitable identification and assistants, on a need to know basis, for Privacy Act systems of records, are may be required to sign a written the reasons such as the following: published in the Federal Register at 65 request, including but not limited to the • To identify and locate emergency FR 19476 (April 11, 2000), under requester’s name, mailing address, personnel to work during emergencies, ‘‘Prefatory Statement of General Routine telephone number and/or e-mail office dismissal or closure situations; Uses’’ (available at http://www.dot.gov/ • To identify and locate mission- address, a description of the records privacy/privacyactnotices). critical emergency personnel to requested, and a sworn statement (either participate in continuity of operations a signed, notarized statement or a DISCLOSURE TO CONSUMER REPORTING statement signed under penalty of exercises and to provide continuity of AGENCIES: operations during national security, perjury) that the requester is the None. natural disaster, pandemic flu and individual who he or she claims to be. similar situations; POLICIES AND PRACTICES FOR STORING, RECORD ACCESS PROCEDURE: • To account for and maintain RETRIEVING, ACCESSING, RETAINING, AND Same as indicated under ‘‘Notification communication with personnel during DISPOSING OF RECORDS IN THE SYSTEM— procedure.’’ an office closure, building evacuation, natural disaster, pandemic flu or other STORAGE: CONTESTING RECORD PROCEDURE: office emergency (e.g., to make telework Electronic databases and paper file Same as indicated under ‘‘Notification or leave arrangements), or to contact folders. procedure.’’

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RECORD SOURCE CATEGORIES: JCA estimates that approximately required by 49 U.S.C. 30118 and Individual personnel members 899,804 Trail America brand Special remedying the recall noncompliance as provide their own emergency contact Trailer ‘‘ST’’ tires that were required by 49 U.S.C. 30120, should be information. Supervisors designate manufactured from January 1, 2008, granted. employees to serve as emergency through October 15, 2009, by Tianjin NHTSA notes that the statutory employees or mission critical Kings Glory Tire Company, LTD. of provisions (49 U.S.C. 30118(d) and emergency employees. Emergency Qiaosandao, Yangliuqing, Xiqing 30120(h)) that permit manufacturers to personnel, security specialists, human Tianjin, China 300380, and imported by file petitions for a determination of resources specialists, supervisors and JCA are affected. inconsequentiality allow NHTSA to administrative assistants may provide Paragraph S6.5 of FMVSS No. 119 exempt manufacturers only from the other information (e.g., skill data, work requires in pertinent part: duties found in sections 30118 and location information, job titles, S6.5 Tire markings. Except as specified in 30120, respectively, to notify owners, occupational code/series, and this paragraph, each tire shall be marked on purchasers, and dealers of a defect or information that describes the each sidewall with the information specified noncompliance and to remedy the emergency response group or work unit in paragraphs (a) through (j) of this section. defect or noncompliance. to which the individual is assigned). The markings shall be placed between the Interested persons are invited to maximum section width (exclusive of submit written data, views, and EXEMPTIONS CLAIMED FOR THE SYSTEM: sidewall decorations or curb ribs) and the arguments on this petition. Comments None. bead on at least one sidewall, unless the maximum section width of the tire is located must refer to the docket and notice Dated: November 3, 2010. in an area which is not more than one-fourth number cited at the beginning of this Habib Azarsina, of the distance from the bead to the shoulder notice and be submitted by any of the Departmental Privacy Officer, of the tire. If the maximum section width following methods: 202–366–1965. falls within that area, the markings shall a. By mail addressed to: U.S. [FR Doc. 2010–28238 Filed 11–8–10; 8:45 am] appear between the bead and a point one-half Department of Transportation, Docket the distance from the bead to the shoulder of BILLING CODE 4910–9X–P Operations, M–30, West Building the tire, on at least one sidewall. The Ground Floor, Room W12–140, 1200 markings shall be in letters and numerals not New Jersey Avenue, SE., Washington, less than 2 mm (0.078 inch) high and raised DEPARTMENT OF TRANSPORTATION above or sunk below the tire surface not less DC 20590. than 0.4 mm (0.015 inch), except that the b. By hand delivery to U.S. National Highway Traffic Safety marking depth shall be not less than 0.25mm Department of Transportation, Docket Administration (0.010 inch) in the case of motorcycle tires. Operations, M–30, West Building [Docket No. NHTSA–2010–0143; Notice 1] The tire identification and the DOT symbol Ground Floor, Room W12–140, 1200 labeling shall comply with part 574 of this New Jersey Avenue, SE., Washington, JCA Corporation, Receipt of Petition chapter. Markings may appear on only one DC 20590. The Docket Section is open for Decision of Inconsequential sidewall and the entire sidewall area may be on weekdays from 10 am to 5 pm except used in the case of motorcycle tires and Federal Holidays. Noncompliance recreational, boat, baggage, and special trailer c. Electronically: By logging onto the JCA Corporation (JCA) 1 has tires * * * (d) The maximum load rating and Federal Docket Management System determined that certain Trail America (FDMS) Web site at http:// brand Special Trailer ‘‘ST’’ tires that it corresponding inflation pressure of the tire, shown as follows: * * * www.regulations.gov/. Follow the online imported failed to meet the (Mark on tires rated only for single load): instructions for submitting comments. requirements of paragraph S6.5(d) of Max load ––––kg (––––lb) at ––––kPa (–––– Comments may also be faxed to 1–202– Federal Motor Vehicle Safety Standard psi) cold. 493–2251. (FMVSS) No. 119, New Pneumatic Tires JCA states that the noncompliance is Comments must be written in the for Motor Vehicles with a GVWR of that the maximum single load labeling English language, and be no greater than more than 4,536 Kilograms (10,000 and maximum inflation pressures on the 15 pages in length, although there is no Pounds) and Motorcycles. JCA has filed sidewalls of the tires are in English limit to the length of necessary an appropriate report pursuant to 49 units of ‘‘lb’’ and ‘‘psi’’ only, no Metric attachments to the comments. If CFR Part 573, Defect and units are included as required by comments are submitted in hard copy Noncompliance Responsibility and paragraph S6.5(d) of FMVSS No. 119. form, please ensure that two copies are Reports, dated October 19, 2009. JCA explained that no property provided. If you wish to receive Pursuant to 49 U.S.C. 30118(d) and damage or accidents have been reported confirmation that your comments were 30120(h) (see implementing rule at 49 to it or its customers as a result of the received, please enclose a stamped, self- CFR part 556), JCA has petitioned for an subject noncompliance. addressed postcard with the comments. exemption from the notification and JCA further explains that it has taken Note that all comments received will be remedy requirements of 49 U.S.C. steps to correct the noncompliance in posted without change to http:// Chapter 301 on the basis that this future production. www.regulations.gov, including any noncompliance is inconsequential to JCA also states that it believes the personal information provided. motor vehicle safety. Documents submitted to a docket may This notice of receipt of JCA’s petition noncompliance is inconsequential to be viewed by anyone at the address and is published under 49 U.S.C. 30118 and motor vehicle safety because the times given above. The documents may 30120 and does not represent any affected tires fulfill all other relevant also be viewed on the Internet at http: agency decision or other exercise of requirements of FMVSS No. 119. //www.regulations.gov by following the judgment concerning the merits of the Supported by the above stated online instructions for accessing the petition. reasons, JCA believes that the described noncompliance is inconsequential to dockets. DOT’s complete Privacy Act Statement is available for review in the 1 JCA Corporation (JCA) is a State of Washington motor vehicle safety, and that its corporation that imports replacement motor vehicle petition, to exempt it from providing Federal Register published on April 11, equipment. recall notification of noncompliance as 2000 (65 FR 19477–78).

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The petition, supporting materials, any agency decision or other exercise of with the tire identification number required and all comments received before the judgment concerning the merits of the by 49 CFR part 574 on the intended outboard close of business on the closing date petition. sidewall of the tire. Except for retreaded tires, indicated below will be filed and will be Pirelli estimated that 30,881 2 Pirelli either the tire identification number or a partial tire identification number, containing considered. All comments and Pzero Nero M+S and Scorpion Zero all characters in the tire identification supporting materials received after the Asimmetrico replacement tires number, except for the date code and, at the closing date will also be filed and will produced between September 1, 2007, discretion of the manufacturer, any optional be considered to the extent possible. and February 26, 2009, in the tire sizes code, must be labeled on the other sidewall When the petition is granted or denied, indicated in the following table have the of the tire. Except for retreaded tires, if a tire notice of the decision will be published subject noncompliance. does not have an intended outboard sidewall, in the Federal Register pursuant to the P245/45ZR17 95W, Pzero Nero M+S the tire must be labeled with the tire authority indicated below. P235/45ZR17 94W, Pzero Nero M+S identification number required by 49 CFR Dates: Comment closing date: P235/40ZR18 91W, Pzero Nero M+S part 574 on one sidewall and with either the P215/35ZR18 84W, Pzero Nero M+S tire identification number or a partial tire December 9, 2010. identification number, containing all Authority: 49 U.S.C. 30118, 30120: P215/35ZR19 85W, Pzero Nero M+S characters in the tire identification number delegations of authority at CFR 1.50 and 265/35ZR22 102W Extra Load, Scorpion except for the date code and, at the discretion 501.8. Zero Asimmetrico of the manufacturer, any optional code, on 295/30ZR22 103W Extra Load, Scorpion Issued on: November 3, 2010. the other sidewall * * * Zero Asimmetrico S7.3 Tires manufactured on or after Claude H. Harris, 305/35ZR23 111W Extra Load, Scorpion September 1, 2007. Each tire must comply Director, Office of Vehicle Safety Compliance. Zero Asimmetrico with S4, S5.5, S5.5.1, S5.5.2, S5.5.3, S5.5.4, [FR Doc. 2010–28194 Filed 11–8–10; 8:45 am] 265/45ZR20 108W Extra Load, Scorpion S5.5.5, and S5.5.6 of this standard. BILLING CODE 4910–59–P Zero Asimmetrico Pirelli described the noncompliance Paragraphs S5.5 and S7.3 of FMVSS No. as the absence of either the complete or 139 require in pertinent part: partial tire identification number (TIN) DEPARTMENT OF TRANSPORTATION S5.5 Tire markings. Except as specified in on the inner tire sidewall as required by National Highway Traffic Safety paragraphs (a) through (i) of S5.5, each tire paragraphs S5.5 and S7.3 of FMVSS No. Administration must be marked on each sidewall with the 139. information specified in S5.5(a) through (d) Pirelli argues that because all of the [Docket No. NHTSA–2010–0142; Notice 1] and on one sidewall with the information affected tires have an asymmetric tread specified in S5.5(e) through (i) according to pattern, they can only be correctly Pirelli Tire LLC, Receipt of Petition for the phase-in schedule specified in S7 of this standard. The markings must be placed installed with the intended outer Decision of Inconsequential sidewall facing the outside of the Noncompliance between the maximum section width and the bead on at least one sidewall, unless the vehicle. Pirelli also points out that Pirelli Tire LLC (Pirelli) 1 has maximum section width of the tire is located asymmetric tires represent a very small determined that approximately 30,881 in an area that is not more than one-fourth percentage of the overall tire market. Pirelli Pzero Nero M+S and Scorpion of the distance from the bead to the shoulder Pirelli explained that all of the of the tire. If the maximum section width Zero Asimmetrico replacement tires affected tires are stenciled on the falls within that area, those markings must intended outside sidewall with the produced between September 1, 2007, appear between the bead and a point one-half and February 26, 2009, do not fully the distance from the bead to the shoulder of lettering OUTER in four different comply with the tire labeling the tire, on at least one sidewall. The languages (English, French, German and requirements of paragraphs S5.5 and markings must be in letters and numerals not Italian). S7.3 of Federal Motor Vehicle Safety less than 0.078 inches high and raised above Pirelli further explained that the non- Standard (FMVSS) No. 139, New or sunk below the tire surface not less than compliance was identified on February 0.015 inches. 26, 2010, during an inspection of mold Pneumatic Radial Tires for Light S5.5.1 Tire identification number. (a) Vehicles. On March 12, 2010, Pirelli branding at the plant that produced the Tires manufactured before September 1, subject tires. Pirelli then examined filed an appropriate report pursuant to 2009. Each tire must be labeled with the tire 49 CFR Part 573, Defect and identification number required by 49 CFR related production records in order to Noncompliance Responsibility and part 574 on a sidewall of the tire. Except for accurately identify the specific Reports. retreaded tires, either the tire identification noncompliant tires. All molds are being Pursuant to 49 U.S.C. 30118(d) and number or a partial tire identification modified or have been modified to 30120(h) (see implementing rule at 49 number, containing all characters in the tire ensure that the appropriate TIN identification number, except for the date information is contained on both CFR part 556), Pirelli petitioned for an code and, at the discretion of the exemption from the notification and sidewalls for future production. manufacturer, any optional code, must be Pirelli provided the following basis of remedy requirements of 49 U.S.C. labeled on the other sidewall of the tire. Chapter 301 on the basis that this (b) Tires manufactured on or after why they believe the subject noncompliance is inconsequential to September 1, 2009. Each tire must be labeled noncompliance is inconsequential to motor vehicle safety. Specifically, Pirelli motor vehicle safety: submitted the original petition, dated 2 Pirelli’s petition, which was filed under 49 CFR While the subject tires are noncompliant March 12, 2010, and a supplement to Part 556, requests an agency decision to exempt with paragraph S5.5 of FMVSS No. 139 for Pirelli as replacement equipment manufacturer labeling, the noncompliance has an the original petition dated April 12, from the notification and recall responsibilities of 2010. inconsequential effect on tire performance 49 CFR Part 573 for 30,881 of the affected tires. and motor vehicle safety because all of the This notice of receipt of Pirelli’s However, the agency cannot relieve Pirelli’s affected tires meet or exceed all of the petition is published under 49 U.S.C. distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for minimum performance requirements of 30118 and 30120 and does not represent introduction into interstate commerce of the FMVSS No. 139. noncompliant tires under their control after Pirelli 1 Pirelli Tire LLC is a manufacturer and importer recognized that the subject noncompliance existed. In addition, the Company mentioned of replacement equipment that is organized under Those tires must be brought into conformance, the existence of certain factors that the laws of the State of Georgia. exported, or destroyed. facilitates and encourages proper

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installation and thus provide tires subject to any such recall, Pirelli also be viewed on the Internet at http:// accessibility and visibility of the full suggests that it would instead issue www.regulations.gov by following the TIN on the outside sidewall: recall notices to all end users who can online instructions for accessing the Pirelli’s internal policy allows dealers to be located. Pirelli then would have its dockets. DOT’s complete Privacy Act sell these asymmetric tires only in pairs or dealers inspect the tires. If the tires are Statement is available for review in the in groups of four. As a result, these properly mounted, with the TINs facing Federal Register published on April 11, replacement tires are installed either on both the outside of the vehicle, the tires 2000 (65 FR 19477–78). sides of the rear axle or on all four locations. would be left on the vehicle. If any tires The petition, supporting materials, The odds of even one tire being mounted were found to be mounted with the and all comments received before the incorrectly are extremely remote, and the outer sidewalls facing inward (which is close of business on the closing date odds of two or four tires being mounted the extremely unlikely), the tires would be indicated below will be filed and will be wrong way are even more remote. considered. All comments and All subject tires are either Pzero Nero M+S remounted in the appropriate way. or Scorpion Zero Asimmetrico. Both product NHTSA notes that the statutory supporting materials received after the families are ultra high performance tires; provisions (49 U.S.C. 30118(d) and closing date will also be filed and will their asymmetric tread design is one of the 30120(h)) that permit manufacturers to be considered to the extent possible. main features sought by consumers for the file petitions for a determination of When the petition is granted or denied, following reasons: Precision handling in all inconsequentiality allow NHTSA to notice of the decision will be published conditions; full and compact external exempt manufacturers only from the in the Federal Register pursuant to the shoulder blocks for increased safety and dry duties found in sections 30118 and authority indicated below. handling performance; and inner shoulders 30120, respectively, to notify owners, Dates: Comment closing date: designed to maximize traction with deeper purchasers, and dealers of a defect or December 9, 2010. and more regular cuts. These benefits are obtained only if the tires are mounted with noncompliance and to remedy the Authority: 49 U.S.C. 30118, 30120: the outer sidewall pointing to the outside of defect or noncompliance. delegations of authority at CFR 1.50 and the vehicle. Having paid a substantial price Interested persons are invited to 501.8. to obtain these performance characteristics, submit written data, views, and Issued on: November 3, 2010. the customers seek to ensure that their tires arguments on this petition. Comments Claude H. Harris, are installed correctly. must refer to the docket and notice Pirelli’s product literature and training number cited at the beginning of this Director, Office of Vehicle Safety Compliance. procedures reinforce the message on proper notice and be submitted by any of the [FR Doc. 2010–28195 Filed 11–8–10; 8:45 am] mounting. following methods: BILLING CODE 4910–59–P Pirelli provides extensive training to its a. By mail addressed to: U.S. authorized dealers, and that training focuses specifically on the need to mount asymmetric Department of Transportation, Docket tires in the correct way. Operations, M–30, West Building DEPARTMENT OF THE TREASURY A second TIN number (on the inboard side Ground Floor, Room W12–140, 1200 of the tire) is not necessary either to ensure New Jersey Avenue, SE., Washington, Office of the Comptroller of the traceability or to allow consumers to operate DC 20590. Currency their vehicles safely. b. By hand delivery to: U.S. Pirelli has not received a single complaint Department of Transportation, Docket FEDERAL RESERVE SYSTEM from any consumer, dealer, law enforcement Operations, M–30, West Building agency, or other source that indicated any Ground Floor, Room W12–140, 1200 FEDERAL DEPOSIT INSURANCE difficulty or problem in finding the full TIN, CORPORATION including the date code on its asymmetrical New Jersey Avenue, SE., Washington, tires. DC 20590. The Docket Section is open Pirelli collects and tracks data on warranty on weekdays from 10 am to 5 pm except DEPARTMENT OF THE TREASURY claims for all of tires, including the tires at Federal Holidays. issue here. The warranty data confirm that c. Electronically: by logging onto the Office of Thrift Supervision these tires have performed extremely well in Federal Docket Management System Agency Information Collection the field. The number of claims is very small, (FDMS) Web site at http:// Activities: Submission for OMB and there have been no claims involving www.regulations.gov/. Follow the online property damage. Review; Joint Comment Request instructions for submitting comments. In summation, for the reasons stated Comments may also be faxed to 1–202– AGENCY: Office of the Comptroller of the above, Pirelli believes that the described 493–2251. Currency (OCC), Treasury; Board of noncompliance concerning the tire Comments must be written in the Governors of the Federal Reserve labeling requirements of paragraphs English language, and be no greater than System (Board); Federal Deposit S5.5 and S7.3 of FMVSS No. 139 is 15 pages in length, although there is no Insurance Corporation (FDIC); and inconsequential and does not present a limit to the length of necessary Office of Thrift Supervision (OTS), risk to motor vehicle safety. Thus, attachments to the comments. If Treasury. Pirelli requests that its petition, to comments are submitted in hard copy ACTION: Notice of information collection exempt it from providing recall form, please ensure that two copies are to be submitted to OMB for review and notification of noncompliance as provided. If you wish to receive approval under the Paperwork required by 49 U.S.C. 30118 and confirmation that your comments were Reduction Act of 1995. remedying the recall noncompliance as received, please enclose a stamped, self- required by 49 U.S.C. 30120, should be addressed postcard with the comments. SUMMARY: In accordance with the granted. In the supplement to its Note that all comments received will be requirements of the Paperwork petition Pirelli additionally requested posted without change to http:// Reduction Act (PRA) of 1995 (44 U.S.C. that if NHTSA decides that a complete www.regulations.gov, including any chapter 35), the OCC, the Board, the exemption should not be granted, that at personal information provided. FDIC, and the OTS (the ‘‘agencies’’) may a minimum, NHTSA exempt the Documents submitted to a docket may not conduct or sponsor, and the company from standard remedy be viewed by anyone at the address and respondent is not required to respond requirements. Rather than replacing all times given above. The documents may to, an information collection unless it

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displays a currently valid Office of on the http://www.federalreserve.gov/ • Federal eRulemaking Portal: http:// Management and Budget (OMB) control generalinfo/foia/ProposedRegs.cfm. www.regulations.gov. Follow the number. On September 3, 2010, the • Federal eRulemaking Portal: http:// instructions for submitting comments. agencies, under the auspices of the www.regulations.gov. Follow the • E-mail address: Federal Financial Institutions instructions for submitting comments. [email protected]. Examination Council (FFIEC), requested • E-mail: Please include ‘‘1550–0023 (TFR: public comment for 60 days on a [email protected]. Schedule DI Revisions)’’ in the subject proposal to revise the Consolidated Include reporting form number in the line of the message and include your Reports of Condition and Income (Call subject line of the message. name and telephone number in the Report) for banks, the Thrift Financial • FAX: (202) 452–3819 or (202) 452– message. Report (TFR) for savings associations, 3102. • Fax: (202) 906–6518. • the Report of Assets and Liabilities of Mail: Jennifer J. Johnson, Secretary, • Mail: Information Collection U.S. Branches and Agencies of Foreign Board of Governors of the Federal Comments, Chief Counsel’s Office, Banks (FFIEC 002), and the Report of Reserve System, 20th Street and Office of Thrift Supervision, 1700 G Assets and Liabilities of a Non-U.S. Constitution Avenue, NW., Washington, Street, NW., Washington, DC 20552, Branch that is Managed or Controlled by DC 20551. Attention: ‘‘1550–0023 (TFR: Schedule a U.S. Branch or Agency of a Foreign All public comments are available DI Revisions).’’ (Non-U.S.) Bank (FFIEC 002S), all of from the Board’s Web site at http:// • Hand Delivery/Courier: Guard’s which are currently approved www.federalreserve.gov/generalinfo/ Desk, East Lobby Entrance, 1700 G collections of information. No foia/ProposedRegs.cfm as submitted, Street, NW., from 9 a.m. to 4 p.m. on comments were received on the unless modified for technical reasons. business days, Attention: Information proposal. The FFIEC and the agencies Accordingly, your comments will not be Collection Comments, Chief Counsel’s will implement the revisions to the edited to remove any identifying or Office, Attention: ‘‘1550–0023 (TFR: reports as proposed. contact information. Public comments Schedule DI Revisions).’’ may also be viewed electronically or in Instructions: All submissions received DATES: Comments must be submitted on paper in Room MP–500 of the Board’s or before December 9, 2010. must include the agency name and OMB Martin Building (20th and C Streets, Control Number for this information ADDRESSES: Interested parties are NW.) between 9 a.m. and 5 p.m. on collection. All comments received will invited to submit written comments to weekdays. be posted without change to the OTS any or all of the agencies. All comments, FDIC: You may submit comments, Internet site at http://www.ots.treas.gov/ which should refer to the OMB control which should refer to ‘‘Consolidated pagehtml.cfm?catNumber=67&an=1, number(s), will be shared among the Reports of Condition and Income, 3064– including any personal information agencies. 0052,’’ by any of the following methods: • provided. OCC: You should direct all written Agency Web Site: http:// Docket: For access to the docket to comments to: Communications www.fdic.gov/regulations/laws/federal/ read background documents or Division, Office of the Comptroller of propose.html. Follow the instructions comments received, go to http:// the Currency, Mailstop 2–3, Attention: for submitting comments on the FDIC www.ots.treas.gov/ 1557–0081, 250 E Street, SW., Web site. pagehtml.cfm?catNumber=67&an=1. • Federal eRulemaking Portal: http:// Washington, DC 20219. In addition, In addition, you may inspect www.regulations.gov. Follow the comments may be sent by fax to (202) comments at the Public Reading Room, instructions for submitting comments. 874–5274, or by electronic mail to • 1700 G Street, NW., by appointment. To [email protected]. You may E-mail: [email protected]. ‘‘ make an appointment for access, call personally inspect and photocopy Include Consolidated Reports of Condition and Income, 3064–0052’’ in (202) 906–5922, send an e-mail to comments at the OCC, 250 E Street, [email protected], or send a SW., Washington, DC 20219. For the subject line of the message. • Mail: Gary A. Kuiper, (202) 898– facsimile transmission to (202) 906– security reasons, the OCC requires that 3877, Counsel, Attn: Comments, Room 7755. (Prior notice identifying the visitors make an appointment to inspect F–1072, Federal Deposit Insurance materials you will be requesting will comments. You may do so by calling Corporation, 550 17th Street, NW., assist us in serving you.) We schedule (202) 874–4700. Upon arrival, visitors Washington, DC 20429. appointments on business days between will be required to present valid • Hand Delivery: Comments may be 10 a.m. and 4 p.m. In most cases, government-issued photo identification hand delivered to the guard station at appointments will be available the next and to submit to security screening in the rear of the 550 17th Street Building business day following the date we order to inspect and photocopy (located on F Street) on business days receive a request. comments. between 7 a.m. and 5 p.m. Additionally, commenters may send a Board: You may submit comments, Public Inspection: All comments copy of their comments to the OMB which should refer to ‘‘Consolidated received will be posted without change desk officer for the agencies by mail to Reports of Condition and Income (FFIEC to http://www.fdic.gov/regulations/laws/ the Office of Information and Regulatory 031 and 041)’’ or ‘‘Report of Assets and federal/propose.html including any Affairs, U.S. Office of Management and Liabilities of U.S. Branches and personal information provided. Budget, New Executive Office Building, Agencies of Foreign Banks (FFIEC 002) Comments may be inspected at the FDIC Room 10235, 725 17th Street, NW., and Report of Assets and Liabilities of Public Information Center, Room E– Washington, DC 20503, or by fax to a Non-U.S. Branch that is Managed or 1002, 3501 Fairfax Drive, Arlington, VA (202) 395–6974. Controlled by a U.S. Branch or Agency 22226, between 9 a.m. and 5 p.m. on FOR FURTHER INFORMATION CONTACT: For of a Foreign (Non-U.S.) Bank (FFIEC business days. further information about the revisions 002S),’’ by any of the following methods: OTS: You may submit comments, discussed in this notice, please contact • Agency Web Site: http:// identified by ‘‘1550–0023 (TFR: any of the agency clearance officers www.federalreserve.gov. Follow the Schedule DI Revisions),’’ by any of the whose names appear below. In addition, instructions for submitting comments following methods: copies of the Call Report, FFIEC 002,

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and FFIEC 002S forms can be obtained Estimated Time per Response: 40.18 banks), 12 U.S.C. 1464 (for savings at the FFIEC’s Web site (http:// burden hours. associations), and 12 U.S.C. 3105(c)(2), www.ffiec.gov/ffiec_report_forms.htm). Estimated Total Annual Burden: 1817(a), and 3102(b) (for U.S. branches Copies of the TFR can be obtained from 771,456 burden hours. and agencies of foreign banks). Except the OTS’s Web site (http:// The estimated time per response for for selected data items, the Call Report, www.ots.treas.gov/ the Call Report is an average that varies the TFR, and the FFIEC 002 are not main.cfm?catNumber=2&catParent=0). by agency because of differences in the given confidential treatment. The FFIEC OCC: Mary H. Gottlieb, OCC composition of the institutions under 002S is given confidential treatment [5 Clearance Officer, (202) 874–5090, each agency’s supervision (e.g., size U.S.C. 552(b)(4)]. Legislative and Regulatory Activities distribution of institutions, types of Abstracts Division, Office of the Comptroller of activities in which they are engaged, the Currency, 250 E Street, SW., and existence of foreign offices). The Call Report and TFR: Institutions Washington, DC 20219. average reporting burden for the Call submit Call Report and TFR data to the Board: Cynthia Ayouch, Acting Report is estimated to range from 16 to agencies each quarter for the agencies’ Federal Reserve Board Clearance 655 hours per quarter, depending on an use in monitoring the condition, Officer, (202) 452–3829, Division of individual institution’s circumstances performance, and risk profile of Research and Statistics, Board of and without considering proposed individual institutions and the industry Governors of the Federal Reserve revisions to the Call Report that the as a whole. Call Report and TFR data System, 20th and C Streets, NW., OCC, the Board, and the FDIC have provide the most current statistical data Washington, DC 20551. separately proposed to implement in available for evaluating institutions’ Telecommunications Device for the Deaf March 2011.1 corporate applications, for identifying (TDD) users may call (202) 263–4869. 2. Report Title: Thrift Financial areas of focus for both on-site and off- FDIC: Gary A. Kuiper, Counsel, (202) Report (TFR). site examinations, and for monetary and 898–3877, Legal Division, Federal Form Number: OTS 1313 (for savings other public policy purposes. The Deposit Insurance Corporation, 550 17th associations). agencies use Call Report and TFR data Street, NW., Washington, DC 20429. Frequency of Response: Quarterly; in evaluating interstate merger and OTS: Ira L. Mills, OTS Clearance Annually. acquisition applications to determine, as Officer, at [email protected], (202) Affected Public: Business or other for- required by law, whether the resulting 906–6531, or facsimile number (202) profit. institution would control more than ten 906–6518, Regulations and Legislation percent of the total amount of deposits Division, Chief Counsel’s Office, Office OTS of insured depository institutions in the of Thrift Supervision, 1700 G Street, OMB Number: 1550–0023. United States. Call Report and TFR data NW., Washington, DC 20552. Estimated Number of Respondents: are also used to calculate all SUPPLEMENTARY INFORMATION: The 753 savings associations. institutions’ deposit insurance and agencies are proposing to revise the Call Estimated Time per Response: 37.5 Financing Corporation assessments, Report, the TFR, the FFIEC 002, and the burden hours. national banks’ semiannual assessment FFIEC 002S, which are currently Estimated Total Annual Burden: fees, and the OTS’s assessments on approved collections of information. 179,676 burden hours. savings associations. 1. Report Title: Consolidated Reports 3. Report Titles: Report of Assets and FFIEC 002 and FFIEC 002S: On a of Condition and Income (Call Report). Liabilities of U.S. Branches and quarterly basis, all U.S. branches and Form Number: Call Report: FFIEC 031 Agencies of Foreign Banks; Report of agencies of foreign banks are required to (for banks with domestic and foreign Assets and Liabilities of a Non-U.S. file the FFIEC 002, which is a detailed offices) and FFIEC 041 (for banks with Branch that is Managed or Controlled by report of condition with a variety of domestic offices only). a U.S. Branch or Agency of a Foreign supporting schedules. This information Frequency of Response: Quarterly. (Non-U.S.) Bank. is used to fulfill the supervisory and Affected Public: Business or other for- Form Numbers: FFIEC 002; FFIEC regulatory requirements of the profit. 002S. International Banking Act of 1978. The data are also used to augment the bank OCC Board credit, loan, and deposit information OMB Number: 1557–0081. OMB Number: 7100–0032. needed for monetary policy and other Estimated Number of Respondents: Frequency of Response: Quarterly. public policy purposes. The FFIEC 002S 1,494 national banks. Affected Public: U.S. branches and is a supplement to the FFIEC 002 that Estimated Time per Response: 50.15 agencies of foreign banks. collects information on assets and burden hours. Estimated Number of Respondents: liabilities of any non-U.S. branch that is Estimated Total Annual Burden: FFIEC 002–240; FFIEC 002S–60. managed or controlled by a U.S. branch 299,696 burden hours. Estimated Time per Response: FFIEC or agency of the foreign bank. Managed Board 002–25.07 hours; FFIEC 002S–6 hours. or controlled means that a majority of the responsibility for business decisions OMB Number: 7100–0036. Estimated Total Annual Burden: Estimated Number of Respondents: FFIEC 002–24,067 hours; FFIEC 002S– (including, but not limited to, decisions 841 State member banks. 1,440 hours. with regard to lending or asset management or funding or liability Estimated Time per Response: 55.54 General Description of Reports burden hours. management) or the responsibility for Estimated Total Annual Burden: These information collections are recordkeeping in respect of assets or 186,837 burden hours. mandatory: 12 U.S.C. 161 (for national liabilities for that foreign branch resides banks), 12 U.S.C. 324 (for State member at the U.S. branch or agency. A separate FDIC banks), 12 U.S.C. 1817 (for insured State FFIEC 002S must be completed for each OMB Number: 3064–0052. nonmember commercial and savings managed or controlled non-U.S. branch. Estimated Number of Respondents: The FFIEC 002S must be filed quarterly 4,800 insured State nonmember banks. 1 75 FR 60497 (September 30, 2010). along with the U.S. branch or agency’s

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FFIEC 002. The data from both reports insure the net amount that any appropriate level of the Deposit are used for: (1) Monitoring deposit and depositor at an insured depository Insurance Fund’s contingent loss credit transactions of U.S. residents; (2) institution maintains in a noninterest- reserve for anticipated failures of monitoring the impact of policy bearing transaction account,’’ thereby in insured depository institutions. Unless changes; (3) analyzing structural issues effect replacing the FDIC’s TAG the unlimited insurance coverage of concerning foreign bank activity in U.S. program. Section 343 includes a noninterest-bearing transaction accounts markets; (4) understanding flows of definition of ‘‘noninterest-bearing under Section 343 of the Dodd-Frank banking funds and indebtedness of transaction account’’ that differs from Act is extended, the two proposed new developing countries in connection with the definition of this term in the FDIC’s items would be collected only through data collected by the International TAG program regulations.4 In addition, the December 31, 2012, report date. Monetary Fund and the Bank for the unlimited insurance coverage of Institutions participating in the International Settlements that are used these accounts applies to all insured FDIC’s TAG program should note that, in economic analysis; and (5) assisting depository institutions, not just those for purposes of determining their TAG in the supervision of U.S. offices of institutions that elected to obtain program assessments for the fourth foreign banks. The Federal Reserve insurance coverage for noninterest- calendar quarter of 2010 (which will be System collects and processes these bearing transaction accounts through payable on March 30, 2011), they must reports on behalf of the OCC, the Board, the FDIC’s TAG program. Under Section complete the existing TAG program data and the FDIC. 343, the unlimited insurance coverage items—Call Report Schedule RC–O, of noninterest-bearing transaction Memorandum items 4.a and 4.b; TFR Current Actions accounts would be in effect through Schedule DI, items DI570 and DI575; or The agencies are proposing to add two December 31, 2012. FFIEC 002 Schedule O, Memorandum items to the schedules in the Call As a result of this statutory change in items 4.a and 4.b, as appropriate—for Report, the TFR, and the FFIEC 002 for deposit insurance coverage for the final time in their December 31, collecting data related to deposit noninterest-bearing transaction 2010, reports. These items capture the insurance assessments and to revise the accounts, the agencies requested average daily amount and average daily instructions for an existing item in these comment on September 3, 2010 on a number for the quarter of qualifying schedules effective December 31, 2010. proposal to add two items to the noninterest-bearing transaction accounts These changes respond to amendments schedules in the Call Report, the TFR, of more than $250,000 as defined in the made to the Federal Deposit Insurance and the FFIEC 002 in which data are FDIC’s TAG program regulations. Act (FDI Act) by Section 343 of the collected for deposit insurance As a result of the unlimited insurance Dodd-Frank Wall Street Reform and assessment purposes (Schedule RC–O, coverage for noninterest-bearing Consumer Protection Act (Dodd-Frank Schedule DI, and Schedule O, transaction accounts effective December Act) (Pub. L. 111–203, July 21, 2010) respectively) effective December 31, 31, 2010, the agencies also requested pertaining to the insurance of 2010.5 As of that report date, all insured comment on September 3, 2010, on a transaction accounts. depository institutions, including those proposed revision of the instructions for In October 2008, the FDIC Board of institutions that had not elected to reporting estimated uninsured deposits Directors adopted the Transaction participate in the FDIC’s TAG program, in Call Report Schedule RC–O, Account Guarantee (TAG) program as would begin to report the quarter-end Memorandum item 2; TFR Schedule DI, one of two components of a Temporary amount and number of noninterest- item DI210; and FFIEC 002 Schedule O, Liquidity Guarantee Program (TLGP).2 bearing transaction accounts (as defined Memorandum item 2.7 These items are Under the TAG program the FDIC in the Dodd-Frank Act, not as defined required to be completed by institutions guarantees all funds held at in the FDIC’s TAG program regulations) with $1 billion or more in total assets. participating insured depository of more than $250,000. These data are At present, balances in TAG program institutions (beyond the maximum needed in order for the FDIC to estimate qualifying noninterest-bearing deposit insurance limit) in qualifying the quarter-end amount of insured transaction accounts of more than noninterest-bearing transaction deposits for reserve ratio calculation $250,000 are treated as uninsured accounts, which include certain purposes 6 and to determine the deposits for purposes of reporting interest-bearing NOW accounts. estimated uninsured deposits because Originally set to expire on December 31, 4 As defined in Section 343, a ‘‘noninterest- the TAG program was instituted as a 2009, the TAG program has since been bearing transaction account’’ is an account ‘‘(I) with component of the TLGP, which resulted extended, with certain modifications, respect to which interest is neither accrued nor paid; (II) on which the depositor or account holder from a systemic risk determination. through December 31, 2010, with the is permitted to make withdrawals by negotiable or Thus, TAG program insurance coverage possibility of an additional 12-month transferable instrument, payment orders of and assessments are separate from the extension, through December 31, 2011.3 withdrawal, telephone or other electronic media regular deposit insurance program Section 343 of the Dodd-Frank Act transfers, or other similar items for the purpose of making payments or transfers to third parties or administered by the FDIC. Under the amends the FDI Act with respect to the others; and (III) on which the insured depository Dodd-Frank Act, the extension of insurance coverage of noninterest- institution does not reserve the right to require unlimited insurance coverage to bearing transaction accounts. These advance notice of an intended withdrawal.’’ In noninterest-bearing transaction accounts amendments take effect December 31, contrast, under the FDIC’s TAG program, the term ‘‘noninterest-bearing transaction account’’ includes at all insured depository institutions 2010, and require the FDIC to ‘‘fully not only those accounts within the scope of Section falls within the FDIC’s regular deposit 343 but also accounts commonly known as Interest insurance program. Therefore, in 2 To administer the TLGP, the FDIC Board on Lawyers Trust Accounts (or functionally response to this statutory change in approved an interim rule on October 23, 2008, an equivalent accounts) and negotiable order of amendment to the interim rule on November 4, withdrawal accounts with interest rates no higher insurance coverage, the instructions for 2008, and a final rule on November 21, 2008. See than 0.25 percent for which the institution at which reporting estimated uninsured deposits 73 FR 64179 (October 29, 2008), 73 FR 66160 the account is held has committed to maintain the in the Call Report, TFR, and FFIEC 002 (November 7, 2008), and 73 FR 72244 (November interest rate at or below 0.25 percent. items identified above would be revised 26, 2008), respectively. 5 75 FR 54227 (September 3, 2010). 3 See 74 FR 45093 (September 1, 2009), 75 FR 6 The Deposit Insurance Fund’s reserve ratio is to indicate that balances of more than 20257 (April 19, 2010), and 75 FR 36506 (June 28, the fund’s balance divided by estimated insured 2010). deposits. 7 75 FR 54227 (September 3, 2010).

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$250,000 in noninterest-bearing (a) Whether the proposed revisions to Dated: November 3, 2010. transaction accounts (as defined in the the collections of information that are Michele Meyer, Dodd-Frank Act) should be treated as the subject of this notice are necessary Assistant Director, Legislative and Regulatory insured, rather than uninsured, for the proper performance of the Activities Division, Office of the Comptroller deposits. Unless the unlimited agencies’ functions, including whether of the Currency. insurance coverage of noninterest- the information has practical utility; Board of Governors of the Federal Reserve (b) The accuracy of the agencies’ bearing transaction accounts under System, November 3, 2010. Section 343 of the Dodd-Frank Act is estimates of the burden of the extended, this instructional revision information collections as they are Jennifer J. Johnson, would be in effect only through the proposed to be revised, including the Secretary of the Board. December 31, 2012, report date. validity of the methodology and Dated at Washington, DC, on November 3, The agencies received no comments assumptions used; 2010. on their proposal to collect the quarter- (c) Ways to enhance the quality, Federal Deposit Insurance Corporation. end amount and number of noninterest- utility, and clarity of the information to Robert E. Feldman, bearing transaction accounts (as defined be collected; Executive Secretary. in the Dodd-Frank Act) of more than (d) Ways to minimize the burden of $250,000 and to revise the instructions information collections on respondents, Dated: November 3, 2010. for reporting estimated uninsured including through the use of automated Ira L. Mills, deposits in the Call Report, the TFR, collection techniques or other forms of Paperwork Clearance Officer, Office of Chief and the FFIEC 002 effective December information technology; and Counsel, Office of Thrift Supervision. 31, 2010. Accordingly, the agencies will (e) Estimates of capital or start up [FR Doc. 2010–28208 Filed 11–8–10; 8:45 am] implement these revisions as proposed, costs and costs of operation, BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P; subject to OMB approval. maintenance, and purchase of services 6720–01–P to provide information. Request for Comment Comments submitted in response to Public comment is requested on all this joint notice will be shared among aspects of this joint notice. Comments the agencies. All comments will become are invited on: a matter of public record.

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Part II

Department of Transportation Federal Railroad Administration 49 CFR Part 225 Miscellaneous Amendments to the Federal Railroad Administration’s Accident/ Incident Reporting Requirements; Final Rule

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DEPARTMENT OF TRANSPORTATION reports to FRA. The Companion Guide Accident Reports Act afforded the ICC is posted on FRA’s Web site at http:// authority to promulgate regulations to Federal Railroad Administration safetydata.fra.dot.gov/officeofsafety. carry out the reporting provisions of the Accident Reports Act. 49 CFR Part 225 II. Background In 1960, the Accident Reports Act was [Docket No. FRA–2006–26173; Notice No. A. Statutory Authority for the Accident/ amended to remove language in Section 3] Incident Reporting Requirements in 49 1 conferring rulemaking authority on CFR Part 225 (Part 225) the ICC to require railroads to (‘‘report RIN 2130–AB82 * * * under such rules and regulations FRA’s accident/incident reporting as may be prescribed by the [ICC]’’) and requirements 1 in Part 225, both as they Miscellaneous Amendments to the to add to Section 5 clearer language Federal Railroad Administration’s exist today and as they are amended by conferring that rulemaking authority Accident/Incident Reporting this final rule, were issued under the (‘‘The [ICC] is authorized to prescribe Requirements statutory authority of the following such rules and regulations and such three statutes: 2 AGENCY: Federal Railroad • forms for making the reports herein 49 U.S.C. 20901 (formerly, part of before provided as are necessary to Administration (FRA), Department of the Accident Reports Act); Transportation (DOT). • implement and effectuate the purpose of 49 U.S.C. 20103(a) (formerly, part of this Act.’’). Public Law 86–762 ACTION: Final rule. the Federal Railroad Safety Act of 1970); (September 13, 1960), 74 Stat. 903. In and 1966, the Department of Transportation SUMMARY: This final rule revises FRA’s • 49 U.S.C. 322(a) (formerly, part of existing regulations addressing Act transferred the responsibility for the Department of Transportation Act). prescribing regulations to carry out the accident/incident reporting in order to The Accident Reports Act was clarify ambiguous regulations and to 3 Accident Reports Act, as amended, from enacted in 1910, Public Law 165, the the ICC to the Secretary of enhance the quality of information Act of May 6, 1910, ch. 208, 36 Stat. 350 available for railroad casualty analysis. Transportation. Sec. 6(e)(1)(K) of Public (1910). Section 1 of the Accident Law 89–670 (October 15, 1966), 80 Stat. In addition, FRA has revised the FRA Reports Act required— Guide for Preparing Accident/Incident 939. In addition, the Secretary delegated Reports (FRA Guide), its accident/ every common carrier engaged in interstate this responsibility to the Administrator incident recording and reporting forms or foreign commerce by railroad to make to of the Federal Railroad Administration the Interstate Commerce Commission [ICC] by regulation. 49 CFR 1.49(c)(11). Later, and its Companion Guide: Guidelines * * * a monthly report, under oath, of all for Submitting Accident/Incident in 1988, the Accident Reports Act was collisions, derailments, or other accidents amended so as to expand its Reports by Alternative Methods arising from the operation of such railroad (Companion Guide). under such rules and regulations as may be applicability from ‘‘common carriers engaged in interstate commerce by DATES: The final rule is effective prescribed by the [ICC,] which report shall railroad’’ to include all ‘‘railroads.’’ Sec. Wednesday, June 1, 2011. state the nature and causes thereof and the circumstances connected therewith * * *. 15 of Public Law 100–342 (June 22, FOR FURTHER INFORMATION CONTACT: 1988), 102 Stat. 633. The same Emphasis added. In addition, Section 5 Arnel B. Rivera, Staff Director, U.S. legislation required railroads to include of the Accident Reports Act authorized Department of Transportation, Federal in any of their reports that assigned the ICC ‘‘to prescribe for such common Railroad Administration, Office of employee error as a cause of an carriers a method and form for making Safety Analysis, RRS–22, Mail Stop 25, accident/incident to include, at the the reports hereinbefore provided.’’ West Building 3rd Floor, Room W33– employee’s option, a statement Together, Sections 1 and 5 of the 306, 1200 New Jersey Avenue, SE., ‘‘explaining any factors the employee Washington, DC 20590 (telephone: 202– alleges contributed to the accident or 493–1331); or Gahan Christenson, Trial 1 The discussion under this section (II)(A) concerns the statutory authority for the reporting incident.’’ Id. at Sec. 24. Attorney, U.S. Department of provisions of Part 225 only, e.g., 49 CFR 225.11 and In 1994, the Accident Reports Act, as Transportation, Federal Railroad 225.21, and does not address the statutory authority amended (then codified at 45 U.S.C. 38– Administration, Office of Chief Counsel, for the penalty, investigative, or other provisions of 43a), along with virtually all of the other RCC–10, Mail Stop 10, West Building Part 225. Federal railroad safety laws, was 3rd Floor, Room W31–204, 1200 New 2 This final rule adds a fourth statute to the statutory foundation for the accident/incident repealed, and its provisions were Jersey Avenue, SE., Washington, DC reporting requirements in Part 225: 28 U.S.C. 1746, revised, reenacted as positive law, and 20590 (telephone: 202–493–1381). Unsworn declarations under penalty of perjury. recodified without substantive change at SUPPLEMENTARY INFORMATION: Public Law 94–550, sec. 1(a), Oct. 18, 1976, 90 Stat. 49 U.S.C. 20901–20903, Accidents and 2534. Pursuant to that statute, the requirement in 49 U.S.C. 20901 that accident reports be submitted Incidents, with its penalty provisions in I. The FRA Guide and the Companion 49 U.S.C. chapter 213, Penalties, Public Guide ‘‘under oath’’ (and, therefore, signed and notarized) has been converted into one of two alternative Law 103–272, 108 Stat. 745 (July 5, In addition to revising its regulations requirements, the second being submission of a 1994). During the 1994 recodification of in the Code of Federal Regulations, FRA signed, unsworn declaration saying that it is being the rail safety laws, Congress repealed, made subject to penalty of perjury. has revised the FRA Guide. The FRA 3 Federal requirements that railroads report their but did not reenact or recodify the text Guide is posted on FRA’s Web site at accidents date back to before 1910, as evidenced by of Section 5 of the Accident Reports http://safetydata.fra.dot.gov/ two provisions in the Accident Reports Act as Act, as amended (then codified at 45 officeofsafety. Hard copies of the FRA originally enacted. The first section of the Accident U.S.C. 42), which authorized the Reports Act contained a proviso that relieved Guide will be available upon request. carriers ‘‘from the duty of reporting accidents in Secretary ‘‘to prescribe such rules and Information on requesting hard copies their annual financial and operating reports made regulations and such forms for making of the FRA Guide can be found in to the commission[,]’’ and Section 6 repealed an the reports hereinbefore provided as are § 225.21, ‘‘Forms,’’ of this final rule. accident reporting law enacted in 1901, ‘An Act necessary to implement and effectuate requiring common carriers * * * to make full FRA has also revised its Companion reports of all accidents to the Interstate Commerce the purposes of [the Accident Reports Guide containing instructions for Commission.‘ Approved March third, nineteen Act].’’ Congress concluded that this electronically submitting monthly hundred and one * * *’’ section was ‘‘[un]necessary because of

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49 [U.S.C.] 322(a).’’ See H.R. Rep. No. Under 49 U.S.C. 322(a), an officer of the 80–3495, 1982). In doing so, the 103–180, 502, 584 (1993); reprinted in Department of Transportation may Commission indicated that employee 1994 U.S.C.C.A.N. 1319, 1401. Although prescribe regulations to carry out the injury and illness recordkeeping does Public Law 103–272 was not intended duties of the officer. Section 103(d) of not come within the purview of section to change the substance of the laws as title 49, U.S. Code, provides that the 4(b)(1) of the OSH Act and, therefore, recodified, this is an example of how its head of the FRA is the Administrator, OSHA’s jurisdiction has not been repeal of an ‘‘unnecessary’’ law and the Administrator of FRA is an displaced by FRA’s employee injury and apparently changed the statutory basis ‘‘officer of the Department of illness recordkeeping and reporting of a regulation. Of course, recodification Transportation,’’ within the meaning of regulations. Nevertheless, the did not change any law substantively, so 49 U.S.C. 322(a). Section 103(g)(1) of Commission did state, ‘‘[t]his does not in a sense, Section 5 of the Accident title 49, U.S. Code, provides that ‘‘the mean that railroad industry employers Reports Act survives to the extent that Administrator shall carry out—* * * must use the OSHA form, No. 200, it is legally necessary. duties and powers related to railroad mentioned in section [29 CFR] The preamble to this final rule refers safety vested in the Secretary by * * * 1904.2(a). Section 1904.2(a) allows an to the current, recodified version of chapters 203–211 of this title, and by employer to maintain ‘an equivalent what was formerly known as the chapter 213 of this title for carrying out which is as readable and Accident Reports Act, by its section chapters 203 through 211.’’ comprehensible [as the OSHA 200 form] 4 numbers in title 49 of the U.S. Code. Consequently, the duty of carrying out to a person not familiar with it.’ ’’ Currently, § 20901 requires, in part, that 49 U.S.C. chapter 209 is clearly one of Under OSHA’s current regulations, 49 railroad carriers file with the Secretary the ‘‘duties of the officer,’’ within the CFR 1904.3 states that ‘‘[i]f you create of Transportation reports on ‘‘all meaning of 49 U.S.C. 322(a). records to comply with another accidents and incidents resulting in Accordingly, the FRA Administrator government agency’s injury and illness injury or death to an individual or may prescribe regulations to carry out recordkeeping requirements, OSHA will damage to equipment or a roadbed 49 U.S.C. chapter 209. consider those records as meeting OSHA’s Part 1904 recordkeeping arising from the carrier’s operations B. Occupational Safety and Health Act during the month.’’ requirements if OSHA accepts the other Although not a statutory authority for agency’s records under a memorandum The second major statutory authority the accident/incident reporting of understanding with that agency, or if for the accident/incident reporting requirements of Part 225, the the other agency’s records contain the requirements in Part 225 is 49 U.S.C. Occupational Safety and Health Act same information as this Part 1904 20103, formerly § 202 of the Federal (OSH Act), which Congress enacted in requires you to record.’’ Accordingly, Railroad Safety Act of 1970 (FRSA). 1970, has shaped these requirements. because FRA’s employee injury and Public Law 91–458 (October 16, 1970), Public Law 91–596, codified as illness recordkeeping and reporting 84 Stat. 971. Like the Accident Reports amended at 29 U.S.C. 651 et seq. While requirements employ equivalent Act, the FRSA was repealed in 1994, the OSH Act gives the Secretary of standards to those promulgated by and its provisions were revised, Labor a broad, general authority to OSHA, OSHA does not require railroad reenacted as positive law, and regulate working conditions that affect carriers to maintain OSHA records in recodified without substantive change the occupational safety and health of addition to FRA records. Rather, primarily at 49 U.S.C. chapter 201, with employees, it also recognized the railroad carriers are only required to penalty provisions in 49 U.S.C. chapter existence of similar authority in other report employee injuries and illnesses to 213. As amended, 49 U.S.C. 20103(a) Federal agencies. Section 4(b)(1) of the FRA in accordance with FRA’s provides, in pertinent part, that ‘‘[t]he OSH Act, codified at 29 U.S.C. regulations. FRA makes all railroad Secretary of Transportation, as 653(b)(1), provides that the OSH Act employee injury and illness data necessary, shall prescribe regulations shall not apply to working conditions as available to OSHA for use in its and issue orders for every area of to which another Federal agency complementary program of regulation, railroad safety supplementing laws and exercises statutory authority to prescribe and provides this data to the Bureau of regulations in effect on October 16, or enforce standards or regulations Labor Statistics (BLS) each year for 1970.’’ The Secretary also delegated this affecting occupational safety or health. inclusion in the Department of Labor’s authority to the Administrator of FRA. Because FRA exercises statutory national occupational injury and illness 49 CFR 1.49(m). In 1974, FRA reissued authority to prescribe and enforce database. its accident reporting regulations under standards and regulations for all areas of the added authority of the FRSA to railroad safety under 49 U.S.C. chapter C. Overview of Part 225 and Recent cover additional railroads and require 201, OSHA’s jurisdiction may be Amendments reporting of occupational illnesses. 39 preempted by FRA under section 4(b)(1) Part 225 contains a series of specific FR 43222, December 11, 1974. of the OSH Act with regards to certain accident/incident recording and The third major statutory authority for matters related to railroad safety. See reporting requirements. The purpose of the accident/incident reporting Policy Statement asserting FRA FRA’s accident/incident recordkeeping requirements in Part 225 is 49 U.S.C. jurisdiction over matters involving the and reporting regulations is ‘‘to provide 322(a), which was enacted in 1966, and safety of railroad operations, 43 FR the Federal Railroad Administration codified in § 9(e) of the Department of 10584, March 14, 1978. with accurate information concerning Transportation Act. The statutory With respect to employee injury and the hazards and risks that exist on the provision at 49 U.S.C. 322(a) reads as illness recordkeeping, however, OSHA’s Nation’s railroads. FRA needs this follows: Occupational Safety and Health Review information to effectively carry out its Commission ruled that the railroad The Secretary of Transportation may statutory responsibilities under 49 prescribe regulations to carry out the duties industry must comply with OSHA U.S.C. chapters 201–213. FRA also uses and powers of the Secretary. An officer of the requirements and must afford the this information for determining Department of Transportation may prescribe Secretary of Labor’s representatives regulations to carry out the duties and access to these records. Secretary of 4 It should be noted that the OSHA 200 form has powers of the officer. Labor v. Conrail (OSHRC Docket No. been subsequently renamed as the OSHA 300 form.

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comparative trends of railroad safety The NPRM further requested from individuals, listed in alphabetical and to develop hazard elimination and comments and suggestions on four order: risk reduction programs that focus on issues of concern. First, FRA requested • American Association for Justice (AAJ); preventing railroad injuries and comments and suggestions for any • Association for American Railroads accidents.’’ 49 CFR 225.1. Part 225’s additional information that might be (AAR); central provision requires that each gathered on Form FRA F 6180.57, • American Train Dispatchers Association railroad subject to Part 225 submit to ‘‘Highway-Rail Grade Crossing (ATDA); FRA monthly reports of all accidents Accident/Incident Report,’’ that would • BNSF Railway Company (BNSF); • and incidents that meet FRA’s reporting be useful in determining how and why Brotherhood of Locomotive Engineers and Trainmen (BLET); criteria. 49 CFR 225.11. Railroad highway-rail grade crossing accidents/ • Brotherhood of Maintenance of Way accidents/incidents are divided into incidents occur. Second, FRA requested Employees Division (BMWED); three groups, each of which corresponds comments and suggestions on whether • Brotherhood of Railroad Signalman to the type of reporting form that a FRA should require railroads to (BRS); railroad must file with FRA: (1) complete the longitude and latitude • California Public Utilities Commission Highway-rail grade crossing accidents/ blocks on Form FRA F 6180.55a, (CPUC); incidents; (2) rail equipment accidents/ ‘‘Railroad Injury and Illness Summary • U.S. Department of Labor (DOL); • incidents; and (3) deaths, injuries and (Continuation Sheet)’’ (blocks 5s and 5t), Illinois Commerce Commission/ occupational illnesses. See 49 CFR for reportable trespasser casualties only, Transportation Bureau/Rail Safety Section (ICC); 225.19. and on Form FRA F 6180.54, ‘‘Rail • Kansas City Southern Railway Company In 1996, FRA published extensive Equipment Accident/Incident Report’’ (KCS); amendments to its accident/incident (blocks 50 and 51). Third, FRA • Metro-North Commuter Railroad reporting regulations. 61 FR 30940, June requested comments and suggestions on Company (MNCW); 18, 1996; 61 FR 67477, December 23, whether FRA should change the method • National Railroad Passenger Corporation 1996. This was the first major revision by which telephonic reports of (Amtrak); of the accident/incident reporting accidents/incidents, as required by • New York State Metropolitan requirements since 1974. The primary § 225.9, are made to FRA. Fourth, FRA Transportation Authority (NYSMT); • NJ Transit Rail Operations (NJT); purpose of the revision was to increase requested comments and suggestions on • the accuracy, completeness, and utility Norfolk Southern Corporation (NS); whether FRA should require railroads to • Southeastern Pennsylvania of FRA’s accident database and to report to FRA on Form FRA F 6180.55a Transportation Authority (SPTA); clarify certain definitions and regulatory suicides and attempted suicides, • Union Pacific Railroad Company (UP); requirements. Among other things, these otherwise referred to as ‘‘suicide data,’’ and amendments required railroads to adopt and on concerns regarding State access • United Transportation Union (UTU). and comply with an Internal Control to such reports. As an initial matter, when developing Plan (ICP) to ensure accurate reporting On September 10, 2008, during the this final rule, FRA carefully considered of accidents and incidents. 36th Railroad Safety Advisory all of the comments, information, data, In 2003, FRA again published Committee (RSAC) meeting, RSAC Task and proposals submitted to Docket No. extensive amendments to its accident/ No. 2008–02 was presented for FRA–2006–26173 and discussed during incident reporting regulations (FRA’s acceptance. The task offered to the the hearing. In addition, FRA’s 2003 Final Rule). 68 FR 10107–10140, RSAC for consideration was to review extensive knowledge and experience March 3, 2003. The primary purpose of comments received on FRA’s NPRM and with enforcing the existing accident/ these revisions was to conform FRA’s would have allowed the RSAC to make incident reporting regulations was also accident/incident reporting recommendations for the content of the relied upon when developing this final requirements to OSHA’s newly revised final rule. The task was withdrawn at rule. FRA addresses the comments in occupational injury and illness the meeting without RSAC acceptance. recording and reporting requirements. Following publication of the NPRM in the Section-by-Section Analysis of this 66 FR 5916–6135, January 19, 2001 the Federal Register, FRA held a public final rule and elsewhere as appropriate. One such comment to the NPRM (codified at 29 CFR Parts 1904 and hearing in Washington, DC on December stated that FRA should have used an 1952) (OSHA’s 2001 Final Rule). FRA’s 18, 2008, and extended the comment RSAC working group for this 2003 Final Rule also addressed other period for an additional thirty (30) days rulemaking. FRA, however, is not issues and provided for an alternative following the hearing. The hearing required to engage the RSAC in method of recording claimed enabled the exchange of information formulating regulations. Here, as occupational illnesses with the advent regarding FRA’s proposed amendments, discussed above, FRA held a hearing of Form FRA F 6180.107, ‘‘Alternative and allowed the public to articulate and provided two comment periods Record for Illness Claimed to be Work- their issues and concerns regarding the during which interested parties had Related.’’ NPRM, so that such concerns could be addressed in the final rule. The hearing opportunities to comment on the NPRM. III. Proceedings to Date was attended by a number of railroads, IV. Section-by-Section Analysis On September 9, 2008, FRA published organizations representing railroads, a Notice of Proposed Rulemaking and labor organizations. FRA received Technical Amendment (NPRM), which proposed miscellaneous oral and written testimony at the Throughout the rule text, this final amendments to FRA’s accident/incident hearing as well as written comments rule updates the agency’s address and reporting regulations in order to clarify during the extended comment period. A other mailing addresses, when ambiguous regulations and to enhance copy of the hearing transcript was appropriate, to reflect FRA’s relocation the quality of information available for placed in Docket No. FRA–2006–26173 to the new U.S. Department of railroad casualty analysis. See 73 FR on http://www.regulations.gov. During Transportation headquarters building. 52496. The NPRM also proposed the initial and extended comment This revision affects §§ 225.7(a), revisions to the 2003 FRA Guide and period, FRA received comments and 225.11(b), 225.12(g)(3), and the FRA’s Accident/Incident recording and heard testimony from the following introductory paragraph of § 225.21. This reporting forms. organizations, in addition to comments change is also reflected in the FRA

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Guide, the accident/incident reporting and others, that is not associated with than the term ‘‘highway user.’’ The final and recording forms, and the a public highway, road, street, or a rule does not adopt this suggestion in Companion Guide. private roadway, crosses one or more order to maintain consistency between railroad tracks at grade. The definition the terms ‘‘highway user’’ and ‘‘highway- § 225.1 Purpose. of ‘‘highway-rail grade crossing’’ further rail grade crossing.’’ A comment also The final rule removes the provides that the term ‘‘sidewalk’’ means sought clarification that there are no preemption language dealing with part that portion of a street between the curb exceptions to reporting collisions 225 from this section. FRA believes that line, or the lateral line of a roadway, and between on-track equipment and this language is unnecessary because 49 the adjacent property line or, on highway users. FRA believes that the U.S.C. 20106 sufficiently addresses the easements of private property, that final rule is clear that any impact preemptive effect of FRA’s regulations. portion of a street that is paved or between a highway user and on-track Providing a separate Federal regulatory improved and intended for use by equipment at a highway-rail grade provision concerning the regulation’s pedestrians. The FRA Guide provides a crossing qualifies as a highway-rail preemptive effect is duplicative and diagram illustrating the definition of the grade crossing accident/incident and unnecessary. term sidewalk. See FRA Guide, Chapter that further clarification is not required. 2. In addition, the final rule provides A comment also recommended that § 225.3 Applicability. that the term ‘‘highway user’’ may impacts at highway-rail grade crossings In this section, the final rule makes a include an automobile, bus, truck, be referred to as ‘‘train-vehicle technical amendment to the motorcycle, bicycle, farm vehicle, collisions,’’ rather than ‘‘accidents/ introductory text of paragraph (b) with pedestrian, or any other mode of surface incidents.’’ The final rule does not adopt respect to that paragraph’s reference to transportation motorized and un- this suggestion because such an FRA’s required ICP elements. Currently, motorized. amendment is not consistent with the paragraph (b) refers only to ICP FRA does not believe that this historical use of such terms. elements 1 through 10. The final rule clarifying amendment increases the The final rule also amends paragraph revises the paragraph to include element burden on railroads because it is (3) of the definition of ‘‘Accident/ number 11 (added in FRA’s 2003 Final consistent with common industry incident’’ to conform to the revised Rule), which requires railroads to practice as well as FRA’s long-standing language in § 225.19(d) and to reference, include in their ICPs a statement that policy. Moreover, even if reporting rather than explicitly list, the general specifies the name, title, and address of accidents at such pathways was not reporting criteria set forth in § 225.19(d). the custodian of the railroad’s Form standard industry practice, any See Section-by-Section Analysis for FRA F 6180.107, ‘‘Alternative Record for increased burden would be nominal. § 225.19(d). Illnesses Claimed to be Work-Related’’ Based on the U.S. DOT National In the NPRM, FRA proposed records and all supporting Highway-Rail Crossing Inventory, FRA amending the definition of documentation, as well as the location estimates that there are approximately ‘‘Accountable injury or illness’’ to mean of such documents. See 68 FR 10107, 2,000 grade crossings in the United any abnormal condition or disorder of a 10139, March 3, 2003. States that are not associated with railroad employee that manifests within highways, roads, streets, or private the work environment and causes or § 225.5 Definitions. roadways and that very few highway- requires a railroad employee to be The final rule amends paragraph (1) of rail grade crossing accidents/incidents examined or treated by a qualified the definition of ‘‘Accident/incident’’ to occur at these locations each year. health care professional, but does not clarify the definition and to conform to Accordingly, even if this did place a meet the general reporting criteria listed the FRA Guide. In the NPRM, FRA set new burden on railroads to report in § 225.19(d)(1) through (d)(6) forth to clarify the definition of accidents/incidents not previously regardless of whether the condition or accident/incident with respect to reported, the burden would be disorder is discernably caused by an impacts at highway-rail grade crossings. insignificant in light of the small event or exposure in the work Commenters generally indicated that number of additional reports that would environment. further clarification was necessary be required. The final rule amends the definition regarding under what circumstances The final rule also clarifies that of ‘‘Accountable injury or illness’’ to sidewalks and pathways are considered sidewalks that may be used to cross conform to the amended definition of to be part of a highway-rail grade railroad tracks at grade are considered to ‘‘injury or illness;’’ to eliminate crossing site. be part of (i.e., associated with) the redundancy by removing the word In response to these comments, FRA highway-rail grade crossing. The ‘‘activity’’ from the phrase ‘‘by an event, determined that the proposed definition definition of sidewalk included in the exposure, or activity in the work required revision. As such, the final rule final rule clarifies which sidewalks are environment’’ as the amended definition provides that ‘‘Accident/incident’’ considered associated with the crossing. of ‘‘event or exposure’’ in the final rule means, in part, any impact between FRA does not believe this clarification includes activities; to eliminate railroad on-track equipment and a will result in any change to current potential underreporting of work-related highway user at a highway-rail grade railroad reporting practices. In addition, injuries and illnesses; to ensure that crossing. The final rule, elsewhere in the definition of the term ‘‘sidewalk’’ is potentially reportable injuries and § 225.5, defines the term ‘‘highway-rail based on the definition of the term as illnesses are documented, tracked, and grade crossing’’ to mean a location articulated in the 2009 edition of the evaluated for reporting and auditing where a public highway, road, street, or Federal Highway Administration’s purposes; and to delete the phrase ‘‘not a private roadway, including associated Manual on Uniform Traffic Control otherwise reportable’’ due to its sidewalks, crosses one or more railroad Devices. The FRA Guide includes an ambiguity. See Section-by-Section tracks at grade, or a location where a illustrative diagram to help clarify the Analysis for § 225.19(d), ‘‘Primary pathway explicitly authorized by a meaning of the term ‘‘sidewalk.’’ See groups of accidents/incidents; Death, public authority or a railroad carrier that FRA Guide, Chapter 2. injury and occupational illness.’’ The is dedicated for the use of non-vehicular A comment to the NPRM suggested final rule amends the definition of traffic, including pedestrians, bicyclists, that FRA use the term ‘‘road user’’ rather ‘‘Accountable injury or illness’’ to mean

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‘‘any abnormal condition or disorder of similarly concerned that some railroads the employee’s injury or illness but a railroad employee that causes or were not investigating pertinent additional investigation is necessary. requires the railroad employee to be information about employee injuries This approach creates an audit trail of examined or treated by a qualified and illnesses to make an accurate work- potentially work-related employee health care professional, regardless of relatedness determination. As a result, injuries and illnesses, and, because the whether or not it meets the general FRA believes that some railroads may railroad need not make a final reporting criteria listed in § 225.19(d)(1) have under-reported employee injuries determination regarding work through (d)(6), and the railroad and illnesses, and, because a Form FRA relatedness within seven days, provides employee claims that, or the railroad F 6180.98 was not completed to initially additional time for railroads to complete otherwise has knowledge that, an event record the injury or illness, no audit the work-related analysis. Moreover, or exposure arising from the operation trail was created. In such circumstances, this approach allows FRA to use the of the railroad is a discernable cause of FRA and the railroads were left unaware audit trail to better understand the abnormal condition or disorder.’’ of the potentially reportable or railroads’ reporting processes and their The language proposed in the NPRM accountable injury. Moreover, by only application of the applicable specified that an accountable injury or requiring a record for those casualties regulations. illness is one that ‘‘does not meet the that were ultimately determined to be FRA received numerous comments general reporting criteria.’’ The final rule work-related within the initial seven addressing the proposed definition of replaced this with ‘‘regardless of days period, FRA was prevented from ‘‘Accountable injury or illness.’’ Because whether or not it meets the general later evaluating the reportability of the of the language adopted in the final rule, reporting criteria’’ because an injury or injury or illness in order to determine a majority of those comments are no illness may eventually become whether the reporting officer made an longer applicable. At the hearing and in reportable or the railroad may not have appropriate reporting decision or the written comments, several railroads enough information at the time to whether the railroad complied with its and organizations representing labor determine whether the injury or illness duty to investigate the injury or illness. and railroads asserted that FRA’s is reportable. These are clarifications reporting requirements must be based In consideration of the comments and and do not pose any change to FRA’s upon work-relatedness and, therefore, FRA’s safety mission, the final rule accident/incident recording or reporting the proposed amendment was outside of contains a revised definition. The requirements. FRA’s authority. While FRA disagrees The purpose of Form FRA F 6180.98, definition contained in the final rule with this assertion, this issue is no ‘‘Railroad Employee Injury and/or triggers the railroads’ responsibility to longer relevant. FRA has been tasked Illness Record,’’ is to create an initial create a Form FRA F 6180.98 for (i.e., an with and given the authority to record of, and audit trail for, each accountable injury or illness) any prescribe regulations that ‘‘promote potentially reportable injury or illness. abnormal condition or disorder of a safety in every area of railroad As such, under the previous recording railroad employee that causes or operations and reduce railroad–related requirements, railroads were required to requires the railroad employee to be accidents and incidents.’’ 49 U.S.C. complete the Form FRA F 6180.98, examined or treated by a qualified 20102. Moreover, FRA has the authority ‘‘Railroad Employee Injury and/or health care professional regardless of to investigate ‘‘an accident or incident Illness Record,’’ for each accountable whether or not it meets the general resulting in serious injury to an and reportable injury or illness within reporting criteria in § 225.19(d), and the individual or to railroad property.’’ Id. seven (7) working days after first employee claims that, or the railroad As such, the proposed changes were becoming aware of the accountable or otherwise has knowledge that, the well within FRA’s authority as they reportable injury or illness. As a result, injury or illness is work-related. were meant to improve FRA’s safety under FRA’s 2003 Final Rule’s Therefore, the definition in the final data and to allow FRA to audit railroad definition of accountable and reportable rule eliminates the requirement that a reporting decisions. Finally, although injury and illness, a railroad had to railroad record all injuries or illnesses FRA makes every effort to maintain make an initial determination with based on manifestation regardless of consistent reporting requirements with regard to the work-relatedness of an cause. While railroads are still required those of OSHA, FRA’s accident/incident injury or illness within seven working to complete the Form FRA F 6180.98, recording requirements are based solely days. Once a railroad determined that ‘‘Railroad Employee Injury and/or on FRA’s program needs and purposes, an employee injury or illness was not Illness Record,’’ for each accountable and as such may differ from OSHA’s work-related, the railroad was not and reportable injury or illness within requirements to any extent FRA believes obligated to create any record or report seven working days after first becoming is necessary. of the casualty. aware of the accountable or reportable Comments by NJT, UP, and AAR, In many cases, injuries and illnesses, injury or illness, the revised definition among others, asserted that the and/or the signs and symptoms thereof, of accountable injury/illness will proposed amendments could increase manifest in the work environment alleviate the railroad’s need to make a the misclassification of data by without the cause(s) being readily final decision with regard to work- capturing too much information. As an apparent. Therefore, a railroad, during relatedness when an employee claims or initial matter, these comments its initial seven day investigation, may suspects that the injury or illness is in concerned the language proposed in the have determined that an injury or fact work-related and will ensure that a NPRM. Regardless, with respect to the illness was not work-related when record of each potentially reportable language in the final rule, railroads additional investigation and time would injury or illness is created. See Section- should already be reviewing all have shown that the injury or illness by-Section Analysis of § 225.25 for employee claimed or suspected work- was in fact work-related. Consequently, additional information. This approach related injuries and illnesses. FRA is FRA is concerned that some railroads helps to ensure that railroads record and simply requiring that the railroad are prematurely attributing the cause of thoroughly investigate injuries and document these suspected work-related an injury or illness solely to a non-work- illnesses where the employee claims injuries. related event or exposure occurring that an event or exposure in the work Many comments also stated that the outside the work environment. FRA was environment is a discernable cause of proposed changes are not connected to

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identifying safety hazards and that the to review the railroad’s decision making whether an injury or illness is work- previous reporting scheme did not process to better understand those related. Pursuant to § 225.17, ‘‘Doubtful result in underreporting. As explained disparities and to better understand cases,’’ FRA cannot delegate its above, the prior definition created an which safety measures are effective in authority to decide matters of judgment inadequate audit trail. In addition, FRA preventing certain types of injuries and when facts are in dispute. FRA must be believes that the prior reporting system illnesses. able to ensure that its accident/incident did result in underreporting due to the Commenters also argued that the data is complete and accurate. difficulties related to making a final proposed amendments were overly Consequently, the final reporting work-relatedness determination within burdensome, suggesting that railroads decision is FRA’s. AAR also stated that seven days for certain injuries and would have to record every minor injury if OSHA disagrees with an employer’s illnesses. Also, prior to this final rule, or illness, and that they may somehow decision, OSHA has the burden of when a railroad made an initial violate the Americans with Disabilities proving that the injury or illness was incorrect or premature recording Act (ADA), as railroads would be forced work-related. Consistent with OSHA, decision that an injury or illness was to follow up on and collect non-work- the FRA Guide explains that, once an not recordable, the reporting system did related medical information. Again, employer determines that an injury or not ensure that the railroad would catch these comments relate to the proposed illness is not reportable ‘‘and FRA the problem at a later time. Now, with language in the NPRM, thus, they are subsequently issues a citation for failure the clarification that when an employee not entirely applicable to the language to report, the Federal Government claims that, or railroad otherwise has adopted in the final rule. The final rule would have the burden of proving that knowledge that, an injury or illness is simply requires railroads to make a the injury or illness was work-related.’’ work-related, a railroad will be required record of each injury or illness that the See FRA Guide. To meet its burden, to record such injuries and illnesses. In employee suspects or claims, or the FRA must show that it is more likely addition, the final rule improves the railroad otherwise has knowledge that, than not that an event or exposure audit trail created by the railroads and is work-related. And, as noted, railroads arising from the operation of the better enables FRA to review reporting should already be investigating these railroad was a discernable cause of the decisions and to identify reporting potentially work-related injuries and injury or illness or an event or exposure problems. illnesses. FRA is simply asking the was a discernable cause of the railroads to document their Other comments suggested that the significant aggravation of a pre-existing investigation of all potentially work- injury or illness. Except with respect to current reporting scheme captures all of related injuries and illnesses where the the necessary data. Specifically, AAR occupational illnesses, FRA’s 2003 Final employee claims or suspects the Rule states that ‘‘it is the railroad’s argued that there are sufficient tools casualty is work-related, rather than just currently in place, such as the ICP, to responsibility to determine whether an those that are ultimately determined to illness is work-related,’’ meaning that identify underreporting. UP argued that be work-related. During the hearing, in it is using a reliable review process that ‘‘FRA’s role will be to determine response to allegations that the whether the reporting officer’s allows it to identify where additional amendment would result in violations information is required so that it is determination was reasonable.’’ FRA of privacy laws, FRA asked that the emphasizes, this language refers to only making accurate reporting decisions. railroads submit additional comments The ICP requires the railroad to audit its occupational illnesses and FRA retained explaining how the amendment would the ability to present evidence that the own reporting and make appropriate force railroads to violate privacy laws. railroad’s decision was in fact not changes in its reporting system to AAR stated that the proposed language reasonable. 68 FR 10119, March 3, 2003. improve the quality of reporting. In the would force employers to request preamble of the June 18, 1996 personal information without providing In the NPRM, FRA proposed regulation, FRA challenged the railroads any safety benefit. As explained above, amending the definition of to develop a Total Quality Management the changes in the final rule are aimed ‘‘Accountable rail equipment accident/ (TQM) system to have zero defects in at improving safety in the rail industry incident’’ to mean ‘‘a collision, reporting. The final rule is consistent and justify requesting sensitive derailment, fire, explosion, act of God, with the purpose of the ICP, which is to information, particularly where the or other event involving the operation of have complete and accurate reporting. employee suspects or claims, or the railroad on-track equipment (standing or (49 CFR 225.33(a)(1)). FRA has found railroad knows, that the injury or illness moving) that does not result in that the current tools do not always is work-related. Moreover, the definition reportable damages greater than the capture injuries or illnesses where the in this final rule does not expand the current reporting threshold to railroad cause of the injury or illness is not scope of the injuries or illnesses to be on-track equipment, signals, track, track readily apparent. The previous ICP did investigated under FRA’s 2003 Final structures, and roadbed.’’ The final rule not create an audit trail for a situation Rule but simply creates a recordkeeping defines ‘‘Accountable rail equipment in which a railroad determined that the requirement. accident/incident’’ to mean ‘‘(1) any injury or illness is not work-related, Several commenters stated that the derailment regardless of whether or not therefore, FRA and the railroads were meaning of the terms ‘‘manifests’’ and it causes any damage or (2) any hindered in reviewing and auditing the ‘‘abnormal’’ were vague. As an initial collision, highway-rail grade crossing initial reporting decisions. AAR stated matter, the final rule does not include accident/incident, obstruction accident, in post-hearing comments that the term ‘‘manifests.’’ In addition, FRA’s other impact, fire or violent rupture, disparities in reporting between use of the term ‘‘abnormal’’ is clear, and explosion-detonation, act of God, or railroads is not a sign of underreporting. is consistent with OSHA’s language. other accident/incident involving the However, without making an initial Finally, several commenters suggested operation of railroad on-track record and monitoring injuries and that FRA should review railroads’ equipment (standing or moving) that illnesses, it is difficult for the railroads reporting and recording decisions based results in damage to the railroad on- or FRA to completely understand or on whether or not a decision is track equipment (standing or moving), explain the disparities in reporting. The reasonable. AAR stated that employers signals, track, track structures or changes in the final rule will allow FRA are in the best position to determine roadbed and that damage impairs the

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functioning or safety of the railroad on- or violent rupture, explosion- considering the circumstances, it is track equipment (standing or moving), detonation, act of God, or other more likely than not that the event or signals, track, track structures or accident/incident involving the exposure is a cause of the injury or roadbed.’’ operation of railroad on-track illness. The event or exposure arising Under the definition contained in equipment (standing or moving). FRA from the operation of a railroad need not FRA’s 2003 Final Rule, generally, an intends to use the information captured be a sole, predominant or significant accountable rail equipment accident/ to learn about precursors to reportable cause of the injury or illness, so long as incident meant an incident that resulted accidents/incidents and to improve it is a cause (i.e., a contributing factor).’’ in damage below the reporting threshold safety. The final rule clarifies that, with FRA’s accident/incident reporting and that, if not attended to, would the exception of derailments, an regulations concerning railroad disrupt railroad service. FRA has found incident must result in damage and that occupational casualties are maintained, through its audits and enforcement tools damage must impair the functioning or to the extent practicable, in general that the term ‘‘disruption of service’’ has safety of the railroad on-track conformity with OSHA’s recordkeeping not been consistently understood or equipment (standing or moving), and reporting regulations, in order to uniformly applied throughout the signals, track, track structures or permit comparability of data on railroad industry. Moreover, FRA found roadbed. Consequently, FRA is not occupational casualties between various that the previous definition of requiring the railroads to record minor industries, to allow integration of accountable rail equipment accident/ incidents that result from normal wear railroad industry data into national incident failed to adequately capture the and tear. Consistent with FRA’s 2003 statistical databases, and to improve the accidents and incidents FRA originally Final Rule, FRA believes it is necessary quality of data available for analysis of intended and currently requires to be to record every derailment as such casualties in railroad accidents/ recorded and/or reported for data information will provide greater insight incidents.5 Moreover, maintaining such analysis and safety purposes. into their causes and will prevent future compatibility allows railroads to report Specifically, FRA originally created the reoccurrences, including those that may occupational casualties only to FRA, Form FRA F 6180.97 to establish a result in hazardous material spills, rather than to OSHA and to FRA. See 29 means by which railroads could record significant damage, and/or casualties. CFR 1904.3. and FRA could audit railroad reporting Finally, the definition adopted in the With respect to employee injury and decisions with regard to the reporting of final rule, which eliminates the illness recording, OSHA’s 2001 Final railroad accidents/incidents on Form disruption of service criteria, creates a Rule, states that ‘‘each employer * * * FRA F 6180.54. FRA has expanded its clear reporting standard that will allow must record each fatality, injury and use of the Form FRA F 6180.97 to for easier and more consistent illness that is work-related; and is a new identify safety hazards in yards and enforcement and compliance. case; and meets one or more of the terminals, which has benefited FRA’s SEPTA suggested, in one comment, general recording criteria * * * or the safety efforts, as those incidents are that FRA retain the disruption of service application to specific cases.’’ 66 FR precursors for reportable accidents and criteria. FRA did not implement this 5916, 5945, January 19, 2001, codified at incidents. suggestion. As discussed above, the 29 CFR 1904.4(a). OSHA’s 2001 Final Based upon FRA’s thorough review disruption of service criteria does not Rule goes on to state that ‘‘[employers] and consideration of the comments and capture all of the data FRA needs to must consider an injury or illness to be FRA’s goals of creating an audit trail, ensure safety. Moreover, FRA has found work-related if an event or exposure in applying a uniform and simpler that the disruption of service criteria has the work environment either caused or standard and capturing data that will not been uniformly applied. FRA contributed to the resulting condition or allow it to identify and eliminate safety believes that the language adopted in significantly aggravated a pre-existing hazards, FRA believes that the language the final rule is more appropriate and injury or illness,’’ and that ‘‘[w]ork- adopted in the final rule is more not overly burdensome. relatedness is presumed for injuries and appropriate than the language proposed In addition, several commenters illnesses resulting from events or in the NPRM. FRA received numerous suggested that the proposed definition exposures occurring in the work comments addressing the proposed was unclear and that it was unclear environment, unless an exception in [29 amendments to the definition of what information FRA was attempting CFR] 1904.5(b)(2) specifically applies.’’ ‘‘Accountable rail equipment accident/ to capture. FRA believes that the 66 FR 5916, 5946, January 19, 2001, incident’’ and, based upon the language language adopted in this final rule, codified at 29 CFR 1904.5(a). adopted in the final rule, a majority of however, is clear and will allow for the After OSHA’s 2001 Final Rule was those comments are no longer uniform application of the standard. published, the National Association of applicable. The final rule includes a definition for Manufacturers (NAM) filed a legal FRA received comments that the ‘‘Discernable cause.’’ In order to clarify challenge to the final rule, with respect proposed definition would create a the meaning of this term and to ensure to (among other things) the final rule’s substantial burden on the railroads as it consistency with OSHA’s reporting presumption of work-relatedness. On would require them to record every requirements, the final rule defines November 16, 2001, OSHA and NAM minor incident regardless of the amount ‘‘Discernable cause’’ in § 225.5 to mean, entered into a settlement agreement to of damage and the connection to safety. ‘‘a causal factor capable of being resolve NAM’s legal challenge. The The final rule does not require railroads recognized by the senses or the parties then entered into a revised to report or record damage that is the understanding.’’ See also, Webster’s result of normal wear and tear. Rather, Third New International Dictionary 5 It should be noted that under OSHA’s as in FRA’s 2003 Final Rule, this final (1961); Webster’s Third New regulations, the term ‘‘recording’’ is used. Under FRA’s regulations and the FRA Guide, the term rule only classifies an accident/incident International Dictionary, Unabridged ‘‘reporting’’ is used. The OSHA system requires as an ‘‘accountable rail equipment (1971). The definition further provides recording into the OSHA 300 Log whereas FRA has accident/incident’’ when it results from that ‘‘[a]n event or exposure arising from always used the term ‘‘reporting’’ in its regulations a derailment, collision, highway-rail the operation of a railroad is a and in the FRA Guide because the Accident Reports Act of 1910, as amended, requires ‘‘a railroad carrier grade crossing accident/incident, discernable cause of (i.e., discernably [to] file a report * * * on all accidents and obstruction accident, other impact, fire caused) an injury or illness if, incidents * * *’’ 49 U.S.C. 20901.

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settlement agreement on November 29, occupational illnesses’’ at § 225.19(d). However, this suggestion would make 2001. The revised settlement agreement While FRA did discuss the meaning of the definition inconsistent with OSHA. was published in the Federal Register at ‘‘discernable cause’’ in the preamble of In the OSHA Letter, OSHA stated, with 66 FR 66943, December 27, 2001. As FRA’s 2003 Final Rule, see 68 FR 10108, regards to ‘‘causation,’’ that ‘‘the part of the NAM–OSHA settlement, the 10127, March 3, 2003, the agency did employer need not weigh the relative parties agreed to the following: not explicitly define the term contributions of occupational and non- Section 1904.5(a) states that ‘‘[the ‘‘Discernable cause’’ in the rule text. occupational factors to the injury or employer] must consider an injury or illness On January 15, 2008, FRA received a quantify the extent of the occupational to be work-related if an event or exposure in letter from the DOL’s Office of the contributions.’’ Id. As such, the work environment either caused or Solicitor (OSHA Letter) confirming ‘‘discernable’’ in this context does not contributed to the resulting condition or FRA’s understanding and application of mean obvious. In addition, requiring significantly aggravated a pre-existing the NAM–OSHA settlement agreement that the event or exposure be the condition. Work relatedness is presumed for and OSHA’s recordkeeping predominant or main cause would injuries and illnesses resulting from events or requirements with regard to ‘‘work- exclude certain injuries and illnesses, exposures occurring in the work environment relatedness,’’ in addition to providing and would be difficult to measure and ***’’ Under this language, a case is presumed work-related if, and only if, an further clarification on particular points enforce. event or exposure in the work environment of law. In the OSHA Letter, OSHA Some comments requested that is a discernable cause of the injury or illness stated that ‘‘‘[d]iscernable’ is used in the medical evidence factor into the or of a significant aggravation to [sic] pre- ordinary sense; that is, capable of being causation decision. Consistent with existing condition. The work event or recognized by the senses or the OSHA, FRA recognizes that when exposure need only be one of the discernable understanding.’’ OSHA Letter at 3. causation is not obvious, that causes; it need not be the sole or OSHA’s definition came from Webster’s ‘‘consultation with a health care predominant cause. Third International Dictionary. The professional’’ may play a part in the Section 1904.5(b)(2) states that a case is not OSHA Letter goes on to state that an reportability determination. Id. recordable if it ‘‘involves signs or symptoms that surface at work but result solely from a event or exposure is a discernable cause However, the final reporting decision is non-work-related event or exposure that if, ‘‘considering the circumstances, it is made by a railroad’s reporting officer occurs outside the work environment.’’ This more likely than not that the event or and the responsibility cannot be language is intended as a restatement of the exposure is a cause of the injury or delegated to another individual. principle expressed in 1904.5(a), described illness.’’ Id. FRA submitted the OSHA Railroads also asked what weight FRA above. Regardless of where signs or Letter to Docket Number FRA 2006– gives to medical evidence compared to symptoms surface, a case is recordable only 26173 on December 10, 2008. other types of evidence. Again, FRA, if a work event or exposure is a discernable FRA received several comments from like OSHA, acknowledges that medical cause of the injury or illness or of a the railroads and other organizations consultation may be a factor the railroad significant aggravation to a pre-existing regarding the proposed definition of condition. reporting officer considers, but the Section 1904.5(b)(3) states that if it is not discernable cause. Many comments reporting officer may not delegate the obvious whether the precipitating event or stated that the proposed definition was reporting decision to a health care exposure occurred in the work environment inconsistent with OSHA’s reporting professional. As stated in the definition, or elsewhere, the employer ‘‘must evaluate requirements. As explained above, FRA ‘‘[i]f it is unclear whether the work event the employee’s work duties and environment adopted a definition that is virtually was a cause of the injury, the employer to decide whether or not one or more events identical to and consistent with OSHA’s must evaluate the employee’s work or exposures in the work environment caused definition to ensure that railroads need duties and environment and decide or contributed to the resulting condition or to report only to one agency and that whether it is more likely than not that significantly aggravated a pre-existing there is consistent reporting across condition.’’ This means that the employer work was a cause.’’ Id. Thus, an must make a determination whether it is industries. One comment suggested that employer is responsible for considering more likely than not that work events or OSHA requires that the cause be all of the relevant evidence obtained exposures were a cause of the injury or distinguishable from other causes, and through its inquiry when making a illness, or a significant aggravation to a pre- that FRA’s definition is inconsistent. reporting decision. When reviewing the existing condition. If the employer decides Although OSHA requires that an event railroad’s reporting decision, FRA the case is not work-related, and OSHA or exposure be a tangible cause, it does considers various factors when giving subsequently issues a citation for failure to not require that the event or exposure be weight to a health care professional’s record, the Government would have the the main or predominate cause of the opinion, including, but not limited to, burden of proving that the injury or illness injury or illness. In addition, neither whether the health care professional was work-related.’’ OSHA nor FRA require that the railroad clearly documented his or her findings, In 2003, FRA revised its accident/ calculate the exact amount of cause a whether the conclusion is supported by incident reporting regulations to particular event or exposure played in evidence, and whether the health care conform, to the extent practicable, to the subsequent injury or illness, only professional provided a medical OSHA’s revised requirements. See 68 that it be a cause. Moreover, like OSHA, assessment or, instead, a conclusory FR 10108–10140, March 3, 2003. In where it is difficult to determine statement. doing so, FRA took into account the whether the event or exposure is a Finally, commenters asserted that NAM–OSHA settlement agreement, in cause, FRA requires that the employer FRA ‘‘always’’ takes employees at their particular the agreement’s reference to consider the circumstances surrounding word and, therefore, railroads are not the term ‘‘discernable,’’ to qualify or the event or exposure to determine truly free to consider contradictory describe cause. FRA included the whether it is more likely than not a medical evidence. However, that is not phrase ‘‘discernable cause’’ in its cause. the case. As stated in § 225.17, definitions of ‘‘Accident/incident,’’ Other comments suggested requiring ‘‘Doubtful cases,’’ FRA has the authority ‘‘Accountable injury or illness,’’ and that the event or exposure in the work to resolve factual disputes. During its ‘‘Occupational illness’’ in § 225.5, and environment be the predominant or audit, FRA reviews the basis for a added the phrase to its reporting main cause to ease the reporting burden railroad’s reporting decision, in addition requirement for ‘‘Deaths, injuries and and to simplify the reporting scheme. to the ‘‘investigatory materials,

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including, but not limited to, the potentially reportable or accountable Analysis for § 225.5, ‘‘Definitions— following: The initial report filed by the injury or illness, including but not Event or exposure arising from the affected person, witness statements, limited to an employee’s medical and operation of the railroad’’ and transcripts of hearings, medical records, work history, in addition to an ‘‘Definition Work related.’’ For time and attendance records, and the employee’s statements regarding his or employees, consistent with OSHA, the purpose of payouts made in connection her injury or illness. final rule requires that an event or with the accident/incident.’’ See FRA Commenters also suggested that the exposure in the work environment be a Guide, Chapter 1. Moreover, FRA definition of discernable cause is too discernable cause of the injury or conducts additional investigation and broad. Specifically, commenters illness. Therefore, FRA is still requiring consults with its own health care suggested that the definition requires causation and, as such, an injury or professional when appropriate. At the railroads to collect information that is illness is not work-related simply conclusion of its investigation, FRA will not relevant to occupational safety and because signs or symptoms arise in the review the railroad’s reporting decision will result in over-reporting. Again, the work environment. For non-employees, and all of the associated evidence to definition of discernable cause is FRA requires that an event or exposure determine whether it is more likely than consistent with FRA’s longstanding arising from the operations of the not that an event or exposure arising policy and with OSHA’s interpretation. railroad be a discernable cause of the from the operation of the railroad is a As a result, the definition will not casualty, and, as such, FRA did not discernable cause of the injury. change railroad reporting create a geographic presumption. responsibilities and, in fact, will ease Commenters suggested using an Although the railroads would like to the reporting burden (as railroads have evidence-based approach to determine limit reportable injuries and illnesses to to report to only one agency). Like causation. During his testimony, Dr. M. those caused by events and exposure OSHA, FRA does not require that the Hadler commented that individuals that are uniquely occupational, cause be occupational in nature. See often have difficultly recognizing what consistent with OSHA, FRA simply also Section-by-Section Analysis for caused their injuries and tend to requires for employees that an event or § 225.5, ‘‘Definitions—Work-related.’’ attribute cause to the environment they exposure arising from the operation of Also, the definition is appropriate as it are in at the time their pain becomes the railroad be a discernable cause of allows FRA to identify injuries and unbearable. Consequently, Dr. Hadler the injury or illness. See Section-by- illnesses for which events or exposures Section Analysis for § 225.5, suggested using a more scientific arising from the operation of the approach (such as a pain diary) to ‘‘Definition—Work related.’’ railroad play a role, and it is not overly Finally, commenters suggest that determine causation. Additionally, KCS broad as the injuries and illnesses must and UP suggested that FRA use the employers, and not FRA, are in the best also meet one of the reporting criteria. position to determine causation. National Institute for Occupational In addition to the benefits of collecting Consistent with OSHA, for purposes of Safety and Health’s (NIOSH) approach uniform data across industries, FRA is § 225.11, FRA is not reviewing a to determine causation. FRA, however, not collecting information regarding railroad’s reporting decision to has chosen to adopt OSHA’s language minor injuries with no safety impact as determine whether it was reasonable and method of determining causation so an event or exposure arising from the (except in the case of occupational that railroads may report injuries and operation of the railroad must be a illness (See FRA’s 2003 Final Rule)); illnesses to only one agency, FRA. If discernable cause and the injury or rather, FRA is determining whether an FRA adopted the NIOSH approach then illness must be severe enough to meet injury or illness is reportable. railroads would be responsible for one of the reporting criteria. reporting employee injuries and Commenters also stated that the The final rule defines an ‘‘Event or illnesses separately to both OSHA and definition of discernable cause is vague exposure’’ as an ‘‘incident, activity, or FRA. FRA collection of employee and fails to provide clear guidance to occurrence.’’ FRA included the injuries and illnesses must be consistent railroads. Specifically, one comment definition to clarify that event or with OSHA’s system to make a reliable stated that the dictionary definition was exposure is a term that is to be broadly national database. Failure to be uninformative. As explained above, the interpreted and to eliminate redundant consistent with OSHA would trigger cause need not be the sole or language in the rule text. dual reporting requirements for predominant cause, rather it must be a Many of the comments that FRA railroads (to OSHA and to FRA). UP contributing factor. If it is not clear received suggested that normal body supported adopting the NIOSH whether the event or exposure was a movements such as walking or sneezing approach because it believes that each discernable cause, the employer must do not constitute an event or exposure. person shows injuries and illnesses consider the surrounding circumstances However, consistent with OSHA, FRA differently. Thus, UP and KCS would to determine reportability. FRA believes considers ‘‘normal body movements’’ to like an approach that considers the that the definition and standard are be events within the definition. See unique factors for each person. Under clear. Moreover, when a railroad is OSHA Letter at 3. Such normal body FRA’s approach, a railroad should unsure about the reportability of an movement cases are only reportable if conduct an inquiry into any potentially injury or illness, FRA recommends that they arise from the operation of the reportable or accountable injury or a railroad make a report or utilize FRA’s railroad and cause or contribute to the illness. At the conclusion of its ‘‘claimed but not admitted’’ process as injury or illness. See Section-by-Section investigation, the railroad must decide described in 49 CFR 225.17(c). Analysis for § 225.5, ‘‘Definition—Work whether, considering the circumstances, Commenters suggested that FRA is related’’ and ‘‘Definition—Discernable it is more likely than not that an event creating a geographic presumption and, cause.’’ Consistent with OSHA’s or exposure arising from the operation therefore, the definition is inconsistent requirements, FRA does not require that of the railroad is a discernable cause of with OSHA. Moreover, commenters the event or exposure be an ‘‘obvious an injury or illness. Consequently, want to limit the cause to just those cause’’ of the injury or illness, or be under this approach, a railroad may injuries that are occupational in nature occupational in nature and, therefore, consider the various unique factors (i.e., related to performing job-related normal body movements may result in associated with each employee’s activities). See Section-by-Section reportable injuries or illnesses.

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The final rule amends and consistent with current practices than definition continues to mean, consistent restructures the definition of ‘‘Event or the language proposed in the NPRM. with FRA’s 2003 Final Rule, ‘‘that a exposure arising from the operation of a The second tier also defined ‘‘event or railroad would not have to report to railroad’’ to clarify its meaning. The exposure arising from the operation of a FRA the death of or injury to an term ‘‘event or exposure arising from the railroad’’ broadly, but ‘‘with respect to employee of a contractor to the railroad operation of a railroad’’ and its an employee of the railroad (whether on who is off railroad property (or deaths definition were added in FRA’s 2003 or off property owned, leased or or injuries to any person who is not a Final Rule to more narrowly tailor what maintained by the railroad), an activity railroad employee) unless the death or types of accidents/incidents were of the railroad that is related to the injury results from a train accident, train considered to ‘‘arise from the operation performance of its rail transportation incident, or highway-rail grade crossing of a railroad’’ and were, therefore, business or an exposure related to that accident involving the railroad; or from potentially reportable. 68 FR 10108, activity.’’ The final rule clarifies this a release of a hazardous material or 10115–16, March 3, 2003. paragraph by revising the definition to some other dangerous commodity in the FRA’s 2003 Final Rule’s definition state ‘‘with respect to a person who is an course of the railroad’s rail consisted of three-tiers that addressed employee of a railroad, an event or transportation business. In addition, the different classifications of persons exposure that is work-related.’’ This FRA would require railroads to report on and off railroad property. The first amendment removes the phrase ‘‘an work related illnesses only of railroad tier defined ‘‘event or exposure arising activity of the railroad,’’ since the employees and under no circumstances from the operation of a railroad’’ broadly definition of ‘‘event or exposure’’ in the the illness of employees of a railroad ‘‘with respect to any person on property final rule includes ‘‘activity.’’ The final contractor.’’ 68 FR 10108, 10116, March owned, leased, or maintained by the rule also removes the phrase ‘‘(whether 3, 2003. railroad, an activity of the railroad that on or off property owned, leased, or The final rule amends the language is related to its rail transportation maintained by the railroad)’’ and the proposed in the NPRM in the first tier business or an exposure related to the phrase ‘‘that is related to the by clarifying that a person who is not an activity.’’ The final rule revises this first performance of the railroad’s rail employee is considered to be on railroad ’’ tier of the definition by changing ‘‘any transportation business * * * because property when they are on property that ‘‘ ’’ person’’ to ‘‘a person who is not an the term work-related encompasses the railroad operates over (e.g., employee of the railroad.’’ This both of those requirements. operating rights), in addition to property The third tier defined ‘‘Event or owned, leased, or maintained by the amendment is consistent with the intent exposure arising from the operation of a railroad. FRA does not believe that this of FRA’s 2003 Final Rule: railroad’’ narrowly with respect to a clarifying amendment increases the FRA developed a compromise position, person who is neither on the railroad’s burden on railroads because it is proposing that railroads not be required to property nor an employee of the consistent with common industry report deaths or injuries to persons who are railroad, to include only certain practice as well as FRA’s long-standing not railroad employees that occur while off enumerated events or exposures, i.e., a railroad property unless they result from a policy. Any burden created by this train accident, a train incident, a highway- train accident, a train incident, or a amendment would be nominal, as a rail grade crossing accident/incident, or a highway-rail crossing accident/incident majority of these incidents would have release of a hazardous material or other involving the railroad; or a release of been captured elsewhere under the prior dangerous commodity related to the hazardous material from a railcar in the definition. railroad’s rail transportation business. railroad’s possession or a release of The final rule also amends the another dangerous commodity if the language proposed in the NPRM in the 68 FR 10108, 10109, March 3, 2003. The release is related to the railroad’s rail first tier (ii)(A) by removing ‘‘highway- revision clarifies that the definition was transportation business. 68 FR 10108, rail grade crossing accident or incident’’ intended to apply only to persons who 10116, March 3, 2003. The final rule from the list of accidents/incidents are not railroad employees. The final revises the language proposed in the considered to be ‘‘events or exposures rule also removes the phrase ‘‘an activity NPRM to clarify that the new arising from the operation of the of the railroad’’ such that tier one of the consolidated tier one subpart (ii) deals railroad’’ when a non-employee is off definition concerns an event or with a person who is not an employee railroad property. FRA is removing exposure that is related to the and is not on railroad property, rather highway-rail grade crossing accident or performance of the railroad’s rail than an event or exposure not occurring incident from the list of off property transportation business. The final rule on property. FRA believes this clarifying accidents/incidents because it is also removes the reference to ‘‘activity’’ language is consistent with the intent of repetitive, as those types of accidents since the definition of ‘‘event or FRA’s 2003 Final Rule. As this change and incidents are already captured exposure’’ in the final rule includes is consistent with current industry under train accident and train incident. ‘‘activity.’’ The final rule also revises the reporting practices and the language in FRA also added the term ‘‘non-train language proposed in the NPRM to FRA’s 2003 Final Rule, the amendment incident.’’ Non-train incident is defined clarify that the newly consolidated tier to this final rule should have no impact as an ‘‘event that results in a reportable one subpart (i) deals with a person who on reporting practices and, in fact, is casualty, but does not involve the is not an employee and is on railroad more consistent with current industry movement of on-track equipment nor property, rather than an event or practices than the language proposed in cause reportable damage above the exposure occurring on property. FRA the NPRM. threshold established for train believes this clarifying language is The final rule consolidates tier one, accidents.’’ See § 225.5, ‘‘Definitions— consistent with the intent of FRA’s 2003 tier two, and tier three of the definition Non train incident.’’ FRA included Final Rule. As this change is consistent into two tiers so that tier one is ‘‘non-train incident’’ to make the with current industry reporting applicable to non-employees and tier definition consistent with FRA’s 2003 practices and the language in the FRA’s two is applicable to employees. The Final Rule and the 2003 FRA Guide. In 2003 Final Rule, the amendment to the amendments and restructuring are the 2003 FRA Guide, non-train final rule should have no impact on clarifying measures and do not change incidents were included in the list of reporting practices and, in fact, is more the meaning of the definition. The accidents/incidents. This amendment

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simply clarifies that FRA wants to retain makes FRA’s regulations consistent with environment should not be considered the non-train incidents events captured the RSIA’s requirements and enables an injury as the person might simply be under the prior rule and it was accurate auditing and reporting. experiencing pain as the result of an inadvertently removed in the NPRM. Moreover, FRA proposed revisions to injury or illness that was caused by an FRA does not believe that this clarifying the definition of ‘‘Accident/Incident’’ event or exposure not arising from the amendment increases the burden on with respect to impacts at highway-rail operation of the railroad. UP argued, for railroads because it is consistent with grade crossings, and received comments example, that a person may experience the FRA’s 2003 Final Rule, the 2003 on the proposal. FRA’s responses to pain simply as a result of age or FRA Guide, common industry practice, those comments are discussed above. psychological reasons. The final rule as well as FRA’s long-standing policy. The final rule defines ‘‘Injury or does not require railroads to report Amtrak’s comments suggested that illness’’ to mean an ‘‘abnormal condition injuries or illnesses that are not caused FRA’s definition creates a geographic or disorder,’’ (this is consistent with by an event or exposure in the work presumption of work-relatedness. OSHA’s definition at 29 CFR 1904.46). environment. Thus, signs or symptoms However, for an injury or illness to be FRA is adding the definition to provide of a prior injury or illness that simply reportable, an event or exposure arising examples of injuries and illnesses and to manifest within the work environment from the operation of the railroad must clarify that pain is an injury or illness or on property owned, leased, operated be a discernable cause. As such, it is not when it is sufficiently severe to meet the over or maintained by railroad, are not enough that the signs or symptoms of an general reporting criteria listed in reportable. Pain is only reportable when injury or illness arose in the work § 225.19(d)(1) through (d)(6). See an event or exposure arising from the environment. See Section-by-Section OSHA’s Final Rule, 66 FR 5916, 6080, operation of the railroad is a discernable Analysis for § 225.5, ‘‘Definition—Work January 19, 2001. The final rule also cause of that pain or significantly related.’’ amends the definition to clarify that a aggravated that pain and it meets the The final rule makes a technical musculoskeletal disorder (MSD) is an general reporting criteria. amendment to the definition of ‘‘General injury or illness. See OSHA’s Final Several commenters stated that the reporting criteria’’ to include criteria Rule, 66 FR 5916, 6017, January 19, term ‘‘abnormal condition’’ is not clear. number [225.19(d)] (6), ‘‘Illness or injury 2001 and 68 FR 38601, 38602, June 30, This terminology is consistent with that meets the application of any of the 2003. The addition of the definition is OSHA’s requirements. Moreover, FRA [enumerated] specific case criteria,’’ not a substantive change to FRA’s believes that the term is, in fact, clear which was inadvertently omitted in current accident/incident recording and and requires railroads to report adverse FRA’s 2003 Final Rule. reporting requirements. Rather, the final medical conditions caused by events or The final rule also revises the rule added the definition in an effort to exposures arising from the operation of definition of ‘‘Highway-rail grade eliminate confusion as to what the railroad. This definition, in addition crossing’’ to mean a location where a constitutes an injury or illness. FRA also to the examples, provides sufficient public highway, road, street, or a private wishes to emphasize that injuries and guidance for railroads to properly roadway, including associated illnesses are reportable only if they are identify reportable injuries and sidewalks, crosses one or more railroad new cases discernably caused or illnesses. UP stated that the definition tracks at grade, or a location where a significantly aggravated by an event or was vague and unclear, and, as a result, pathway explicitly authorized by a exposure arising from the operation of a UP suggested a definition based upon public authority or railroad carrier that railroad, that meet one or more of the diagnostic criteria. An injury or illness is dedicated for the use of non-vehicular general reporting criteria. that is simply the result of events or traffic, including pedestrians, bicyclists, In response to the NPRM, FRA exposures outside of the work and others, that is not associated with received comments that asserted that environment is not reportable. Thus, an a public highway, road, or street, or a the proposed definition was not injury that is simply the result of the private roadway, crosses one or more consistent with OSHA because pain and aging process is not reportable. railroad tracks at grade. The definition MSDs are not injuries or illnesses. Moreover, an injury or illness must be further provides that the term However, in the OSHA Letter, OSHA caused by an event or exposure arising ‘‘sidewalk’’ means that portion of a street confirmed FRA’s understanding that from the operation of the railroad. Thus, between the curb line, or the lateral line ‘‘pain is an injury or illness * * * when if an event or exposure arising from the of a roadway, and the adjacent property it is sufficiently severe to meet the operation of the railroad significantly line or, on easements of private general reporting criteria’’ and that the aggravated a preexisting condition or if property, that portion of a street that is MSDs are injuries and illnesses as they the person is more susceptible to an paved or improved and intended for use constitute ‘‘abnormal conditions.’’ OSHA injury or illness discernably caused by by pedestrians. Letter at 4. an event or exposure arising from the Although this revision was not Commenters also stated that the operation of the railroad due to age, expressly addressed in the NPRM, it is proposed definition is overly broad and then the injury or illness is reportable. consistent with FRA’s long-standing would require the railroads to report As the workforce ages, FRA is interested practice as well as the Railroad Safety minor injuries and illnesses. Because in learning more about the impact on Improvement Act of 2008 (the ‘‘RSIA’’). the injury or illness must still meet the these demographics and work place Specifically, sections 2 and 204 of the general reporting criteria, FRA will not safety. As such, FRA believes that the RSIA define ‘‘crossing’’ to include such be capturing minor injuries and definition contained in the final rule is pathway crossings. Furthermore, section illnesses. Moreover, these amendments appropriate. 209 of the RSIA requires that FRA audit are clarifications and do not alter the The final rule amends the definition railroads to ensure that all grade railroads’ current responsibilities. FRA of ‘‘New case’’ to apply to all persons crossing collisions and fatalities are uses all of this information, including rather than only to employees. properly reported. Thus, FRA’s audits information about MSDs and lower back Correspondingly, the final rule replaces must review railroad records to ensure pain, to identify health and safety risks the phrase ‘‘in the work environment’’ that crossings, including such pathway arising from railroad operations. with ‘‘arising from the operation of a crossing accidents/incidents, are Other commenters suggested that the railroad,’’ because the term ‘‘work reported. The final rule’s definition experience of pain in the work environment’’ applies only to

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employees. This revision is consistent may diagnose conditions outside of OSHA’s language. Pursuant to the with the statutory requirement that their specialty while operating within OSHA–NAM Agreement, a case ‘‘is railroads report to FRA ‘‘all accidents the scope of their license, registration, presumed work-related if, and only if, and incidents resulting in injury or or certification. This position is an event or exposure in the work death to an individual * * * arising consistent with the current rule; environment is a discernable cause of from the carrier’s operations during the however, the otolaryngologist example the injury or illness or of a significant month,’’ not just accidents and incidents created confusion (which is why it was aggravation to [sic] preexisting resulting in injury or death to railroad removed). condition.’’ employees. See 49 U.S.C. 20901. FRA The final rule revises the definition of Amtrak further argued that FRA’s believes that this amendment does not ‘‘Railroad.’’ Currently, part 225 defines removal of ‘‘occupational’’ preceding the affect the reporting requirements. The ‘‘railroad’’ as ‘‘a person providing phrase ‘‘event or exposure’’ is also final rule also includes the descriptor railroad transportation.’’ In order to inconsistent with OSHA. This revision ‘‘discernably’’ before the word ‘‘caused’’ attain better consistency with Congress’ is consistent with the statutory in order to maintain consistency within 1994 revisions to 49 U.S.C. 20102, the requirement that railroads report to FRA part 225. final rule defines ‘‘railroad’’ to mean ‘‘a ‘‘all accidents and incidents resulting in Commenters to the NPRM stated that railroad carrier,’’ and adds a definition injury or death to an individual arising the amendments to the definition of to § 225.5 for ‘‘railroad carrier’’ to mean from the carrier’s operations during the ‘‘New case’’ inappropriately expanded a ‘‘person providing railroad month,’’ not just accidents and incidents the definition to apply to all persons transportation.’’ Congress added the resulting in injury or death to railroad and, in so doing, would create term ‘‘Railroad carrier’’ to 49 U.S.C. employees. See 49 U.S.C. 20901. While significant costs and reporting burdens. 20102 in 1994 (Pub. L. 103–272, 108 OSHA only captures information While the amendments do expand ‘‘New Stat 745), as part of a larger effort ‘‘[t]o relating to employees, FRA collects and case’’ to address persons beyond restate the laws related to transportation uses information for various employees, the changes are meant to in one comprehensive title’’ and ‘‘attain classifications of persons. As such, FRA make the definition consistent with the uniformity [of language] within the requires railroads to submit information statutory requirement that railroads title.’’ See House Report No. 103–180 at relating to non-employee injuries and report casualties to all persons. 49 3, reprinted in 1994 U.S.C.C.A.N. 818, illnesses that arise from the operation of U.S.C. 20901. Moreover, expanding the 820. Specifically, Congress defined the railroad. term ‘‘New case’’ to address casualties to ‘‘railroad carrier’’ at 49 U.S.C. 20102 (2) The final rule also adds a definition non-employees should not create as a ‘‘person providing railroad for ‘‘Suicide data.’’ Consistent with significant additional burdens as the transportation,’’ in order to ‘‘distinguish FRA’s decision to remove suicide and revision is meant to provide guidance to between railroad transportation and the attempted suicide from its current the railroads about when a new record entity providing railroad § 225.15 reporting exceptions (see or report must be created and when the transportation.’’ See House Report No. Section-by-Section Analysis for 225.15, railroads should only update a 103–180 at 79, reprinted in 1994 ‘‘ previously created record or report for U.S.C.C.A.N. 818, 898. FRA’s definition Accidents/Incident not to be ’’ an ‘‘existing case.’’ As such, railroads of ‘‘railroad transportation’’ remains reported ), and to begin collecting need only make a new record or report unchanged. suicide related data, FRA is adding to ‘‘ ’’ when it is a ‘‘new case’’ and may simply The final rule adds a definition for § 225.5 a definition for Suicide data. update a record or report for an ‘‘existing ‘‘Significant aggravation of a pre-existing In the NPRM, FRA proposed that case.’’ injury or illness.’’ This definition is ‘‘Suicide data’’ mean data regarding the The final rule also amends the consistent with both OSHA’s definition death of an individual due to that definition of ‘‘Qualified health care as set forth at 29 CFR 1904.5(b)(4) and individual’s commission of suicide as professional’’ by removing the the current version (effective May 1, determined by a coroner or other public otolaryngologist example (which had 2003) of the FRA Guide. FRA has added authority; or injury to an individual due stated: ‘‘[f]or example, an this definition to § 225.5 for clarification to that individual’s attempted otolaryngologist is qualified to diagnose and ease of reference. commission of suicide as determined by a case of noise induced hearing loss and The final rule further clarifies that the a public authority. identify potential causal factors, but provisions concerning days away from The final rule revises the definition of may not be qualified to diagnose a case work and restricted duty only relate to ‘‘Suicide data’’ to mean ‘‘data regarding of repetitive motion injuries.’’). The final railroad employees. This clarifying the death of an individual due to the rule removes this example in order to amendment was made in response to a individual’s commission of suicide as clarify that physicians are not limited by comment requesting additional determined by a coroner, public police their specialty and may diagnosis clarification about whether these officer or other public authority; or conditions while operating within the provisions apply to ‘‘any person.’’ This injury to an individual due to that scope of their license, registration, or amendment is consistent with the individual’s attempted commission of certification. As such, as a licensed reporting criteria found in § 225.19 and suicide as determined by a public police physician, an otolaryngologist may will not create any additional burden on officer or other public authority.’’ The diagnose conditions other than those the railroads. FRA Guide explains that a ‘‘public related to the ear, nose, and throat. A Commenters stated that the definition authority’’ is a Federal, State or local comment to the NPRM stated that the for ‘‘Significant aggravation of a pre- government entity, such as a public example should not be removed, that existing injury or illness’’ is not health department, that has the legal doctors should not be able to diagnosis consistent with the OSHA definition. authority to declare a fatality a suicide conditions outside of their specialty, Specifically, Amtrak argued that FRA’s or a casualty to a person as an attempted and that the example should be definition is different than OSHA’s suicide. Moreover, the FRA Guide amended from referencing ‘‘repetitive because it contains the term provides for what documentation a motion injuries’’ to ‘‘work-related ‘‘discernable cause.’’ However, FRA railroad is required to have to show that musculoskeletal disorders.’’ As noted, included this language for clarity and a person committed suicide or the final rule clarifies that physicians the definition is, in fact, consistent with attempted to commit suicide. See

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Section-by-Section Analysis for expiration of the month during which CFR 1904.5(a). That regulation goes on § 225.41, ‘‘Suicide data.’’ the accidents/incidents occurred. As to explain that ‘‘[w]ork-relatedness is FRA emphasizes that only the such, a railroad may submit the report presumed for injuries and illnesses information about the death of, or injury as a fatality if a final determination with resulting from events or exposures to, the individual who committed the regard to cause of death has not yet been occurring in the work environment, suicidal act is considered to be suicide reached and, at a later time, update and unless an exception in [29 CFR] data. Thus, information about the death amend the record or report once the 1904.5(b) specifically applies.’’ Id. at 29 of, or injury to, any other person caused railroad is able to confirm cause of CFR 1904.5(b)(2), OSHA also sets forth by another person’s commission of a death. If a railroad is unable to confirm nine exceptions to its injury and illness suicidal act is not suicide data. FRA will whether an individual committed reporting requirements. The final rule not report suicide data to OSHA. FRA suicide at the end of the investigative sets forth all FRA accident/incident will not include suicide data (as defined period, the deceased should be listed as reporting exceptions in § 225.15. See in § 225.5) in its periodic summaries of the applicable type person (e.g., Section-by-Section Analysis for data on the number of injuries and trespasser, non-trespasser). FRA allows § 225.15, ‘‘Accidents/Incident not to be illnesses associated with railroad railroads to accept verbal confirmation reported.’’ operations. FRA will maintain suicide of an attempted suicide or suicide from In addition, in cases where it is not data in a database that is not publicly a public authority, so long as the obvious whether a precipitating event or accessible. Accordingly, suicide data railroad documents in writing the exposure occurred in the work will not be available on FRA’s Web site specifics of the conversation and creates environment, the employer must for individual reports or downloads, the required audit trail, as explained in evaluate the employee’s work duties however, suicide data will be available the FRA Guide, rather than requiring and environment to decide whether it is to the public in aggregate format on written confirmation from the public more likely than not that an event or FRA’s Web site and via requests under police officer, coroner or other public exposure in the work environment the Freedom of Information Act. See authority. See Section-by-Section contributed to the employee’s injury or § 225.41, ‘‘Suicide data.’’ FRA inspectors Analysis for § 225.41, ‘‘Suicide data.’’ illness. FRA’s requirement is consistent and State agencies participating in The final rule revises the definition of with the NAM–OSHA settlement investigative activities under part 212 ‘‘Work environment’’ to explain that the agreement and OSHA’s regulations at 29 will have access to the individual work environment means the CFR 1904.5(b)(3), in which OSHA records and reports. See § 225.31. States establishment and other locations where addresses how an employer should also can obtain individual reports one or more railroad employees are handle a case if it is not obvious directly from the railroads pursuant to working or are present as a condition of whether the precipitating event or § 225.1. employment. This revision provides exposure occurred in the work Commenters requested that FRA additional clarity and better conforms environment, stating ‘‘in these clarify what is considered a public FRA’s definition with OSHA’s situations, [the employer] must evaluate authority. As explained above, a ‘‘public definition at 29 CFR 1904.5(b)(1). the employee’s work duties and authority’’ is a Federal, State or local The final rule revises the definition of environment to decide whether or not government entity, such as a public ‘‘Work-related’’ by removing the words one or more events or exposures in the health department, that has the legal ‘‘incident, activity, or the like’’ and work environment either caused or authority to declare a fatality a suicide replacing them with ‘‘event or exposure’’ contributed to the resulting condition or or a casualty to a person an attempted because the definition of ‘‘event or significantly aggravated a pre-existing suicide. MTA asked whether public exposure’’ in this section encompasses condition.’’ authority would include ‘‘a railroad those terms. The definition explains that FRA also wishes to clarify that an police department or other State or local an injury or illness is presumed work- event or exposure that occurs in the police department.’’ FRA does not related if an event or exposure in the work environment need not have a clear consider a railroad police officer a work environment is a discernable connection to a specific work activity, public authority within the meaning of cause of the resulting condition or a condition, or substance that is peculiar those terms. Another commenter discernable cause of a significant to the railroad transportation business suggested using the phrase aggravation to a pre-existing injury or in order be an ‘‘event or exposure arising ‘‘appropriately qualified public illness. The causal event need not be from the operation of a railroad.’’ authority’’ to define public authority. peculiarly occupational in nature so Examples of events or exposures arising FRA believes that the revised definition long as it occurs in the work from the operation of a railroad include provides sufficient clarity as to what is environment, and is a discernable cause an employee tripping for no apparent considered a public authority. (i.e., contributory factor). Further, the reason while walking across a level Commenters also suggested that final rule states that if an injury or floor; an employee being sexually collecting this information (e.g., a illness is within the presumption, the assaulted by a co-worker; or an coroner’s report) is time consuming and employer can rebut the work- employee being injured by an act of that FRA should consider this fact when relatedness only by showing that the violence perpetrated by one co-worker requiring that a railroad complete the case falls within an exception listed in against a third party. See OSHA’s 2001 relevant forms within a specific period 49 CFR 225.15. This presumption is Rule, 66 FR 5916, 5946, January 19, of time. FRA acknowledges that it may consistent with the NAM–OSHA 2001. In such cases, the employee’s job- take additional time to confirm cause of settlement agreement, 66 FR 66943, related tasks and exposures did not death. As explained, FRA needs this December 27, 2001, and with OSHA’s create or contribute to the risk that an information to prevent future casualties regulations which require that injury or illness would occur. Id. Rather, and to improve rail safety. However, ‘‘[employers] must consider an injury or these activities are events or exposures after acquiring knowledge that a illness to be work-related if an event or arising from the operation of a railroad reportable injury or illness occurred, a exposure in the work environment because they occurred in the work railroad must create a Form FRA F either caused or contributed to the environment. Likewise, normal body 6180.55a for reportable injury and resulting condition or significantly movements (e.g., walking, climbing a illness within thirty days after the aggravated a pre-existing condition.’’ 29 staircase, bending, sneezing) engaged in

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by an employee at the time of injury are assertion, the final rule does not create regulations and order, subject to any also events arising from the operation of a ‘‘geographic presumption,’’ as the appropriate conditions that the a railroad, even if the body movement event or exposure arising from the Secretary may impose.’’ ‘‘Person,’’ as is not related to the employee’s job- operation of the railroad must be a cause defined by 1 U.S.C. 1, ‘‘include[s] related tasks. See 66 FR 5916, 5957– of the injury or illness; and, therefore, corporations, companies, associations, 5958, January 19, 2001. the manifestation of a sign or symptom firms, partnerships, societies, and joint Correspondingly, events or exposures in the work environment, by itself, does stock companies, as well as involving contractors or volunteers, that not make an injury work-related. individuals.’’ occur on property owned, leased, Similarly, comments stated that the The final rule provides that a parent operated over or maintained by the definition is so broad that everything is corporation may request in writing that railroad, also arise from the operation of work-related. Again, an injury or illness FRA treat its commonly controlled a railroad, even if they do not have a is not work-related unless an event or railroad carriers, which operate as a clear connection to a specific work exposure arising from the work single, seamless, integrated United activity, condition, or substance that is environment is a discernable cause, and States rail system, as a single railroad peculiar to the railroad transportation it meets one of the general reporting carrier for purposes of part 225 business. criteria. Moreover, FRA’s definition of compliance. The written request must UP contests the work-relatedness work-relatedness is consistent with provide a list of the subsidiary railroads presumption. However, the final rule OSHA’s definition and enables OSHA controlled by the parent corporation and specifically adopts a presumption of and FRA to compare safety trends across an explanation as to how the subsidiary work-relatedness that is identical to industries. railroads operate as a single, seamless, OSHA’s presumption to provide Commenters stated that FRA should integrated United States railroad system. uniformity in reporting requirements collect information about only injuries If FRA grants such a request, the parent between OSHA and FRA and amongst and illnesses caused by ‘‘occupational’’ corporation must enter into a written railroads. Moreover, this allows events or exposures. UP claimed that, agreement with FRA specifying which railroads to report to one agency, FRA. when railroads are required to report subsidiaries are included in its railroad In addition, uniform reporting injuries or illnesses that result from system, consenting to assume requirements allow for comparing safety non-occupational events, that data will responsibility for compliance with part trends across industries and among not improve railroad safety. 225 for all named subsidiaries making railroads. Commenters also stated that FRA is not up the system, and consenting to UP also suggests that a method/ collecting data about the hazards and guarantee any liabilities owed to the evidence-based approach should be risks actually associated with the United States government that are employed. UP proposes that an injury or railroad industry. For employee injuries incurred by its named subsidiaries for illness is considered work-related if ‘‘1. and illnesses, OSHA does not require violating part 225. Any change in the The medical findings of disease or that the event or exposure be subsidiaries making up such a railroad injury are compatible with the effects of occupational in nature. Again, adopting system will require immediate a disease-producing agent or an injury OSHA’s approach allows the railroads notification to FRA and the execution of producing event to which the worker to report to one agency, FRA, and, so an amended agreement. In addition, has been exposed; 2. Sufficient exposure long as FRA maintains reporting executed agreements will be published is present in the worker’s occupational requirements consistent with those of in the docket. environment to have caused the disease; OSHA, FRA’s regulations also allow for FRA’s final rule is consistent with the and 3. The weight of the evidence comparing safety trends between Surface Transportation Board’s (STB) supports the disease as having industries. Finally, FRA uses the decision in Ex Parte No. 634 (Proposal occupational rather than non- information regarding injuries and to Require Consolidated Reporting by occupational origin.’’ Alternatively, illnesses that are not solely occupational Commonly Controlled Railroads) BNSF suggested using the NIOSH in nature to improve safety and to more (November 7, 2001). In this decision, approach when causation is not fully understand injuries and illnesses STB required that each group of obvious. As explained above, under part in the work environment. railroads that operate as a single, 225, the railroad must decide whether, integrated United States rail system considering the circumstances, it is § 225.6 Consolidated Reporting whose cumulative operating revenues more likely than not that an event or The final rule adds § 225.6, which meet the Class I threshold, submit exposure arising from the operation of provides an option for consolidated consolidated annual financial reports the railroad is a discernable cause of an railroad accident/incident reporting for that combine the operations of all their injury or illness. If an event or exposure certain integrated railroad systems. commonly controlled railroads that is a discernable cause, then the injury or Section 20901 of title 49 of the United operate as an integrated rail system illness is presumed to be work-related. States Code requires that each ‘‘railroad within the United States. Under this approach, a railroad may carrier’’ submit to FRA a monthly report Commenters to the NPRM suggested consider the various unique factors of its accidents/incidents. A ‘‘railroad that this revision will dilute reporting, associated with each employee’s carrier’’ is defined by 49 U.S.C. 20102 as and make it more difficult to compare potentially work-related injury or a ‘‘person providing railroad trends and to identify problems. illness, including, but not limited to, an transportation, except that, upon However, FRA believes that this employee’s medical and work history, petition by a group of commonly revision will, in fact, enable the agency in addition to an employee’s statements controlled railroad carriers that the to gather more meaningful and accurate regarding his or her injury or illness. Secretary determines is operating within data. One comment also sought Other commenters stated that the the United States as a single, integrated additional clarification on who can use definition creates a geographic rail system, the Secretary may by order consolidated reporting. Again, as presumption because experiencing pain treat the group of railroad carriers as a discussed, a parent corporation may in the work environment is sufficient to single railroad carrier for purposes of request consolidated reporting where its make an injury or illness work-related one or more provisions of part A, commonly controlled railroad carriers and reportable. Contrary to this subtitle V of this title and implementing operate as a single, seamless, integrated

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United States rail system. In addition, invited comments and suggestions on does not adopt this suggestion because the STB decision, referenced above, the issue. the phrase ‘‘horrible injuries’’ is vague, provides further clarification. FRA received comments that were would be difficult to enforce, and FRA generally in favor of reporting such Form F 6180.55a captures information § 225.9 Telephonic Reports of Certain accidents/incidents directly to FRA via relating to the nature of the injury. Accidents/Incidents and Other Events electronic transmission. One comment The final rule also revises the The final rule amends the accident/ suggested that certain data should be Telephonic Reporting Chart contained incident telephonic reporting collected, including railroad contact in the FRA Guide, Appendix M in order requirements related to fatalities that information closely associated with the to make it consistent with the final rule occur at highway-rail grade crossings as accident/incident, train equipment text as the chart contained in the 2003 a result of train accidents or train identification, and hazardous materials Final Rule was not consistent with the incidents. FRA had required railroads to identification. Another comment regulatory text. These amendments are report immediately to the National suggested that railroads should clarifying in nature, and will impose no Response Center (NRC), via telephone, immediately report any type of railroad additional burden on railroads. See FRA ‘‘a fatality at a highway-rail grade related fatality, including trespasser Guide for additional information. fatalities and suicides. After reviewing crossing as a result of a train accident § 225.11 Reporting of Accidents/ the issue and the comments, no changes or train incident.’’ 49 CFR Incidents 225.9(a)(2)(iii). FRA has found that are being made relating to direct confusion exists as to the applicability reporting because FRA does not In this section, the final rule lists each of this requirement when death does not currently have the infrastructure to primary accident/incident group occur at the scene of the accident/ adequately address such reporting. described in § 225.19 (i.e., Highway-rail incident, but occurs several hours or However, FRA will take these comments grade crossing; Rail equipment; and days later, after the fatally injured into consideration in any further Death, injury and occupational illness) by subsection. By identifying each person is taken to the hospital for evaluation concerning direct reporting. group of accidents/incidents with a treatment. A commenter suggested that the immediate notification of such fatalities different subsection, FRA will be better As a result, the final rule revises the is not necessary because such data is able to access data and differentiate telephonic reporting requirement for captured in the monthly report among data elements. For example, highway-rail grade crossing fatalities to submitted to FRA. FRA believes, currently, if FRA issues a violation require telephonic reporting only if however, that immediate reporting is against a railroad for alleged non- death occurs within 24 hours of the necessary so that FRA has the compliance with § 225.11, FRA’s case accident/incident. This revision is opportunity to physically investigate the tracking database captures this as a consistent with the Department of accident/incident before the scene is violation of § 225.11. With such limited Transportation, Office of Inspector cleared. Such reporting ultimately information, FRA is unable to easily General’s November 28, 2005 results in the creation of more accurate identify what type of reporting non- recommendation (Report No. MH–2006– data. A comment to the NPRM also compliance is alleged (e.g., failure to 016), which recommended that FRA suggested that a railroad cannot easily report a highway-rail grade crossing amend § 225.9 to clarify the reporting determine whether there has been a accident/incident; failure to report a rail requirements and to include criteria fatality if the individual does not die at equipment accident/incident or failure requiring railroads to report to NRC any the scene of the accident/incident. FRA to report an accident/incident involving death at a highway-rail grade crossing, believes that railroads must take a death, injury or occupational illness). only if death occurs within 24 hours of reasonable steps to learn whether a This final rule provides FRA with better the accident/incident. fatality occurred within 24 hours of the and more useful data, while also The final rule also makes a technical highway-rail grade crossing accident/ providing quicker access to such data. amendment to paragraph (a)(2)(iv) by incident. Under the current regulation at The final rule also updates this adding the words ‘‘or more’’ after § 225.9, there is no such time limit. As section to reflect the revised provisions $150,000, to clarify that the telephonic such, the final rule lessens the burden in § 225.37 regarding filing accident/ reporting requirement is triggered when on the railroads to follow-up on such incident reports with FRA via optical a train accident results in damage of accidents/incidents under § 225.9 by media (CD–ROM) and electronically via $150,000 or more to railroad and non- only requiring railroads to report if a the Internet. railroad property. fatality occurs within 24 hours. As § 225.15 Accidents/Incidents Not To In the NPRM, FRA requested discussed, this final rule is consistent Be Reported comments and suggestions on four with the Department of Transportation, issues of concern. One of these issues Office of Inspector General’s November In this section, § 225.15 is revised to was § 225.9 telephonic reporting. 28, 2005 recommendation (Report No. include a comprehensive list of injury/ Specifically, the NPRM noted that FRA MH–2006–016). A comment to the illness and rail equipment accident/ was considering changing the method NPRM also suggested that such reports incident reporting exceptions (formerly by which telephonic reports of be made electronically, rather than listed partially in § 225.15 and in the accidents/incidents, as required by telephonically, to allow for greater 2003 FRA Guide). As discussed in the § 225.9, are made. Under FRA’s current efficiency and accuracy. FRA does not Section-by-Section Analysis of § 225.5, regulations, railroads are required to currently have the infrastructure to ‘‘Definitions’’ with respect to the telephonically report certain accidents/ accommodate this suggestion. FRA definition of ‘‘Work-relatedness,’’ incidents to the NRC, who in turn does, however, currently receive OSHA’s regulations require that provides notification of the accidents/ electronic updates after the initial report ‘‘[employers] must consider an injury or incidents to FRA. The NPRM indicated to the NRC, which ensures that FRA has illness to be work-related if an event or that FRA was reviewing whether it all of the relevant information. Lastly, a exposure in the work environment would be preferable for railroads to comment to the NPRM suggested that either caused or contributed to the report these accidents/incidents directly ‘‘horrible injuries’’ should also be resulting condition or significantly to FRA via electronic transmission, and reported under § 225.9. The final rule aggravated a pre-existing condition.’’ 29

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CFR 1904.5(a). OSHA’s regulation goes employer’s establishment, the case 6180.98, ‘‘Railroad Employee Injury on to explain that ‘‘[w]ork-relatedness is would not be considered work-related. and/or Illness Record,’’ and Form FRA F presumed for injuries and illnesses If, however, the employee is made ill by 6180.97, ‘‘Initial Rail Equipment resulting from events or exposures ingesting food contaminated by Accident/Incident Record’’), as occurring in the work environment, workplace contaminants (such as lead), applicable. unless an exception in [29 CFR] or gets food poisoning from food The final rule also eliminates from the 1904.5(b) specifically applies.’’ 29 CFR supplied by the employer, the case reporting exceptions suicides and 1904.5(a). FRA established certain would be considered reportable if the attempted suicides. In doing so, FRA is reporting exceptions in § 225.15 in case meets the general reporting criteria requiring that casualties due to suicides FRA’s 2003 Final Rule and also adopted set forth at § 225.19(d)(1)–(d)(6). With and attempted suicides, that arise from OSHA’s reporting exceptions in the respect to the reporting exception listed the operation of the railroad and meet 2003 FRA Guide. in paragraph (c)(5), self-inflicted the general reporting criteria listed in FRA’s list of exceptions in this final casualties do not need to be reported § 225.19(d)(1) through (d)(6), be rule includes both the FRA created except that, for FRA reporting purposes, reported to the agency on Form FRA F exceptions and the exceptions set forth a railroad will still be responsible for 6180.55a, ‘‘Railroad Injury and Illness by OSHA at 29 CFR 1904.5(b) as reporting or recording self-inflicted Summary (Continuation Sheet),’’ as a adopted by FRA. FRA reviewed the casualties that are determined to be new category of data called ‘‘suicide applicability of each injury and illness suicides and attempted suicides that data.’’ In addition, casualties due to reporting exception as related to the qualify as accountable or reportable. suicides and attempted suicides that class of injured person, and incorporates FRA will not be providing suicide data arise from the operation of the railroad this information into the final rule text. to DOL. and meet the general reporting criteria In making this revision, FRA leaves In paragraph (d), FRA addresses the listed in § 225.19(d)(1) through (d)(6) paragraph (a) substantively unchanged. applicability of the reporting exceptions should be included on Form FRA F In paragraph (b), FRA addresses listed in paragraph (b) and (c) to 6180.55, ‘‘Railroad Injury and Illness reporting exceptions for Worker on contractors and volunteers. The Summary,’’ in Field 18, Reported Duty—Employee (Class A) injuries and reporting exceptions for employee Casualties. Under this system, a illnesses. Paragraph (b) retains the injuries and illnesses apply equally to reportable injury caused as a result of a current paragraph (b)(1) reporting volunteer injuries and illnesses and to suicidal act is reported to FRA exception relating to injuries and contractor injuries (contractor illnesses regardless of the need for other illnesses occurring in living quarters. are not reportable to FRA). Because an reporting of the event (i.e., the suicide The final rule also adds additional injury to a contractor, or injury to or resulted in a reportable train accident or reporting exceptions applicable to illness of a volunteer, must occur on highway-rail grade crossing collision). Worker on Duty—Employee (Class A) property owned, leased, operated over FRA will not report such suicide data (paragraphs (b)(2) through (b)(3)). The or maintained by the railroad (rather cases to DOL. FRA will also not include final rule also revises the NPRM than in the work environment), any suicide data (as defined in § 225.5) in its language to clarify that these exceptions reference to the term ‘‘work periodic summaries of data on the do not affect a railroad’s obligation to environment’’ in paragraph (b) is number of injuries and illnesses evaluate and report those injuries and construed to mean, for the purposes of associated with railroad operations. illnesses as another class of persons (i.e., paragraph (d) only, on property owned, Instead, FRA will maintain such suicide Employee not on duty (Class B); leased, operated over, or maintained by data in a database that is not publicly Passenger on Trains (Class C); the railroad. The application of the accessible. Accordingly, suicide data Nontrespassers-On Railroad Property exceptions as stated in paragraph (d) do will not be available on FRA’s Web site (Class D); Trespassers (Class E)), rather not reflect any change to FRA’s for individual reports or downloads. than as only Employee Not On Duty provisions, but is included to clarify the Suicide data will, however, be available (Class B). For example, an employer applicability of the reporting exceptions to the public in aggregate format on who is present in the work environment to contractors and volunteers. FRA’s Web site and via requests under as a member of the general public and Consistent with the changes made to the the Freedom of Information Act (FOIA). is injured may qualify as a Class C or definition of ‘‘event or exposure arising For additional information about FOIA Class D person, rather than as a Class B from the operation of the railroad,’’ requests, see FRA’s Web site at http:// person. This is a clarifying amendment; paragraph (d) was amended to include www.fra.dot.gov/us/foia. Suicide data therefore, it should not alter railroads’ the term ‘‘operated over.’’ FRA does not will be available to FRA’s inspectors reporting responsibilities and is believe that this clarifying amendment and other authorized representatives, consistent with the exceptions increases the burden on railroads including State agencies participating in contained in FRA’s 2003 Final Rule and because it is consistent with common investigative surveillance activities 2003 FRA Guide. industry practice as well as FRA’s long- under part 212. See Section-by-Section Paragraph (c) contains reporting standing policy. Analysis for § 225.41, ‘‘Suicide data.’’ exceptions applicable to all employees Lastly, paragraph (e) addresses States will also be able to obtain (whether on or off duty). With respect reporting exceptions for rail equipment individual reports directly from the to the reporting exception listed in accidents/incidents which were railroads pursuant to § 225.1. See paragraph (c)(3), FRA wishes to clarify included in the 2003 FRA Guide. § 225.1, ‘‘Suicide data;’’ see also Section- that an injury or illness that is solely the The agency believes that the by-Section Analysis for § 225.1, ‘‘Suicide result of an employee eating, drinking, incorporation of these exceptions into data.’’ or preparing food or drink for personal the rule will provide a better In addition, casualties due to suicides consumption is not reportable. It does understanding of FRA’s employee injury and attempted suicides that arise from not matter if the employee bought the and illness reporting requirements. the operation of the railroad and meet food on the employer’s premises or Again, the reporting exceptions do not the general reporting criteria listed in brought the food into work. For affect a railroad’s obligation to maintain § 225.19(d)(1) through (d)(6) shall also example, if the employee is injured by records of accidents/incidents as be included in Field 18, Reported choking on a sandwich while in the required by § 225.25 (Form FRA F Casualties, on Forms FRA F 6180.55,

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‘‘Railroad Injury and Illness Summary.’’ of Suicidology, railroads that have order to exclude suicides and attempted This will allow FRA to verify the tracked probable suicides on the rail suicides, railroads were required to number of forms submitted with the system report that suicides are prove cause of death by obtaining count listed on the form. The railroad responsible for 39 percent of pedestrian relevant documents to prove that a should report the person by the ‘‘type of fatalities. Additionally, a March 3, 2005, casualty was an attempted suicide or person’’ regardless of the fact that it is Chicago Tribune article, ‘‘Suicide is Top suicide. Consequently, railroads should suicide data. As such, if a trespasser Cause of Train Track Deaths; State already have knowledge of where commits suicide on the railroad, the Looks for Ways to Prevent Fatalities,’’ suicides and attempted suicides are railroad should report it as a trespasser indicates that, in 2004, there were 30 taking place. Therefore, the final rule fatality. See FRA Guide, Chapter 3. probable suicide deaths and an does not create a new duty for the Suicide data counts will also be additional three attempts involving railroads, rather it simply requires them included in casualty counts on Forms trains in Chicago alone, and that suicide to compile the data. Ultimately, by FRA F 6180.57, ‘‘Highway-Rail Grade was the leading cause of rail-related collecting this information, FRA and Crossing Accident/Incident Report,’’ and fatalities in Illinois for 2004, which led other government agencies will be able FRA F 6180.54, ‘‘Rail Equipment Illinois to implement a systematic to decrease the number of suicides and Accident/Incident Report,’’ so that the tracking program of such incidents on attempted suicides occurring on the number of casualties reported to FRA on rail property. This information railroad. Form FRA F 6180.55a, ‘‘Railroad Injury illustrates that there are a large number Amtrak stated in its comments that and Illness Summary (Continuation of fatalities occurring on railroad persons entering railroad property to Sheet),’’ for the month is consistent with property without any national initiative commit suicide are considered the number of casualties reported to to collect data that might be used to trespassers and the suicide is FRA on each of these accident/incident address these events. considered a superseding event. As reporting forms. In addition, suicide Since it appears that suicides such, Amtrak claims that an event or data counts will also be included in contribute significantly to the total exposure arising from the operation of casualty counts on Form FRA F 6180.97, number of fatalities that are occurring the railroad is not a cause. Consistent ‘‘Initial Rail Equipment Accident/ on railroad tracks, it is appropriate to with OSHA, FRA maintains a no fault Incident Record.’’ See § 225.41, ‘‘Suicide report and collect data about suicides in reporting system. As such, it does not data;’’ see also Section-by-Section addition to the other causes of death in matter whether the person caused their Analysis for § 225.5, ‘‘Definitions,’’ and the industry. By requiring that the own injury so long as the event or the FRA Guide, for additional information be reported as suicide data, exposure arising from the operation of information. these fatalities will not be included in the railroad is a discernable cause and UP requested that highway-rail grade the normally reported fatality data. This it meets the general reporting criteria. crossing accident/incidents that result new data may help FRA, organizations And, the collection of this data will help from suicides or attempted suicides not promoting safety on and around railroad to decrease the number of suicides and be included on the Form FRA F property, and suicide prevention attempted suicides that occur each year. 6180.57. As explained above, the final agencies assess the problem and Moreover, FRA will not be providing rule requires the inclusion of this develop programs to decrease the this information to DOL. information on the Form FRA F 6180.57 incidence of suicides by train. Commenters suggested that the so that the number of casualties is FRA notes that the collection of collection of suicide data will not consistent with the number of casualties suicide data will also aid the Federal improve safety. As stated above, FRA on Form FRA F 6180.55a and on the Transit Administration (FTA) in its believes that there are many benefits to Form FRA F 6180.54 that might also be collection and analysis of commuter collecting this information. Specifically, required for the same incident. In railroad accidents, since FRA provides FRA will be able to determine where addition, FRA only excludes the certain commuter railroad safety data to and how many suicides are occurring on individuals who committed or FTA. FTA relies on FRA to provide to the railroad. Suicides will be segregated attempted suicide and, therefore, it data on the types of accidents from other fatalities, avoiding an over casualties to others involved in the same occurring on commuter rail, their count of fatalities associated with incident as a result of the suicidal act primary causes, and the consequences, railroad operations, and data will be may be reportable. Moreover, a Form in terms of fatalities (which for FTA gathered systematically so that others FRA F 6180.57 must be created for any includes suicides under 49 CFR part may use the data to design impact regardless of cause or intent. The 659), injuries and property damage. The interventions. Form FRA F 6180.57 does not require data FRA provides to FTA, however, is In order for FRA to capture suicide any Personal Identifying Information somewhat incomplete, in that FRA data, the final rule requires railroads to (PII) and, as such, FRA is not as cannot provide suicide data to FTA. indicate suicide or attempted suicide on concerned about making the individual Consequently, FTA, which uses this Forms FRA F 6180.55a, ‘‘Railroad Injury forms available to the public. See FRA information to better inform their and Illness Summary (Continuation Guide. assessments of safety plans and hazard Sheet);’’ FRA F 6180.54, ‘‘Rail FRA believes that it is important to analysis performed by commuter rail Equipment Accident/Incident Report;’’ collect data on suicides. Death by grantees applying for FTA grants, must and FRA F 6180.57, ‘‘Highway-Rail suicide is a national problem as work with an incomplete data set. Grade Crossing Accident/Incident indicated by the fact that more than Comments suggested that the Report;’’ as follows: 30,000 Americans die by suicide each collection of suicide data would create (1) Form FRA F 6180.55a—The final year. Currently, there are no reliable a duty on the part of the railroad to rule requires that an ‘‘X,’’ representative reports about how many of these deaths those individuals attempting to commit of ‘‘suicide or attempted suicide,’’ be occur on railroad property. The CPUC suicide as the railroads would now be placed in ‘‘Special Cause Code’’ block 5r, indicates that more than 55 percent of aware of potential suicide hotspots. when applicable. The final rule also pedestrian railroad fatalities in However, prior to this Final Rule, changes the title of block 5m from California are attributed to suicide, and railroads were exempt from reporting ‘‘Result’’ to ‘‘Tools.’’ This change is a according to the American Association suicides and attempted suicides. In correction to the current form and is

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necessary to maintain consistency with suicides. Accordingly, FRA revises if a railroad cannot obtain the required types of Circumstance Codes in Chapter 6 of the FRA Guide to clarify information after making a documented, Appendix F of the FRA Guide. that, in order to fulfill its good faith effort for six months, then the (2) Form FRA F 6180.54—The final responsibilities to maintain accuracy in railroad may discontinue its rule adds four Miscellaneous Cause reporting, a railroad must try to obtain investigation and report the casualty as Codes for use in block 38 as follows: (i) verbal or written confirmation of a a trespasser fatality. Code M309 ‘‘Suicide (Highway-Rail trespasser’s cause of death by contacting Commenters also stated that the Grade Crossing Accident);’’ (ii) Code the coroner, public police officer or follow-up requirements are too M310 ‘‘Attempted Suicide (Highway- other public authority by telephone and, burdensome. SEPTA suggested that Rail Grade Crossing Accident);’’ (iii) if unsuccessful in obtaining the needed railroads should only have to follow-up Code M509 ‘‘Suicide (Other Misc.);’’ and information by telephone, must follow- for 3 months, rather than 6 months. (iv) Code M510 ‘‘Attempted Suicide up in writing. The railroad must Moreover, other comments suggested (Other Misc.).’’ These codes are added to continue its efforts to obtain this that only one document request and one Appendix C, ‘‘Train Accident Cause information for a period of six months follow-up request should be necessary. Codes’’ to refer to ‘‘Suicide or Attempted following the month in which the However, based on past comments, Suicide’’ for use in ‘‘Primary Cause fatality occurred. The railroad must railroads have asserted that public Code’’ block 38. The final rule also keep a record of its efforts to obtain such authorities require additional time to requires railroads to include suicides confirmation. This record and any conclude that a fatality is a suicide. and attempted suicides in the casualty documentation related to the case Therefore, FRA believes that the counts in blocks 46, 47, and 48, as obtained by the railroad must be extended investigation period is applicable. available for review and copying by an necessary. Once a railroad obtains a (3) Form FRA F 6180.57—The final FRA representative under the same determination, they may terminate their rule adds a code for ‘‘Suicide or criteria as set forth in § 225.35(b). If a investigation. The FRA Guide indicates Attempted Suicide’’ to block 41 (the railroad cannot obtain confirmation of that a railroad must follow-up in writing final rule also changes, among other the cause of death by the end of the six only if a public authority cannot be things, the title of block 41 from ‘‘Driver’’ month period, the railroad shall report reached by telephone, and then must to ‘‘Highway User.’’). In addition, the the fatality as a trespasser fatality. continue such efforts for six months or final rule requires railroads to include FRA also revises Chapter 6 of the FRA until they have received confirmation. suicides and attempted suicides, when Guide to clarify what documentation is FRA does not mandate how the appropriate, in the casualty counts in required to prove that an individual continued efforts be conducted, in block numbers 46, 49, and 52. See FRA committed suicide or attempted to writing or by telephone, so long as those Guide for additional information. commit suicide. FRA understands that efforts are documented. Consequently, In addition, when appropriate, the railroads often have difficulty obtaining after attempting to reach the public final rule requires railroads to indicate copies of death certificates and/or have authority once by phone and in writing, whether a suicide or an attempted to wait until the death certificate a railroad may select the means by suicide was a cause of an injury or becomes publicly available. As such, as which they continue their investigation. illness or an accident or incident in the explained in the FRA Guide, railroads Again, if a railroad cannot obtain the applicable narrative or description may accept verbal confirmation of a required information after making a section on the following forms: FRA F suicide or attempted suicide from a documented, good faith effort for six 6180.98, ‘‘Railroad Employee Injury coroner, public police officer, or other months, then the railroad may and/or Illness Record’’ and FRA F public authority. When receiving verbal discontinue its investigation and report 6180.97, ‘‘Initial Rail Equipment confirmation of a suicide or attempted the casualty as a trespasser fatality. Accident/Incident Record.’’ While suicide, a railroad must create an audit Finally, FRA believes that these efforts employee suicides or attempted suicides trail of that confirmation so that FRA are necessary based on the past apparent are rare, FRA is still interested in can independently verify and confirm over-reporting of trespasser casualties capturing that information in order to the determination. As part of this audit that were in fact suicides. learn more about suicides and trail, for example, the railroad must attempted suicides in the work document the date and time of verbal § 225.17 Doubtful Cases environment. confirmation in addition to the name, In this section, the final rule amended Commenters inquired as to whether title, address, and telephone number of part 225 by re-designating the ‘‘Alcohol the NPRM’s proposed cause codes were the person who determined the cause of or Drug Involvement’’ provisions, sufficient to capture the facts death or injury. currently contained in § 225.17(d), to a surrounding suicides and attempted Commenters stated that this newly added § 225.18. FRA has suicides. FRA believes that the codes information is too difficult to obtain, observed that the inclusion of the two and instructions listed above are and that public authorities will often unrelated topics in one section has led sufficient at this time to identify key not cooperate with the railroads. to confusion. This revision is intended information. FRA welcomes the Similarly, SEPTA suggested that the law to reduce possible confusion and does inclusion of additional information prevents them from obtaining the not substantively change FRA’s current regarding such accidents/incidents in written confirmation necessary to prove accident/incident reporting the applicable form’s narrative section that a person committed suicide or requirements. (e.g., that the person is homeless). attempted to commit suicide. However, FRA notes that it is also concerned railroads have been able to obtain this § 225.18 Alcohol or Drug Involvement that suicides are being reported as information under the requirements in As stated above, the final rule adds a trespasser fatalities, because some the 2003 Final Rule and, therefore, FRA new section, § 228.18, re-designating the railroads have not always made a expects that they will continue to be Alcohol and Drug provisions currently reasonable inquiry in their efforts to able to do so. In addition, FRA hopes contained in § 225.17(d) to a new determine the cause of death. In fact, that allowing verbal confirmation will section, § 225.18, for purposes of clarity FRA has found that a number of ease the railroad’s burden. Finally, only. The final rule also makes the reported trespasser fatalities are actually when investigating a trespasser fatality, following technical amendments:

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changing the word ‘‘title’’ to ‘‘chapter,’’ to requires, that, to be reportable, a are subject to the same recording criteria reference the correct term; inserting ‘‘49 significant aggravation of a pre-existing that apply to other injuries and CFR’’ in front of § 219.209, for clarity; case must be a ‘‘new case’’ (i.e., a case illnesses. and changing the word ‘‘paragraph’’ to in which either the employee has not Lastly, the final rule amends ‘‘section,’’ to accommodate the proposed previously experienced a reported paragraph (d)(6) to include covered data re-designation of § 225.17(d) to § 225.18 injury or illness of the same type that cases. The addition of covered data (a)–(d). affects the same part of the body, or the cases to § 225.19(d) is a technical Commenters suggested that employee previously experienced a amendment and intended to correct the contractors and subcontractors be reported injury or illness of the same inadvertent omission of the criteria in included in § 225.18. The final rule does type that affected the same part of the the current rule text. The addition does not adopt this suggestion because it is body but had recovered completely (all not alter FRA’s reporting criteria or its outside of the scope of the proposed signs and symptoms had disappeared) policy on covered data as stated in rulemaking. Specifically, the NPRM did from the previous injury or illness and § 225.39. not propose any substantive changes, an event or exposure in the work § 225.21 Forms rather the sections were simply divided environment caused the signs or into two sections for purposes of clarity, symptoms to reappear). In this section, the final rule amends and several technical amendments were The final rule also revises paragraph paragraph (j) in relation to the use of made. (d) by amending the general reporting Form FRA F 6180.107, ‘‘Alternative criteria, specifically paragraph (d)(2), Record for Illnesses Claimed to be § 225.19 Primary Groups of Accidents/ which currently states, ‘‘injury to any Work-Related.’’ Specifically, the final Incidents person that results in medical rule makes the use of the Form FRA F In this section, the final rule revises treatment,’’ to include ‘‘significant injury 6180.107, in place of Form FRA F paragraph (d) to clarify the agency’s to any person’’ and ‘‘loss of 6180.98, ‘‘Railroad Employee Injury existing reporting requirements for consciousness to any person.’’ Failure to and/or Illness Record,’’ optional, rather death, injury, and occupational illness include these classes of injuries as than mandatory, and amends and and to further conform those reportable for ‘‘any person,’’ rather than redesignates the instructions for the use requirements to OSHA’s recordkeeping just railroad employees, in the general of the form currently set forth at and reporting regulations. criteria in the agency’s 2003 Final Rule § 225.21(j) to § 225.25(i), under the As discussed, FRA’s accident/ (68 FR 10107, March 3, 2003) has section entitled ‘‘Recordkeeping.’’ See incident reporting regulations that resulted in FRA not capturing data for Section-by-Section Analysis for concern railroad occupational casualties non-employees with respect to § 225.25, ‘‘Recordkeeping,’’ for are maintained, to the extent significant injuries. additional information and a discussion practicable, in general conformity with Amtrak expressed concern that of the relevant comments. OSHA’s recordkeeping and reporting extending the reporting criteria to non- The final rule also amends this regulations in order to enable data employees would impose a significant section by adding a paragraph (k) to comparisons on occupational casualties burden on the passenger railroads. As address the newly created Form FRA F between various industries, to allow an initial matter, significant injuries are 6180.150, ‘‘Highway User Injury Inquiry integration of railroad industry data into limited to a small number of injuries Form.’’ See FRA Guide. Form FRA F national statistical databases, and to (e.g., fractured or cracked bone or 6180.150 shall be used by the railroads improve the quality of data available for punctured eardrum), which must be in determining whether a highway user analysis of casualties in railroad diagnosed by a qualified physician, suffered a reportable injury or illness in accidents/incidents. See Section-by- further narrowing the number of addition complying with part 225’s Section Analysis for § 225.5, probable cases. In addition, significant accident/incident requirements. A copy ‘‘Definitions’’ with respect to injuries are generally serious, and are of the Form FRA F 6180.150 shall be ‘‘Discernable cause.’’ Moreover, the type of injuries the railroads should sent to each potentially injured highway maintaining such compatibility allows already be investigating, and will user, or their representative, involved in railroads to only have to report generally meet the other general a highway-rail grade crossing accident/ occupational casualties to FRA, rather reporting criteria (i.e. someone with a incident along with a cover letter and a than to both OSHA and FRA. See 29 broken bone will most likely receive prepaid/preaddressed return envelope. CFR 1904.3. medical treatment). As such, these See FRA Guide, Chapter 10 for complete With respect to employee injury and changes should not substantially instructions. A railroad shall not send a illness recording, OSHA’s regulations increase the investigative duties of the Form FRA F 6180.150 to a highway require that ‘‘each employer * * * must railroad or the number of cases they are user, or a highway user’s representative, record each fatality, injury and illness reporting. With respect to loss of who has died as a result of the accident/ that is work-related; and is a new case; consciousness cases, railroads will not incident. The railroad shall complete and meets one or more of the general be required to report cases where the Part I of Form FRA F 6180.150 and send recording criteria * * * or the passenger’s loss of consciousness is not the form with the completed Part I to application to specific cases.’’ 29 CFR due to an event or exposure arising from the highway user, or their 1904.4(a). the operation of the railroad. For these representative. See FRA Guide for By rewording paragraph (d) to more reasons, FRA does not believe that the complete instructions. Moreover, the closely model OSHA’s wording, the additional reporting criteria for non- cover letter shall be drafted in final rule better conforms its reporting employees will significantly increase accordance with the instructions requirements to that of OSHA. The final the number of reportable cases. contained in the FRA Guide. See FRA rule also clarifies that only new cases In addition, the final rule amends Guide, Chapter 10. are reportable (the current regulation paragraph (d)(6)(E) (previously (d)(6)(v)) requires that the injury or illness must to remove the word ‘‘independently’’ for § 225.25 Recordkeeping be a new case or a significant purposes of clarity. As explained in the In this section, the final rule aggravation of a pre-existing injury or Section-by-Section Analysis, MSD’s are eliminates from paragraph (a) the words illness). The final rule, therefore, injuries and illnesses under the rule and ‘‘that arise from the operation of the

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railroad,’’ in order to maintain Although sympathetic to these concerns, that railroads were allowing these conformity with the definition of FRA was disappointed in the quality of data records to remain unevaluated for ‘‘accountable injury or illness.’’ See provided in the past related to occupational several months or more without Section-by-Section Analysis for § 225.5, illness. Indeed, in recent years the number of updating or reviewing them for work- ‘‘ ’’ such events reported to FRA has been Definitions, for additional extremely small. FRA has an obligation to relatedness. Moreover, FRA found that information. Moreover, such language is verify, insofar as possible, whether the railroads were not creating the Form redundant with respect to reportablility, railroad’s judgments rest on a reasonable FRA F 6180.107 record within seven as § 225.19(d) clearly indicates an injury basis, and discharging that responsibility working days after receiving or illness is only reportable if an event requires that there be a reasonable audit trail information or acquiring knowledge that or exposure arising from the operation to verify on what basis the railroad’s an employee asserted an occupational of a railroad is a discernable cause of the decisions were made. illness, as required by the FRA Guide. resulting condition or a discernable As a result, FRA established, at Consequently, this system of accounting cause of a significant aggravation to a § 225.25(i)(1), a separate category of did not focus responsibility for pre-existing injury or illness. claimed occupational illnesses to be reporting decisions, did not provide an The final rule also revises the criteria recorded on a new form, Form FRA F appropriate audit trail, did not result in for using Form FRA F 6180.107, 6180.107, ‘‘Alternative Record for a body of information that can be used ‘‘Alternative Record for Illnesses Illnesses Claimed to be Work-Related.’’ in the future for research into the causes Claimed to be Work-Related,’’ and sets This category is comprised of: Illnesses of prevalent illnesses, and was not forth all of the information that must be for which there is insufficient helpful in correcting the under- included in an alternative railroad- information to determine whether the reporting of occupational illnesses to designed record that may be used in lieu illness is work-related; illnesses for FRA. of the form. which the railroad has made a In order to correct this problem, the Prior to FRA’s most recent preliminary determination that the final rule refines the circumstances and amendments to part 225 in 2003, FRA illness was not work-related; and procedures related to the recording of required that all accountable and illnesses for which the railroad has claimed occupational illnesses on Form reportable injuries and illnesses be made a final determination that the FRA F 6180.107. Specifically, the final recorded on Form FRA F 6180.98, illness is not work-related. rule allows the use of the form to record ‘‘Railroad Employee Injury and/or For any case later determined to be only those claimed occupational Illness Record,’’ or an equivalent record reportable, under § 225.25(i)(2), the illnesses for which the railroad carrier containing the same information. The railroad has been required to remove the has not received, from the employee or subset of those cases that qualified for designation ‘‘illness claimed to be work- their representative, information reporting were then reported to FRA on related’’ and transfer the record to the sufficient to determine whether the Form FRA F 6180.55a, ‘‘Railroad Injury reporting officer for retention and occupational illness is work-related. and Illness Summary (Continuation reporting in the normal manner. In the The final rule also includes, among Sheet).’’ If the case was not reported, the event the railroad determined the case other things, requirements that railroad was required to state, on Form was not reportable, § 225.25(i)(3) railroads: enter each illness claimed to FRA F 6180.98, ‘‘Railroad Employee requires that the railroad record an be work-related on the record no later Injury and/or Illness Record,’’ or the explanation in ‘‘narrative’’ block 19 of than seven working days after receiving equivalent record, the reason the injury Form FRA F 6180.107, ‘‘Alternative information or acquiring knowledge that or illness was not reportable. According Record for Illnesses Claimed to be an employee is claiming they have to the final rule preamble, 68 FR 10107, Work-Related,’’ describing the reason(s) incurred an occupational illness; make 10118, March 3, 2003: the railroad made that determination, a good faith effort to obtain information Although this system has generally worked making reference to the ‘‘most necessary on occupational illness cases well, problems have arisen with respect to authoritative’’ information relied upon. to make a reporting decision by accounting of claimed occupational illnesses. FRA believed that this system of December 1 of the next calendar year; As further explained below, railroads are accounting for contested illnesses document the receipt of new or subject to tort-based liability for illnesses and injuries that arise as a result of conditions in would focus responsibility for reporting additional case information in the workplace. By their nature, many decisions and provide an appropriate ‘‘narrative’’ block 19 of Form FRA F occupational illnesses, particularly repetitive audit trail. In addition, FRA thought 6180.107 within fifteen calendar days of stress cases, may arise either from exposures that it would result in a body of receipt, compared to the seven days outside the workplace, inside the workplace, information that could be used for proposed in the NPRM, and re-evaluate or a combination of the two. Accordingly, research into the causes of prevalent the case in light of the new information issues of work-relatedness become very illnesses, particularly in the case of within forty-five calendar days of prominent. Railroads evaluate claims of this musculoskeletal disorders. See 68 FR receipt of the information, compared to nature using medical and ergonomic experts, often relying upon job analysis studies as 10107, 10118, March 3, 2003. the thirty days proposed in the NPRM; well as focusing on the individual claims. Unfortunately, this has not been the complete a Form FRA F 6180.98 for any With respect to accounting and case. claimed occupational illness case reportability under part 225, railroad Rather than use the Form FRA F determined to be accountable or representatives asserted their concern that 6180.107 ‘‘Alternative Record for reportable within seven calendar days of mere allegations (e.g., receipt of a complaint Illnesses Claimed to be Work-Related,’’ making such determination; retain the in a tort suit naming a large number of to record only those illnesses described record in accordance with the plaintiffs) not give rise to a duty to report. above, FRA found that railroads were provisions set forth in § 225.27 and They added that many such claims are frequently recording all occupational report the illness in accordance with the settled for what amounts to nuisance values, often with no admission of liability on the illnesses on Form FRA F 6180.107 as a regular reporting requirements; and part of the railroad, so even the payment of matter of practice, even before provide complete narratives on Form compensation is not clear evidence that the evaluating the sufficiency of FRA F 6180.107 for those cases the railroad viewed the claim of work- information provided and/or work- railroad determines are not reportable. relatedness as valid. relatedness. Furthermore, FRA found The final rule also specifically defines

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what data elements an alternative Specifically, AAR asserted that there is § 225.25(b)(28) and (e)(28), and the railroad-designed Form FRA F 6180.107 usually litigation surrounding these newly created (j)(25), to reflect that the must contain. types of injuries and, as such, it is date required is the initial date the form Commenters suggested that there is no difficult to fully investigate the was signed/completed. FRA finds it evidence of underreporting of illnesses. Moreover, AAR claims that it necessary to make this change because occupational illnesses and, therefore, will be difficult for FRA to determine certain railroads do not retain the initial the narrowing of the use of the Form whether the railroads made a good faith date a record was completed, but only FRA F 6180.107 would impose a effort to determine causation. As an the date of the most recent update to the significant burden on the railroads. As initial matter, the railroads’ concerns record. Consequently, FRA is unable to explained above, FRA has found that about litigation should not prevent them discern if the railroad entered each the railroads have routinely used the from making reasonable inquires in reportable and accountable injury and Form FRA F 6180.107 to record all addition to updating the Federally illness and each reportable and occupational illnesses and have failed to required forms as they receive and accountable rail equipment accident/ review additional evidence for lengthy review new information. However, FRA incident on the appropriate record, as periods of time, and that use of the form specifically created the Form FRA F required by § 225.25(a) through (e), no has resulted in the under-reporting of 6180.107 as an alternative form to later than seven working days after occupational illnesses. FRA believes provide the railroads with additional receiving information or acquiring that it is necessary to limit the use of the time to investigate these illnesses knowledge that an injury or illness or form to situations where the cause has because of the unique nature of rail equipment accident/incident has not yet been determined, to avoid abuse occupational illnesses and the external occurred, as required by § 225.25(f). of the form, to create an up-to-date audit delays caused by litigation. Railroads FRA believes that specifying the date trail, to continue to provide additional should document their efforts, record will resolve any confusion regarding the time to investigate causation based on new information, and evaluate that new requirement. The final rule creates a the unique nature of occupational information as required so that FRA can similar requirement for the alternative illnesses and to ensure that additional determine whether they are making a railroad-designed Form FRA F evidence is considered within a good faith effort. Again, the additional 6180.107, ‘‘Alternative Record for reasonable period of time. requirements are necessary based upon Illnesses Claimed to be Work-Related,’’ Many of the commenters critiqued the the railroads’ past use of the Form FRA and Forms FRA F 6180.98, 6180.97, and requirement that railroads update the F 6180.107 to document all 6180.107. See Section-by-Section forms and review additional occupational illnesses without making Analysis for Appendix H, ‘‘Forms.’’ information within a certain period of an initial causal determination, even in § 225.27 Retention of records time. Several railroads also requested cases when work-relatedness was additional time to review new evidence obvious, and then failing to update the In this section, the final rule adds a and to update the forms. During the form when they acquired new five-year record retention requirement hearing on the NPRM, FRA requested information within a reasonable time for Form FRA F 6180.107, ‘‘Alternative that the railroads provide FRA with a period. Record for Illnesses Claimed to be timeframe that they believe is The final rule amends the Work-Related’’ and Form FRA F appropriate to update the forms and requirement at § 225.25(b)(6) so that the 6180.150, ‘‘Highway User Injury Inquiry review additional evidence. AAR alternative railroad-designed record for Form.’’ The 2003 Final Rule did not set suggested that the current reporting Form FRA F 6180.98, ‘‘Railroad forth a retention period for the Form timeline, which requires the railroad to Employee Injury and/or Illness Record,’’ FRA F 6180.107 and the Form FRA F update the form by December 1 of the requires the input of the ‘‘Employee 6180.150 is a newly created form. Five following year, is appropriate. However, identification number’’ only (eliminating years is the same retention period as AAR also felt that 365 calendar days for privacy reasons the employee social that of Form FRA F 6180.98, ‘‘Railroad would be appropriate. In its comments, security number option). The final rule Employee Injury and/or Illness Record,’’ AAR failed to explain why such a makes the same amendment to the and is appropriate for accurate lengthy period of time would be alternative railroad-designed record for recordkeeping and auditing purposes. In necessary. As explained above, railroads Form FRA F 6180.107, ‘‘Alternative addition, the final rule makes a have used the Form FRA F 6180.107 to Records for Illnesses Claimed to be technical change by restructuring the avoid reporting occupational illness by Work-Related.’’ The final rule also format of paragraph (a) in order to failing to reconsider additional makes corresponding changes for Forms provide additional clarity. information and to fully investigate the FRA F 6180.98 and 6180.107. See FRA The final rule also adds a requirement occupational illness. As such, FRA does Guide. that, in the event a railroad opts to not believe railroads need 365 days to The final rule replaces the term ‘‘log submit their monthly Form FRA F simply update a form and to consider entry’’ at § 225.25 (b)(28) with ‘‘record’’ 6180.55, ‘‘Railroad Injury and Illness new evidence. Upon review, the final and ‘‘report’’ at § 225.25 (e)(28) with Summary’’ via optical media or rule lengthens the amount of time that ‘‘record.’’ Both of these sections refer to electronically via the Internet, rather the railroads have to review new ‘‘records,’’ specifically alternative than in hard copy, the railroad shall evidence and to update the Form FRA railroad-designed Form FRA F 6180.98, retain the original completed hard copy F 6180.107 from 30 days to 45 days. ‘‘Railroad Employee Injury and/or for a period of five years after the Moreover, the Form FRA F 6180.107 is Illness Record’’ and Form FRA F calendar year to which it relates. If the an optional form that the railroads may 6180.97, ‘‘Initial Rail Equipment railroad opts to submit the report to use for occupational illnesses where Accident/Incident Record,’’ FRA via the Internet, the final rule they have not yet determined the cause respectively. This amendment is requires the railroad to also retain a of the injury or illness. technical, and is not intended to effect hard copy print out of FRA’s electronic AAR also submitted comments any substantive change. notice acknowledging receipt of the suggesting that the railroads should not The final rule also amends the submission for a period of five years be required to seek out information on requirements for alternative railroad- after the calendar year to which the claimed occupational illnesses. designed records by amending report acknowledged relates. These

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requirements are made in light of the individuals may be responsible for to read, ‘‘Optical media transfer and new electronic submission options in keeping the records. By amending the electronic submission.’’ In 1994, at the § 225.37, ‘‘Optical media transfer and regulation, railroads will be able to request of many railroads, FRA designed electronic submission,’’ of this final rule. accurately indicate who the custodians a method for railroads to submit their The final rule also adds system are and where the custodians and monthly accident/incident reports to standards for the electronic retention, by records are located. FRA using computer technologies. At railroads, of accident/incident records. In addition, FRA notes that it the time, high speed Internet access was Historically, railroads have retained published a Notice of Interpretation in not available in many locations. Most these records in hard copy form. the Federal Register on March 30, 2009, Internet users used voice grade phone Railroads may maintain these records informing interested parties of its lines to access the Internet. Transferring electronically, so long as the integrity of application and enforcement of the high volumes of data was difficult and the records are maintained. In order to harassment or intimidation provisions often led to data transmission errors ensure such integrity, the final rule adds contained in 49 CFR part 225, (missing records or errors in characters minimum system requirements for the specifically relating to situations in received in transmission). The other electronic retention of accident/incident which a supervisor or other railroad technology used for sending data was a records. These system standards do not official accompanies an injured nine-track magnetic tape or 31⁄2 inch become effective until after October 31, employee into an examination room. ‘‘floppy disk.’’ Both the 9-track tape and 2011. The final rule establishes this See 74 FR 14091. FRA includes that floppy disk use a magnetic surface to delayed effective date, with respect to Interpretation here for interested parties, record data. Due to the probability of this requirement only, to provide as follows: errors in both data transmission and railroads with sufficient time to bring magnetic media, FRA required a Batch any electronic retention systems into A. General Principle Control Sheet (Form FRA F 6180.99) to compliance. Harassment and intimidation occur in verify a complete and accurate receipt of A commenter stated that railroads do violation of § 225.33(a)(1) when a railroad all data. not receive receipts from FRA supervisor accompanies an injured employee The current state of computer acknowledging receipt of their into an examination room, unless one or technology has changed significantly. electronic reports. FRA is reviewing this more of the exceptions listed in section II(B) High-speed Internet access is almost issue to ensure that railroads receive of this notice exists. ubiquitous, via cable, DSL, and satellite. such receipts when electronic reports B. Exceptions Transmission using phone lines and are properly submitted. A commenter FRA recognizes that there are limited wireless (using cell phone technology) also stated that the electronic records circumstances in which it is appropriate, and has also improved. Optical media (CD– retention requirements are redundant indeed preferable, for a supervisor to ROM) is very reliable and the data is and burdensome because railroads will accompany an injured employee into an ‘‘burned’’ into the disk. Optical media have to retain every minor change, and examination room. Thus, FRA believes that has replaced magnetic media for most will also result in a high cost to the limited exceptions to the general principle data transfer (USB flash drives are not railroads to both report and store such articulated in section II(A) of this notice are necessary. Consequently, FRA recognizes the intended for this type of data exchange). reports. However, FRA needs to track following limited exceptions: In amending the current regulation, FRA the development of these forms for (1) The injured employee issues a has taken into account the current purposes of accurate auditing. In voluntary invitation to the supervisor to computer technologies by eliminating addition, the ability to electronically accompany him or her in the examination the requirement for a Batch Control submit forms should ease any possible room. The injured employee must issue this Sheet, and substituted ‘‘magnetic media’’ burden. Moreover, railroads are already invitation freely, without coercion, duress, or with ‘‘optical media.’’ Further, FRA required to store many of these records. intimidation. For example, an injured allows for document transmission using And, with respect to the Form FRA F employee may seek the attendance of a supervisor where the supervisor is a friend. the .jpg and .pdf formats. 6180.55, the final rule only seeks an This exception does not encompass The final rule also makes two changes extra 36 months of records (with one invitations issued by third parties, including related to Form FRA F 6180.55, report per month, for 36 months). This physicians, unless the invitations are made ‘‘Railroad Injury and Illness Summary.’’ burden is further eased by the fact that pursuant to the request of the injured FRA believes that both of these changes the electronic retention system employee. will reduce railroad burdens related to standards do not go into effect until (2) The injured employee is unconscious or completing and submitting this form. after October 31, 2011. In addition, otherwise unable to effectively communicate The final rule replaces the oath and railroads are not required to retain material information to the physician and the notarization requirement of Form FRA F supervisor’s input is needed to provide such 6180.55, ‘‘Railroad Injury and Illness records electronically. material information to the physician. In Summary,’’ with a requirement that the § 225.33 Internal Control Plan these circumstances, the supervisor is assisting the injured employee in providing signature be signed under penalty of In this section, the final rule clarifies information to the physician so that the perjury in accordance with 28 U.S.C. the current ambiguity of element injured employee may receive appropriate 1746. Section 20901 of Title 49 of the number 11 of the internal control plan and responsive medical treatment. United States Code requires a railroad to to allow railroads to have multiple A commenter requested that the final file an Accident/Incident report ‘‘under named custodians and locations of rule ‘‘include safety’’ in this section. oath’’ no later than 30 days after the end completed Forms FRA F 6180.107, However, the intended meaning of this of each month. To fulfill this ‘‘Alternative Records for Illnesses comment is unclear. Regardless, safety requirement, FRA currently requires a Claimed to be Work-Related,’’ or the is a critical component of § 225.33, railroad reporting officer to make a alternate railroad-designed forms and along with all of FRA’s regulations. sworn statement, under oath, before a supporting documentation. FRA notary public each month attesting to recognizes that railroads do not § 225.37 Optical Media Transfer and the accuracy of that month’s necessarily keep completed Claimed Electronic Submission submission. The question has arisen as Occupational Illness Records in a The final rule updates the title of this to whether an un-sworn, un-notarized centralized location, and that different section, to reflect changes in technology, statement is adequate to fulfill the

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section 20901 oath requirement. In the railroad an electronic notice activities under part 212 will have 1976, Congress addressed the use of acknowledging the agency’s receipt of access to relevant claims and medical ‘‘unsworn declarations under penalty of Form FRA F 6180.55 reports which are records in addition to Federal records perjury,’’ in lieu of a sworn affidavit. filed electronically via the Internet. and reports pursuant to § 225.35(b), Section 1746 of Title 28 of the United Railroads must also maintain a hard which do contain PII. State access to States Code, entitled ‘‘Unsworn copy of this acknowledgment notice for these documents is limited to their role declarations under penalty of perjury,’’ at least five years after the calendar year in investigative activities and is for the provides that ‘‘wherever, under any law to which the report acknowledged purpose of improving safety; therefore, of the United States or under any rule, relates, in accordance with § 225.27(c) the final rule does not limit State access regulation, order, or requirement made of this final rule. The final rule also pursuant to part 212. Once a State pursuant to law, any matter is required removes the language in paragraph (e), obtains copies of documents pursuant to or permitted to be supported, and replaces it with a statement part 212 or § 225.1, their disclosure and evidenced, established, or proved by the requiring that railroads choosing to use use are governed by the State’s privacy sworn declaration, verification, the optical media transfer option, or the laws. Again, FRA wants to limit the certificate, statement, oath, or affidavit, electronic submission via Internet distribution and use of the individual in writing of the person making the option, must use one of the approved records and reports due to the sensitive same (other than a deposition, or an formats specified in the FRA nature of the information, and has oath of office, or an oath required to be Companion Guide. FRA will reject limited the general public’s access to the taken before a specified official other submissions that do not adhere to the extent reasonably practicable by than a notary public), such matter may, required formats, which may result in limiting its availability online through with like force and effect, be supported, the issuance of one or more civil penalty FRA. evidenced, established, or proved by the assessments against a railroad for failing Commenters stated that States wanted unsworn declaration, certificate, to provide timely submissions of access to these reports to ensure the verification, or statement, in writing of required reports as required by § 225.11. accuracy of their own databases and for such person which is subscribed by The previous requirements of paragraph other safety purposes. FRA believes that him, as true under penalty of perjury, (e) are no longer necessary because they the States should have access to the and dated * * *’’ and provides addressed issues relating to magnetic ‘‘Suicide data’’ in addition to the examples of the form the declaration, media. individual reports, pursuant to part 212 certificate, verification, or statement § 225.41 Suicide Data and § 225.1, so that they may take steps must take. Consequently, the oath to understand and prevent suicides requirement of section 20901 can be met In this section, the final rule adds occurring on the railroad. As stated via an unsworn, un-notarized statement, § 225.41 ‘‘Suicide Data,’’ to detail FRA’s above, pursuant to § 225.1, States only so long as the statement meets the intended use of suicide data. See have access to certain reports (e.g., requirements set forth in 28 U.S.C. 1746. Section-by-Section Analysis for Forms FRA F 6180.54, FRA F 6180.57 The final rule also updates the § 225.15, ‘‘Accidents/incidents not to be and FRA F 6180.55a) and do not have 6 regulatory text to include provisions reported’’ for additional information. access to any records (e.g., Forms FRA In the NPRM, FRA requested allowing railroads to make their F 6180.98 and FRA F 6180.97). Forms comments and suggestions regarding monthly reporting submissions (Form FRA F 6180.54, FRA F 6180.57, and States’ access to records containing FRA F 6180.54, ‘‘Rail Equipment FRA F 6180.55a do not contain PII and ‘‘suicide data.’’ FRA is concerned about Accident/Incident Report’’; Form FRA F the FRA Guide contains instructions the public use and dissemination of this 6180.55a, ‘‘Railroad Injury and Illness requiring railroads to not include any data due to its sensitive nature, but also Summary (Continuation Sheet)’’; and PII in the narrative section. As such, wants States to have access to such Form FRA F 6180.57, ‘‘Highway-Rail FRA is not concerned about allowing information for safety and enforcement Grade Crossing Accident/Incident the railroads to provide those records to purposes. Under the 2003 Final Rule, Report’’) to FRA via optical media (CD– the States pursuant to § 225.1. States could obtain reports directly from ROM) or electronically via the Internet. As discussed above, State agencies railroads pursuant to § 225.1. In Batch control forms (Form FRA F participating in investigative activities addition, State agencies participating in 6180.99) are no longer required for under part 212 can obtain records and investigative activities under part 212 submission. Form FRA F 6180.55 reports from the railroads and FRA. In could obtain records and reports from ‘‘Railroad Injury and Illness Summary’’ this case, State agencies will have access the railroads and FRA. reports and Form FRA F 6180.81 to documents containing PII. Once the The final rule does not amend § 225.1 ‘‘Employee Human Factor Attachment’’ State agencies’ obtain these documents, as it relates to State access; as such, reports may also be submitted through their disclosure will be subject to State States may still obtain reports directly these means. However, the Form FRA F privacy laws rather than FOIA requests. from a railroad. All of the reports that 6180.55 must be submitted as an image While FRA wants to limit the general the States may access contain no of the completed and signed hard copy public’s access to these documents and Personal Identifying Information (PII) and must be in a .pdf or .jpg file format their dissemination due to their and, therefore, FRA is not concerned only, and the Form FRA F 6180.81 must sensitive nature, FRA believes that about their availability and use. In also be in a .pdf or .jpg file format. If a States will be able to use this addition, the final rule does not amend railroad opts to submit their completed information to improve safety and that State access pursuant to part 212, as that Form FRA F 6180.55 to FRA via optical FRA has limited the availability of this access is subject to an FRA agreement, media or electronically via the Internet, information to the extent reasonably see § 212.105, and allows States to assist the railroad must maintain the original practicable. FRA with its safety mission. State completed and signed Form FRA F ICC suggested that FRA create a agencies participating in investigative 6180.55 for at least five years after the secure Web site so that more calendar year to which the report 6 The discussion in this section with regard to information may be made available. At relates, in accordance with § 225.27(c) States access to reports and reports relates only to this time, FRA does not plan on creating of this final rule. FRA will provide to those records and reports containing suicide data. such a Web site. Instead, FRA is making

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all of the relevant information available with the amendments set forth in railroad of its obligation to promptly file in the aggregate for the general public. § 225.9, and includes the telephonic a late or amended report upon becoming reporting requirements set forth in 49 aware of an omission, mistake or Appendix A to Part 225—Schedule of CFR parts 229, ‘‘Railroad Locomotive otherwise, in accordance with § 225.13 Civil Penalties. Safety Standards;’’ part 233, ‘‘Signal and the late and amended reporting Appendix A to part 225 contains a Systems Reporting Requirements;’’ part guidance set forth in the FRA Guide. schedule of civil penalties for use in 234, ‘‘Grade Crossing Signal System FRA will continue to publish its Annual connection with this part. The final rule Safety;’’ and part 219, ‘‘Control of Report of Railroad Safety Statistics. revises the schedule of civil penalties to Alcohol and Drug Use.’’ Such Because the accident/incident databases reflect revisions made to part 225. incorporation is for informational will remain open for updating for a Because such penalty schedules are purposes only, and places no new period of five years, the statistics statements of agency policy, notice and reporting requirements on railroads. By published in the Annual Report will be comment are not required prior to their including these requirements in the subject to change. The authoritative issuance. See 5 U.S.C. 553(b)(3)(A). FRA Guide, FRA hopes to better source for rail safety statistics will now Although the schedules are statements disseminate its telephonic reporting be the Office of Safety’s Web site: of agency policy, the NPRM provided requirements, and to improve railroad http://safetydata.fra.dot.gov/ interested parties with an opportunity to compliance by providing a single OfficeofSafety. comment. However, no such comments reference location for determining when To clarify, these revisions do not were submitted. accident/incident telephonic change the following late and amended FRA Guide notification is required. reporting requirements, which are FRA also revises the section entitled currently set forth in the FRA Guide: Generally, FRA makes the following ‘‘Close of Calendar Year’’ by clarifying (1) Railroads must file amended revisions to the FRA Guide: An the requirements for submitting late and reports with FRA through December 1 of improved table of contents; clarifying amended reports, revising the time the year following the year in which the instructions on Forms FRA F 6180.57, frame in which FRA will accept accident/incident was initially reported. 6180.54, and 6180.150 that have fields additional late and amended accident/ (2) Railroads must file late reports requesting an U.S. DOT Grade Crossing incident reports, and changing from with FRA for five years (following the Identification Number includes and is optional to mandatory the filing of end of the calendar year to which the referencing the U.S. DOT Grade amended reports for certain accidents/ accident/incident relates) for all Crossing Inventory Number; an updated incidents. unreported accident/incidents. e-mail and U.S. postal mail address for FRA publishes final accident/incident FRA does, however, revise the the monthly accident/incident reporting counts following the conclusion of a reporting requirements with respect to submissions; the addition of a subject reporting year. Submission of the certain specified accidents/incidents. index; the reorganization of the chapter December report concludes the Previously, the FRA Guide stated that contents for ease of use; the inclusion of reporting year. However, railroads are railroads ‘‘should’’ continue to file necessary updates; the inclusion of new still required to provide to FRA late amended reports after December 1 of the and revised ‘‘Questions and Answers’’ reports of unreported accidents/ following year (i.e., for five years after and ‘‘Scenarios’’ taken from the FRA incidents and amended reports that the end of the calendar year to which Safety Data Web page (http:// correct or update earlier submissions. they relate) for the changes listed below. safetydata.fra.dot.gov/officeofsafety) Previously, the FRA Guide (Chapter These revisions make such amended and from OSHA’s Web page (http:// 1—Page 12 through 13) specified three reporting mandatory. Accordingly, www.osha.gov/comp-links.html) to cutoff dates for filing late and amended railroads shall continue to file amended clarify reporting issues; the inclusion of accident/incident reports following the reports for five years after the end of the the prior and the current reporting completion of the reporting year: calendar year to which they relate for threshold to reflect changes made in (1) April 15 of the next calendar year; the following changes: part 225; the inclusion of Web addresses (2) December 1 of the following year: for access to the most up-to-date contact and (1) Railroad Injury and Illness information and data contained in the (3) Five years after the end of the Summary (Continuation Sheet) (Form appendices; and the elimination of calendar year to which the accident/ FRA F 6180.55a): Change from Injury to redundant language by replacing incident report relates. Fatality (only if the injured person dies verbatim reiterations of part 225 rule FRA found the reporting scheme to be within 180 days from the date of the text where appropriate (for ease of confusing and outdated with the advent injury); reference the FRA Guide includes the of improved technology. Moreover, (2) Highway-Rail Grade Crossing full regulatory text of part 225 in a improvements in database management Accident/Incident Report (Form FRA F newly created Appendix K). strategies allow for contemporaneous 6180.57): Change from Injury to Fatality, FRA also makes a technical viewing of reporting accident/incident change in Grade Crossing ID, change in amendment throughout the FRA Guide statistics and have eliminated the need the Rail Equipment Involved; and by changing the term ‘‘Gap’’ to to impose artificial deadlines for (3) Rail Equipment Accident/Incident ‘‘Passenger Station Platform Gap’’ keeping files open or for FRA to publish Report (Form FRA F 6180.54): Change because it best captures the intended interim reports. As such, FRA removes from Injury to Fatality, change in Grade meaning. See FRA Guide. references to the cutoff date of April Crossing ID, Rail Equipment Involved, More specific changes include: 15th of the next calendar year for Primary Cause Code, Contributing Cause accepting late reports and amendments. Code, Type of Territory, Number of Cars Chapter 1, ‘‘Overview of Accident/ Accordingly, FRA will receive and Releasing or Evacuation. Incident Reporting and Recordkeeping process any and all late and amended These revisions further provide that Requirements.’’ reports for a period of five years railroads shall continue to file amended FRA revises the paragraph titled, following the calendar year to which an reports for five years after the end of the ‘‘Telephonic Reports of Certain amended or late report relates. This calendar year to which they relate for Accidents/Incidents,’’ in accordance accommodation does not relieve a the additional changes listed below:

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(1) Railroad Injury and Illness Examples of ‘‘closed crossings’’ are the NPRM suggested that FRA use the Summary (Continuation Sheet) (Form locations where the crossing has been phrase ‘‘Platform Gap,’’ rather than FRA F 6180.55a): A significant change permanently barricaded and crossing ‘‘Gap.’’ The final rule uses the term in the number of reportable days away surface material removed; where the ‘‘Passenger Station Platform Gap’’ from work or days restricted; a railroad tracks have been cut or because it best captures the intended significant change is at least a 10% barricaded or physically removed; meaning. A comment to the NPRM also variance in the number of actual where a connecting turnout has been suggested that the definition itself is too reportable days away from work or days removed; or where rail operations are narrow, and not consistent with the restricted compared to the number of not possible because the railroad tracks common definition of the term. days already reported. are paved over, etc. Crossings along However, as discussed, the definition in (2) Railroad Equipment Accident/ such inactive railroad lines are closed. the final rule is consistent with the Incident Report (Form FRA F 6180.54): FRA adds these definitions to the FRA RSAC recommendations, and the A significant change in the damage costs Guide to eliminate confusion about the definition facilitates the tracking of for reportable rail equipment accidents/ meaning of a ‘‘closed’’ versus accidents/incidents that occur on high incidents; a significant change is a 10% ‘‘barricaded’’ crossing, and to revise the level platforms. variance between the damage amount definition of ‘‘closed crossing’’ to be FRA also adds a definition for reported to FRA and the current cost consistent with the definition used in ‘‘Passenger Station Platform Gap figures. the Grade Crossing Inventory System Incident’’ to mean ‘‘an event involving a In light of these changes, FRA is (GCIS). The GCIS is a mandatory system person who, while involved in the revising the timeframe imposed for used by States, railroads, and the process of boarding or alighting a using the M505 code on the Form FRA Federal government to profile crossings passenger train at a rail car door F 6180.54. See FRA Guide, Chapter 7. and determine which crossings need threshold plate at a high level passenger Chapter 2, ‘‘Definitions.’’ improved warning systems for highway boarding platform (i.e., a platform that is users. FRA and other users regularly 48’’ or more above the top of the rail), In the NPRM, FRA added an example compare information from the Highway- has one or more body parts enter the to the definition of Worker on Duty- Rail Crossing Accident/Incident Reports area between the car body and the edge Employee (Class A) characterizing an (Form FRA F 6180.57) to the GCIS. of the platform. The following are employee on his lunch break as on duty. Clearly defining ‘‘closed crossing’’ and examples of a Passenger Station In response to the example, AAR ‘‘temporary barricaded crossing,’’ and Platform Gap Incident: submitted comments stating that an making the GCIS and FRA definitions —While boarding or alighting a employee on an unpaid break should consistent, will reduce confusion and not be considered a Worker on Duty- passenger train at a high level aid in grade crossing accident/incident passenger boarding platform, a person Employee (Class A) because they are not reporting accuracy. performing work at that time. AAR misjudges the passenger station FRA clarifies in the definition of platform gap, resulting in the person’s stated that there was no justification for Highway-Rail Grade Crossing Accident/ this change at this time. FRA removes leg entering the passenger station Incident that all crossing locations platform gap. this example in the final rule to avoid within industry and rail yards, ports, any confusion. In general, an employee —While boarding or alighting a and dock areas are considered highway- passenger train at a high level on a break, whether paid or unpaid, is rail crossings within the meaning of considered an Employee Not On Duty passenger boarding platform, a person highway-rail grade crossing. This is struck by a closing door, resulting (Class B). However, if an employee is clarifying amendment does not expand performing work-related activities (i.e., in the person’s leg entering the the railroads’ reporting requirements or passenger station platform gap. lining a switch) during his or her break create an additional burden as the The following are not examples of a then the employee is a Worker on Duty- amendment is consistent with the 2003 Passenger Station Platform Gap Employee (Class A). Thus, an employer FRA Guide, FRA’s longstanding policy, should consider an employee’s actual and industry practices. The purpose of Incident: activities during his or her break to the amendment is to place the entire —While boarding or alighting a determine whether the employee is on definition in one location for ease of passenger train at a high level or off duty. reference. passenger boarding platform, a person FRA adds certain definitions for FRA adds a definition for ‘‘Passenger misjudges the gap and falls into the clarification and ease of reference, and Station Platform Gap’’ to mean, ‘‘the vestibule or platform, without a body removes definitions that reiterate horizontal space between the edge of the part entering the gap. definitions set forth in § 225.5. FRA passenger boarding platform and the —While walking on a passenger station adds a definition for ‘‘Temporary edge of the rail car door threshold plate, at a high level passenger boarding Barricaded Crossing’’ to mean ‘‘a and the vertical difference from the top platform, a person slips on the highway-rail grade crossing that is of the passenger boarding platform and platform, at a location other than the temporarily closed to highway users by the top of the rail car threshold.’’ This rail car door threshold, resulting in using temporary methods to block definition, with a minor variation, was the person’s leg entering the gap. highway traffic such as barrels. A recommended by the RSAC General The definition and examples of temporary barricaded crossing does not Passenger Safety Task Force to the full ‘‘Passenger Station Platform Gap constitute a ‘closed’ crossing.’’ FRA also RSAC on October 25, 2007, along with Incident’’ were recommended by the adds a definition for ‘‘Closed Crossing’’ the Cause Code Recommendations for RSAC General Passenger Safety Task to mean a location where a crossing has platform gap related injuries (see Force to the full RSAC on October 25, been physically removed or where rail discussion for Appendix F of the FRA 2007, along with Cause Code operations, pathway or highway traffic Guide). The full RSAC agreed to the Recommendations for platform gap is not possible (this does not include recommendations on October 25, 2007. related injuries (see discussion for crossings that are temporarily closed for The NPRM proposed adding a definition Appendix F of the FRA Guide). The full repairs to the track structure, crossing for ‘‘Gap,’’ as opposed to ‘‘Passenger RSAC agreed to these recommendations surface, or roadway approaches). Station Platform Gap.’’ A comment to on October 25, 2007. The final rule

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adopts these recommendations with incidents not to be reported;’’ § 225.41, Appendix H, ‘‘Forms’’ for additional slight variation. ‘‘Suicide data;’’ and the FRA Guide, information. FRA also revises the definition of Appendix H, ‘‘Forms’’ for additional FRA also revised Chapter 6 to make ‘‘Locomotive’’ to support changes information. it consistent with the Notice of necessary to include EMU and DMU FRA is clarifying that railroads must Interpretation it published in the cars on FRA Form F 6180.54, ‘‘Rail- create a Form FRA F 6180.98 for Federal Register on March 30, 2009, Equipment Accident/Incident Report.’’ employee casualties due to suicides and informing interested parties of its In the current FRA Guide (May 1, 2003), attempted suicides, that are accountable application and enforcement of the a cab car is defined as a locomotive. or reportable. Moreover, FRA instructs harassment or intimidation provisions However, there is no definition for EMU the railroad to indicate in the narrative contained in 49 CFR part 225, and DMU cars, which created confusion section that the casualty resulted from specifically relating to situations in because these cars provide power to the the person’s suicidal act. which a supervisor or other railroad consist and can, therefore, also be official accompanies an injured Chapter 5, Form FRA F 6180.97, ‘‘Initial employee into an examination room. classified as locomotives. Rail Equipment Accident/Incident FRA adds a definition for ‘‘Vehicle’’ to See 74 FR 14091; see also Section-by- Record.’’ include automobiles, buses, trucks, Section Analysis for § 225.33, ‘‘Internal motorcycles, bicycles, farm vehicles, FRA revises the instructions for the Control Plan.’’ and all other modes of surface use of this form consistent with the FRA also revises Chapter 6 to instruct transportation, motorized and changes in this final rule. See Section- railroads that they must presume that a nonmotorized. by-Section Analysis for § 225.5, highway user who is involved in a ‘‘Definitions;’’ § 225.25, highway-rail grade crossing accident/ Chapter 3, Form FRA F 6180.55, ‘‘Recordkeeping;’’ § 225.15, ‘‘Accidents/ incident and is transported from the ‘‘Railroad Injury and Illness Summary.’’ incidents not to be reported;’’ § 225.41, scene of a highway-rail grade crossing FRA revises the instructions for the ‘‘Suicide data;’’ and the FRA Guide, accident/incident to a medical facility use of this form consistent with the Appendix H, ‘‘Forms’’ for additional via ambulance or other form of medical changes in this final rule. See Section- information. conveyance did, more likely than not, by-Section Analysis for § 225.27, FRA revised the Questions and sustain an FRA reportable injury (i.e., an ‘‘Retention of records,’’ § 225.37, Answers in Chapter 4 of the FRA Guide injury meeting the general reporting ‘‘Magnetic media transfer and to reflect the changes to the definition criteria set forth at § 225.19(d)(1) submission,’’ § 225.15, ‘‘Accidents/ of accountable rail equipment accident/ through (d)(6)). Absent evidence to incidents not to be reported,’’ § 225.41, incident. FRA removed the Q2/A2 from rebut the presumption, the railroad ‘‘Suicide data,’’ and the FRA Guide, the FRA Guide as it dealt with the must report the injury to FRA on Form Appendix H, ‘‘Forms’’ for additional disruption of service criteria from the FRA F 6180.55a, and include the information. 2003 Final Rule. casualty on Form FRA F 6180.57. If the The final rule also revises the Form In addition, FRA is clarifying that railroad later discovers that the highway FRA F 6180.55 to clarify that by signing casualties due to suicides and attempted user did not sustain a reportable injury, the form the reporting officer is attesting suicides, for which an event or exposure the railroad must notify FRA in that all of the information on the form arising from the operation of the accordance with the late reporting is true and correct. See FRA Guide, railroad is a discernable cause and that instructions set forth at § 225.13. FRA Appendix H, ‘‘Forms’’ for additional meet the general reporting criteria shall has found that railroads are under- information. also be included in the Field 30, reporting highway-rail grade crossing In addition, FRA is clarifying that Casualties, on Forms FRA F 6180.97. accidents/incidents related to injures to casualties due to suicides and attempted Also, FRA is also including instructions persons other than railroad employees suicides, for which an event or exposure that when an accountable or reportable due to the railroads’ limited access to arising from the operation of the rail equipment accident/incident is injured highway users’ medical records, railroad is a discernable cause and caused by a suicide or attempted especially in light of privacy protections meets the general reporting criteria, suicide, the railroad shall indicate that related to health information provided shall also be included in Field 18, fact in Field 31, Narrative Description. by the Health Insurance Portability and Reported Casualties, on Forms FRA F Accountability Act of 1996 (HIPAA), Chapter 6, Form FRA F 6180.55a, 6180.55, ‘‘Railroad Injury and Illness Public Law 104–191. ‘‘Railroad Injury and Illness Summary Summary.’’ This will allow FRA to FRA emphasizes, however, that this (Continuation Sheet).’’ verify against the number of forms presumption does not relieve railroads submitted with the actual count. The FRA revises the instructions for the of their duty to make reasonable inquiry railroad should report the person by the use of this form consistent with the to determine the nature and severity of ‘‘type of person.’’ As such, if a trespasser changes in this final rule. FRA also adds highway-rail grade crossing injuries and commits suicide, the railroad shall instructions that, if an injury is due to to accurately report such injuries. In report it as a trespasser fatality. See FRA a passenger station platform gap general, FRA has found that some Guide, Chapter 3. incident, the railroad must use in block railroads often do not make such 5n (‘‘Cause’’), ‘‘Probable Reason for reasonable inquiry into potentially Chapter 4, Form FRA F 6180.98, Injury/Illness Circumstance Codes,’’ reportable injuries of non-employees. ‘‘Railroad Employee Injury and/or code number 18—Slipped, fell, Accordingly, the NPRM required a Illness Record.’’ stumbled due to Passenger Station railroad to fulfill its reasonable inquiry FRA revises the instructions for the Platform Gap—regardless of whether responsibilities in determining the use of this form consistent with the other codes may also be applicable. See nature and severity of highway-rail changes in this final rule. See Section- Section-by-Section Analysis for § 225.5, grade crossing injuries and to accurately by-Section Analysis for § 225.5, ‘‘Definitions;’’ § 225.15, ‘‘Accidents/ report such injuries, by contacting the ‘‘Definitions’’ definition for Accountable Incident not to be reported;’’ § 225.19 injured individual or their Injury or Illness; § 225.25, ‘‘Primary Groups of Accidents/ representative by phone and, if ‘‘Recordkeeping,’’ § 225.15, ‘‘Accidents/ Incidents’’ and the FRA Guide, unsuccessful in obtaining the needed

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information, in writing. Moreover, the requirement does not prevent a railroad has been approved. FRA expects that, NPRM required that a railroad keep a from conducting additional prior to the delayed six month effective record of its efforts to make such contact investigation, but is meant to ensure date, the form with be approved. and that this record and documentation that the railroad performs an Following approval, the final form will of any information obtained be available investigation into the nature and be available at http://safetydata.fra.dot. for review and copying by an FRA severity of highway-rail grade crossing gov/officeofsafety. representative under the same criteria as injuries, in a less invasive manner. The cover letter that accompanies set forth in § 225.35(b). However, a railroad shall not require a Form FRA F 6180.150 shall be drafted In light of comments received highway user to present medical in accordance with the instructions regarding the burden and effectiveness documentation or other supportive contained in the FRA Guide, Chapter of contacting potentially injured information in order to report the 10. FRA has included a sample cover highway users, the final rule revises the casualty. letter in the FRA Guide for use by the language in the NPRM and requires that A railroad shall complete Part I of railroads. See FRA Guide, Appendix N. the railroad fulfill its inquiry Form FRA F 6180.150 with information Specifically, the cover letter shall responsibilities by contacting any regarding the highway-rail grade clearly explain the Federal reporting highway user potentially injured in a crossing accident/incident, in requirements imposed on the railroads, highway-rail grade crossing accident/ accordance with the instructions address only Federal reporting incident, or the highway user’s provided in FRA Guide. The railroad requirements and not the railroad’s representative(s), in writing and, if shall hand deliver or send by first class claims process, explain that the form is unsuccessful in obtaining the needed mail the letter within a reasonable time voluntary, and provide clear information, by telephone. If a highway period following the date of the instructions on how to complete the user died as a result of the highway-rail highway-rail grade crossing accident/ form. The cover letter may ask the grade crossing accident/incident, a incident. The letter shall also contain a highway user to provide additional railroad shall not send this form to any prepaid, pre-addressed return envelope, information, but the cover letter shall person. Moreover, the final rule and a copy of the Form FRA F 6180.150 not mandate that the individual provide specifies that the written with Part I completed, along with the certain information in order for a correspondence should contain the required cover letter. Highway users are railroad to comply with Federal newly created Form FRA F 6180.150, not required to complete Form FRA F reporting requirements. See FRA Guide, ‘‘Highway User Injury Inquiry Form,’’ a 6180.150. Consequently, FRA Chapter 10 for a complete list of cover letter drafted in accordance with acknowledges that there will be instructions. the instructions contained in the FRA situations in which a highway user With regard to the cover letter, the Guide, and a return envelope that is cannot be reached even though a instructions contained in the final rule prepaid and preaddressed. A railroad railroad contacts the person in writing require that the letter contain the shall keep a record of its efforts to and by telephone. Other times, a following: contact a highway user, and this record highway user will refuse to provide any • An explanation of why the railroad and documentation of any information information even though a railroad is contacting the highway user; obtained shall be available for review clearly explains the Federal reporting • An explanation of part 225’s and copying by an FRA representative requirements and the reason for accident/incident reporting under the same criteria as set forth in soliciting information. In those cases, a requirements; § 225.35(b). railroad is still responsible for deciding • An explanation of how the form Form FRA F 6180.150 shall be whether, considering all of the and any response will be used for part completed in accordance with the circumstances, the highway user 225’s accident/incident reporting instructions contained in the FRA Guide suffered a reportable injury (or, whether requirements; in Chapter 10, dealing with highway-rail the presumption discussed above, • An explanation that the highway grade crossing accidents/incidents. FRA applies). The railroad must reconsider user is not required to respond and that has found that, when railroads do that determination if new or additional a response is voluntary; actually conduct an investigation into information is later acquired. Moreover, • An opportunity to correct incorrect injuries to highway users, they will if a highway user completes Part II, or information in Part I; solicit medical records and other provides additional information during • Identify and provide contact documents containing PII. This a telephone call, the railroad will be information for a person at the railroad approach has resulted in a lack of responsible for determining whether, who can answer questions with regard response from individuals who do not based on the circumstances, the person to the form; want to divulge personal information suffered a reportable injury or illness • Provide instructions on how to and are unsure about the purpose of the and for using that information in complete Part II; and, request. This has resulted in the complying with FRA reporting and • An explanation of how any medical underreporting or inaccurate reporting recording requirements. records, if requested, personal of highway-rail grade crossing injuries. The final rule adds a draft of Form identifying information or information While a railroad may request this FRA F 6180.150, ‘‘Highway User Injury will be handled. information, in order to make a Inquiry Form,’’ to Appendix H and a The cover letter and Form FRA F reporting decision, a railroad is not sample cover letter in Appendix N. See 6180.150 are meant to be tools that required to obtain that type of FRA Guide. The instructions added to allow the railroad to gather information documentation, although it can provide the final rule for completing Form FRA and comply with part 225’s accident/ additional insight into the nature and F 6180.150 require the railroad to incident reporting and recording severity of an injury or illness. As such, complete Part I of the form. See FRA requirements. As such, a railroad shall Form FRA F 6180.150 is meant to be Guide, Chapter 10. Form FRA F not require the highway user to provide minimally invasive and requires only 6180.150 was submitted to OMB for any medical or personal information in that information which a railroad needs approval with the final rule and is still order to report a casualty. Moreover, the in order to determine whether the pending OMB approval; therefore, the cover letter and any communication for person suffered a reportable injury. This railroads cannot use the form until it the purposes of part 225 shall remain

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separate from and not reference the simply required to send a letter to and place requiring the railroads to fully railroad’s claims process in order to possibly call the highway user in an investigate fatalities and to obtain avoid confusion. effort to obtain information in order to relevant information. As stated above, As an initial matter, FRA received complete a Federal form. As explained FRA has found that the railroads often comments regarding the language above, the Form FRA F 6180.150 and report fatalities as trespasser fatalities proposed in the NPRM; however, as the the cover letter, explaining the purpose when they are in fact suicides. To language in the final rule simply of the railroad’s inquiry, is meant to understand and prevent deaths arising elaborates on and provides additional encourage the sharing of information from the operation of the railroad and directions on how to conduct an inquiry and to be less intimidating. suicides occurring on the railroad, FRA into a potentially reportable injury, a Commenters also suggested that this needs to have accurate and complete majority of the comments are still requirement would not improve safety. information. As such, FRA believes that relevant. FRA uses information about reportable the additional requirements are Commenters suggested that the injuries to understand the severity of necessary. See Section-by-Section requirements proposed in the NPRM accidents and incidents occurring due Analysis for § 225.41, ‘‘Suicide data’’ for were overly burdensome and would not to the operation of the railroad. When additional discussion of the comments be effective as individuals generally do the railroads fail to report injuries and and requirements. not want to share personal information. illnesses, this prevents FRA from fully Other comments suggested that the As the requirements contained in the understanding the impact and severity six-month follow-up requirement is too final rule are consistent with those of such accidents and incidents. burdensome. FRA has found that it proposed in the NPRM, the comments Amtrak submitted comments stating often takes time for public authorities to are still applicable. FRA is concerned that, due to their large number of complete their investigations and that these injuries and fatalities are not passengers, the burden of these declare a cause of death. Therefore, FRA being reported or investigated; as such, additional requirements will be believes that the six-month requirement the changes are meant to ensure that extreme. As an initial matter, the duty will provide the railroads with both of these things occur. Moreover, to investigate highway-rail grade sufficient time to obtain this the presumption of reportablity created crossing incidents and trespasser information. One railroad suggested that in the final rule is meant to simplify the fatalities, which are discussed below, do the railroads should only have to process. Also, a railroad is allowed to not generally apply to passengers (or follow-up with one document request terminate its investigation after calling individuals legally on railroad within an initial three-month period and mailing the individual as required property). While railroads are required from the date of the incident. Again, by this final rule. The inquiry to conduct a reasonable inquiry into any FRA has found that it often takes more requirement does not impose a potentially reportable injury or illness, time to obtain this information and that timeframe on the follow-up the railroad FRA is particularly concerned with, and follow-up by different means is more is required to perform, except that the the additional requirements apply to, effective. In addition, once a railroad railroad must initiate its investigation only highway users potentially injured has obtained confirmation of the cause within a reasonable time after the date in a highway-rail grade crossing of death, they may terminate their of the highway-rail grade crossing accident/incident and trespasser investigation. accident. FRA created the Form FRA F fatalities. See FRA Guide. Several commenters suggested that 6180.150 and the sample cover letter in Next, FRA is also concerned that the railroads do not have the legal an effort to open the communication suicides are being reported as trespasser authority to obtain the required process with potentially injured fatalities. Often this occurs because documentation. As stated above, the highway users to ensure that railroads railroads do not always make reasonable railroads have historically been able to and FRA are gathering accurate inquiry in their efforts to determine the obtain this information. If a railroad information. Finally, the final rule cause of death. In fact, FRA has found cannot obtain this information and requires the railroads to contact the that a number of reported trespasser properly documents its efforts, then the highway user by mail prior to contacting fatalities are actually suicides. railroad has fulfilled its obligations the person by phone because FRA Accordingly, FRA revised Chapter 6 to under part 225. However, if a railroad believes that this will be a less clarify that, in order to fulfill its cannot confirm cause of death, the intimidating approach. responsibilities in determining the railroad will still be responsible for In addition, UP stated in its comments nature of a trespasser fatality and to reporting the casualty as a trespasser that the additional requirements would accurately report such a fatality, a fatality. Finally, FRA believes that force them to intrude on the private railroad must try to obtain allowing the railroads to accept verbal lives of the general public and could documentation indicating the cause of confirmation of the cause of death, increase issues with pending litigation. death by contacting the coroner, public which they must document, will ease As an initial matter, private litigation police officer, or other public authority any potential burden. See the Section- matters should not prevent the railroads by telephone and, if unsuccessful, in by-Section Analysis for § 225.15, from reporting information about writing. The railroad must continue its ‘‘Accidents/incidents not to be casualties and investigating the efforts to obtain this documentation for reported.’’ potential causes of accidents/incidents a period of six months following the In addition, FRA revises the FRA arising out of the operation of the month in which the fatality occurred. Guide to clarify who can declare a railroad. Also, the railroads should The railroad must keep a record of its casualty as an attempted suicide or already be investigating these casualties. efforts to obtain such documentation. suicide. As discussed above, the final FRA’s creation of the presumption is This record and any documentation rule revises the definition of ‘‘Suicide meant to alleviate some burden upon obtained must be available for review data’’ to mean ‘‘data regarding the death the railroad where they follow-up but and copying by an FRA representative of an individual due to the individual’s cannot eventually obtain the necessary under the same criteria as set forth in commission of suicide as determined by information. While the new requirement § 225.35(b). a coroner, public police officer or other does mandate that a railroad follow-up Commenters further suggested that public authority; or injury to an with injured persons, a railroad is there are already sufficient steps in individual due to that individual’s

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attempted commission of suicide as Grade Crossing Inventory. ICC also highway-rail grade crossing accident/ determined by a public police officer or suggested including a field asking incident to a medical facility via public authority.’’ The FRA Guide whether the train movement was ambulance or other form of medical explains that a ‘‘public authority’’ is a recorded and whether that information conveyance, did, more likely than not, Federal, State or local government was retrieved. Again, this additional sustain an FRA reportable injury (i.e., an entity, such as a public health field is not necessary as PTC becomes injury meeting the general reporting department, that has the legal authority mandatory. In addition, ICC wanted a criteria set forth at § 225.19(d)(1) to declare a fatality a suicide or an field asking whether the train movement through (d)(6)). Absent evidence to injury to a person an attempted suicide. was recorded by GPS and was the rebut this presumption, the railroad Lastly, FRA revises Chapter 6 to information reported by a wireless must report the injury to FRA on Form instruct railroads that they must device. Again, FRA believes that this FRA F 6180.55a, ‘‘Railroad Injury and complete the longitude and latitude information can easily be obtained at a Illness Summary (Continuation Sheet)’’ fields in blocks 5s and 5t on the Form later time and does not believe an and must include the casualty on Form FRA F 6180.55a for any reportable additional field is necessary. In FRA F 6180.57. This presumption does casualty to a trespasser. This addition, this change may be done at a relieve the railroad of its responsibility requirement may be satisfied by either later time. to an inquiry into the nature and using global positioning system (GPS) The final rule revises the severity of the highway user’s injuries. equipment to determine the actual requirements for the Primary Cause In order to fulfill its responsibilities in longitude and latitude, or by using a free Code with regard to cause code M505 determining the nature and severity of online technology to determine an and the railroads’ responsibility to a highway-rail grade crossing injury and estimated longitude and latitude. See update this code. The final rule to accurately report such injury, a FRA Guide for additional information. eliminates the April 15 deadline as it no railroad must try to contact potentially longer serves a purpose with the injured highway users involved in a Chapter 7, Form FRA F 6180.54, ‘‘Rail updated technology and to be consistent highway-rail grade crossing accident/ Equipment Accident/Incident Report.’’ with the changes made in FRA Guide at incident, or their representatives, in FRA revises the instructions for the Chapter 1. See FRA Guide, Chapter 1. writing and, if unsuccessful, obtain the use of this form consistent with the Consequently, the railroad will be needed information, by telephone. changes in this final rule. FRA also adds required to submit an amended report There is no requirement to contact a instructions to Chapter 7 requiring that, pursuant to § 225.13 once it has closed representative of a highway user who if an accident is caused by a bond wire its investigation and determined the has died as a result of the accident. The attachment issue (see Appendix C cause of the accident/incident. This written communication must include a ‘‘Train Accident Cause Codes’’), duty is consistent as the railroad’s Form FRA F 6180.150, cover letter and information on the methods and responsibility under the 2003 FRA prepaid/preaddressed return envelope. locations of those attachments be Guide, as railroads were previously Form FRA F 6180.150 and the cover provided in the narrative block 52. See required to submit an amended report letter must be completed, drafted and Section-by-Section Analysis for once it determined the cause of sent in compliance with the instructions §§ 225.5, 225.15, 225.19 and Revisions accident/incident. contained in § 225.21 and FRA Guide at to the FRA Guide, Appendix H. The final rule also adds clarifying Chapter 10. A highway user is not FRA also revises Chapter 7 to instruct instructions on Form FRA F 6180.54, required to respond to a railroad’s railroads that they must complete the which provide that fields requesting a written or verbal requests for additional longitude and latitude in blocks 50 and U.S. DOT Grade Crossing Identification information with regard to potential 51. This requirement may be satisfied by Number are referring to the U.S. DOT injuries. However, railroads are required either using GPS equipment to Grade Crossing Inventory Number. to use any response in complying with determine the actual longitude and part 225’s accident/incident reporting latitude or by using a free online Chapter 10—Form FRA F 6180.57— and recording requirements. See FRA ‘‘ technology to determine an estimated Highway-Rail Grade Crossing Accident/ Guide, Chapter 6 of this Final Rule for ’’ longitude and latitude. See FRA Guide Incident Report. a complete discussion of the for additional information. As an initial matter, the final rule requirements and relevant comments. The ICC’s comments suggested adding revises the title of Chapter 10 to Forms Form FRA F 6180.150 was submitted additional fields on the Form FRA F FRA F 6180.57—Highway-Rail Grade to OMB for approval with the final rule 6180.54. FRA did not adopt these Crossing Accident/Incident Report & and is still pending OMB approval; recommendations at this time, as the FRA F 6180.150—Highway User Injury therefore, the railroads cannot use the information is captured elsewhere or Inquiry Form. This change was made in form until it has been approved. FRA can be easily obtained at a later time. light of the newly created Form FRA F expects that prior to the delayed six- ICC suggested a field requesting whether 6180.150 and the instructions which are month effective date, the form will be the train was equipped with a digital or contained in FRA Guide at Chapter 10. approved. Following approval, the final other recording device and whether the The final rule revises the instructions form will be available at http:// information was retrieved. FRA believes for the use of this form consistent with safetydata.fra.dot.gov/officeofsafety. that this field is unnecessary as the train the changes in this final rule. See The railroad must keep a record of its number provides sufficient information, Section-by-Section Analysis for efforts to make such contact including, and this information can be obtained at § 225.15, ‘‘Accidents/Incident not to be but not limited to, retaining a copy of a later time. In addition, ICC reported’’ and the FRA Guide, Appendix the dated Form FRA F 6180.150 that recommended requesting whether the H, ‘‘Forms’’ for additional information. was sent to the highway user and the grade crossing had a recording device The final rule revises Chapter 10 to accompanying cover letter, and whether the information was instruct railroads that they shall documenting the date, time and content retrieved. FRA believes that sufficient presume that a highway user who is of the follow-up call, and retaining any information is already being captured involved in a highway-rail grade response from the highway user. This on Forms FRA F 6180.54 and FRA F crossing accident/incident and is record and documentation of any 6180.57, in addition to the U.S. DOT transported from the scene of a information obtained must be available

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for review and copying by an FRA Appendix B, ‘‘State Codes.’’ Analysis for § 225.15, ‘‘Accidents/ representative under the same criteria as The FRA Guide updates the State incidents not to be reported’’ and the set forth in § 225.35(b). For additional codes by adding the abbreviation for FRA Guide, Appendix H, ‘‘Forms’’ for information see Section-by-Section Hawaii. This is a correction of an additional information. Analysis for § 225.15 and the FRA inadvertent admission and is consistent Appendix F, ‘‘Circumstance Codes.’’ Guide, Subsection F, Form FRA F with the change to Form FRA F 6180.56. 6180.55a. FRA adds the following ‘‘Probable Appendix C, ‘‘Train Accident Cause Reason for Injury/Illness Circumstance A comment to the NPRM suggested Codes.’’ Codes,’’ (Probable Reason Circumstance that block 41 on Form FRA F 6180.57 Code) under the subtitle ‘‘Remotely be expanded from ‘‘Driver’’ to ‘‘Highway The FRA Guide revises the following controlled locomotive(s) environment’’ User.’’ As discussed below, the final rule Train Accident Cause Codes: to the Remote Control Locomotive does make this change. Another • T224 ‘‘Rail defect originating from bond wire attachment.’’ FRA added Switching Operations Fatality Analysis comment to the NPRM suggests that Codes (RCL SOFA Codes) to the May 1, block 44 on Form FRA F 6180.57 be Train Accident Cause Code T224 in response to the National Transportation 2003, guide as amended: changed from ‘‘Driver’’ to ‘‘Highway • R1 Object fouling track, related to User’’ so as to include non-motorist Safety Board’s (NTSB) 2005 recommendation that FRA provide a using RCL accidents. The final rule does not adopt • R2 Outside caused (e.g., assaulted/ train accident cause code for this suggestion because this information attacked), related to using RCL derailments caused by bond wire is captured in block 46. In addition, • R3 Lack of communication, related attachments. This recommendation additional instruction is included in the to using RCL arose from the NTSB’s investigation of FRA Guide to clarify that block 44 only • R4 Slack adjustment during the derailment of northbound National concerns motor vehicle operators. switching operation, related to using Railroad Passenger Corporation The final rule adds instructions RCL (Amtrak) train No. 58 while operating • R5 Insufficient training, related to pertaining to the narrative section on on Canadian National (CN) track near Form FRA F 6180.57 stating ‘‘Do not using RCL Flora, Mississippi, on April 6, 2004. The • R6 Failure to provide adequate record personal identifiers, e.g., names, derailment resulted in one fatality, 35 Social Security Numbers, payroll space between equipment during injuries (that were reportable to FRA), switching operation, related to using identification.’’ This change is and damage costs of approximately $7 consistent with the instructions for RCL million. The NTSB recommended that • R7 Close or no clearance, related to Forms FRA F 6180.55a and FRA F FRA include in the FRA Guide a train 6180.54. using RCL accident cause code for derailments • R8 Act of God, related to using RCL The final rule also adds clarifying caused by rail cracks originating from • U1 Object fouling track, unrelated instructions on Form FRA F 6180.57 the bond wire attachments, and that to using RCL field requesting an U.S. DOT Grade information on the methods and • U2 Outside caused (e.g., assaulted/ Crossing Identification Number means locations of those attachments be attacked), unrelated to using RCL and is referencing to the U.S. DOT provided in the narrative section of the • U3 Lack of communication, Grade Crossing Inventory Number. accident/incident report (NTSB unrelated to using RCL Recommendation Number RAR–05/02); • U4 Slack adjustment during Chapter 13, pertaining to Form FRA F • S104 ‘‘Radio controlled switch not switching operation, unrelated to using 6180.107, ‘‘Alternative Record for Illness locked effectively.’’ FRA amends Train RCL Claimed to be Work-Related.’’ Accident Cause Code S104 by adding • U5 Insufficient training, unrelated FRA revised the instructions for the ‘‘(equipment failure)’’ to the code’s to using RCL • use of the form consistent with the description. The description of Cause U6 Failure to provide adequate changes adopted in the final rule. See Code S104 as amended reads, ‘‘Radio space between equipment during Section-by-Section Analysis for controlled switch not locked effectively switching operations unrelated to using § 225.21, ‘‘Forms,’’ § 225.25, (equipment failure).’’ FRA incorporated RCL • ‘‘Recordkeeping,’’ § 225.27, ‘‘Record this change in order to clarify that S104 U7 Close or no clearance, unrelated Retention,’’ § 225.33, ‘‘Internal Control pertains to equipment failure, not to using RCL human error. • U8 Act of God, unrelated to using Plan’’ and the FRA Guide, Appendix H, • ‘‘Forms’’ for additional information. H707 ‘‘Radio controlled switch not RCL locked effectively.’’ FRA amends Train In the final regulation to 49 CFR part The final rule revises Q1 in the Accident Cause Code H707 by adding 225, 68 FR 10107, March 3, 2003, new Question and Answer box as the form ‘‘(human error)’’ to the code’s codes and form changes were made to no longer has a data element for an description. The description for Cause accommodate the recording events employee’s social security number. Code H707 denotes ‘‘Radio controlled when remote control locomotive Rather, employee social security switch not locked effectively (human operations (RCL) were involved. number has been replaced with a field error).’’ FRA incorporated this change in A special task group of railroad safety requesting the employee’s identification order to clarify that H707 pertains to officers representing labor and industry number. This clarifying amendment is human error, not equipment failure. and FRA members was created in the meant to make the Q1 accurate and • M 309 ‘‘Grade Crossing Suicide’’; RSAC Accident/Incident Working consistent with the changes to the form. M310 ‘‘Grade Crossing Attempted Group to discuss the coding of RCL. The Appendix A, ‘‘Railroad Codes.’’ Suicide’’; M509 ‘‘Suicide Resulting in results of the special task group would Train Accident’’; and M510 ‘‘Attempted be presented to the entire working group The FRA Guide updates the railroad Suicide Resulting in Train Accident’’ for for approval. The concern of the codes. In addition, the final rule adds a use in block 38 of Form FRA F 6180.54, reporting officers was to prevent any web address where there is an up-to- ‘‘Rail Equipment Accident/Incident major changes to the then current forms date list of railroad codes. Report.’’ See Section-by-Section or databases. In part, this rested on their

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information technology offices’ internal additional sets of codes for SOFA RCL (4) To Part I of the ‘‘Location charges for making major programming events (related to RCL and unrelated to Circumstance Codes’’ add a code for: changes. The FRA team was tasked with RCL). This oversight was not discovered • Other than Platform. finding a way to include RCL involved until October 2003, well after the Also change the Location Circumstance accidents and incidents on the publication and effective date of the Code ‘‘P—Passenger Terminal’’ to ‘‘P— following three forms: Form FRA F revised regulation. Passenger Station on Platform’’. 6180.54, ‘‘Rail Equipment Accident/ All of the parties to the Full Working (5) To the ‘‘Tools, Machinery, Incident Report’’; Form FRA F 6180.57, Group agreed that any omission in Appliances, Structures, Surfaces, (etc.) ‘‘Highway-Rail Crossing Accident/ capturing SOFA related injuries was a Circumstance Codes’’ add codes for: Incident Report’’; and Form FRA F serious problem. FRA developed 16 • Door, End or Side—Passenger 6180.55a, ‘‘Railroad Injury/Illness additional codes to correspond to the Train; and Summary (Continuation Sheet),’’ previous eight codes. The new codes R1 • Door, Trap. without changing the database through R8 and U1 through U8 were The full RSAC agreed to these structures. promulgated in December 2003, and recommendations on October 25, 2007. FRA found a way to capture RCL- were subsequently added to the FRA Subsequently, FRA’s Safety related incidents on both the Form FRA Guide to remedy the immediate Knowledge Management Division’s F 6180.54, ‘‘Rail Equipment Accident/ concern. While the initial publication of Incident Report,’’ and Form FRA F database experts reviewed the RSAC these SOFA codes was not subject to a approved coding scheme in an effort to 6180.57, ‘‘Highway-Rail Crossing notice and comment period, FRA Accident/Incident Report’’ without prevent redundant codes, develop ease invited comments on the addition of in coding for reporting officers and expanding the database or making a these SOFA codes but did not receive major change on the form or the clerks not familiar with all the nuances any comments on this change. in gap incidents, and to develop a respective database. Capturing this FRA is also adding new Circumstance information on Form FRA F 6180.55a, system to easily cull passenger station Codes to Appendix F of the FRA Guide platform gap incidents from the casualty ‘‘Railroad Injury and Illness for use on Form FRA F 6180.55a, (Continuation Sheet),’’ remained database. Based on this review, FRA is ‘‘Railroad Injury and Illness Summary adding the following new codes to problematic due to the small number of (Continuation Sheet),’’ to better identify data fields and limited amount of data Appendix F—Circumstance Codes as injuries that occur in or due to follows: collected for each reportable event. FRA passenger station platform gap. FRA developed a solution by expanding the (1) To the ‘‘Physical Act Circumstance believes that the collection of this Codes’’ FRA proposes to add code: number of Probable Causes in the information will allow the agency to • Circumstance Codes. The method 80—Stepping across (passenger assess the magnitude of these types of cars). chosen by FRA, and accepted by the injuries, identify locations where RSAC Working Group, was to take each (2) To Part III of the ‘‘Location passenger station platform gap related Circumstance Codes’’ FRA proposes to code for Probable Reason Circumstance injuries frequently occur, and ultimately Codes and create two additional codes, add codes: aid FRA in efforts to reduce such • G1—Rail Car Door Threshold Plate one for RCL-related to the event and injuries. another for RCL involved but unrelated to Edge of Platform—Gap; The RSAC General Passenger Safety • G2—Area Between Coupled Cars to the event. Therefore, the probable Task Force reported to the full RSAC on reason of ‘‘Equipment,’’ code 04 had two and Platform; October 25, 2007, its Cause Code • G3—Area Along Car body, other additional codes: ‘‘Equipment, related to Recommendations for passenger station ’’ ‘‘ than Threshold Plate and Platform Edge; using RCL, code 24, and Equipment, platform gap related injuries as follows: unrelated to using RCL,’’ code 44. This and (1) To the ‘‘Physical Act Circumstance • technique, although clumsy, satisfied G4—Car in Vestibule. Codes’’ add codes for: ‘‘ railroad safety reporting officers, rail • (3) To the Probable Reason for Injury/ Passenger Train-Boarding; and Illness Circumstance Codes’’ FRA labor officials, and FRA. • Passenger Train-Alighting. Codes 21 through 59 in Probable proposes to add code: Reason for the ‘‘Remotely Controlled Also revise the ‘‘Physical Act • 18—Slipped, fell, stumbled due to Locomotive(s) Environment’’ was Circumstance Codes’’ to clarify that Passenger Station Platform Gap. approved by the full RSAC Working codes 63 (stepping up) and 64 (stepping (4) To the ‘‘Tools, Machinery, Group for Accident/Incident Reporting. over) are to be used for boarding/ Appliances, Structures, Surfaces, (etc.) At a later RSAC Working Group Meeting alighting at high level platforms. Circumstance Codes’’ FRA proposes to in New Orleans, LA, a new discussion (2) To Part III of the ‘‘Location add codes: started about the Probable Reason Circumstance Codes’’ add codes for: • 1G—Door, End or Side—Passenger • Circumstance Codes. This discussion Rail Car Door Threshold Plate to Train; and centered on Switching Operations Edge of Passenger Station Platform Gap; • 2G—Door, Trap—Passenger Train. • Fatality Analysis (SOFA). SOFA events Area Between Coupled Cars and The instructions for coding passenger were claiming 40 to 50 percent of all Platform; • station platform gap incidents are fatalities of railroad workers. The Area Along Car body, other than included in the FRA Guide. Working Group decided to include new Threshold Plate and Platform Edge; • codes to insure that fatal and non-fatal Car in Vestibule; and Appendix G, ‘‘FRA Regional Offices and • SOFA events were culled from other On Platform—Other. Headquarters.’’ injuries. A small task group was formed, Also change Location Circumstance The FRA Guide updates these entries and worked one evening to develop the Code C2—‘‘On Platform’’ to ‘‘On and includes the web address where the eight new codes. The full Working Platform Station.’’ most current contact information can be Group approved these SOFA codes the (3) To the ‘‘Event Circumstance obtained. next day. However, there was an Codes’’ add a code for: ‘‘ ’’ oversight by the Working Group in the • Slipped, fell, stumbled due to Appendix H, Forms. process. There should have been two Passenger Station Platform Gap. FRA is revising its forms, as follows:

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(1) Form FRA F 6180.97 and Form this change in response to privacy (5) Form FRA F 6180.55a. FRA FRA F 6180.98. FRA is revising block 36 concerns. This chapter will include requires railroads to place an ‘‘X’’ on Form FRA F 6180.97 ‘‘Date’’ to state instructions addressing FRA’s representative of ‘‘suicide’’ or ‘‘attempted ‘‘Date Initially Signed/Completed’’; and requirement that (by amending the suicide’’ in block 5r when reporting a block 44 on Form FRA F 6180.98 ‘‘Date’’ definition for ‘‘Accountable Injury or suicide or attempted suicide. FRA also to state ‘‘Date Initially Signed/ Illness’’) railroads complete a Form FRA adds instructions that, if an injury is Completed’’ to clarify that the block F 6180.98, ‘‘Railroad Employee Injury due to a passenger station platform gap must contain the initial date the form and/or Illness Record’’ for any abnormal incident, the railroad must use in block was completed. FRA finds it necessary condition or disorder of a railroad 5n (‘‘Cause’’), ‘‘Probable Reason for to make such change because certain employee that causes or requires the Injury/Illness Circumstance Codes’’ code railroads do not retain the initial date a railroad employee to be examined or number 18—Slipped, fell, stumbled due record was completed, but only the date treated by a qualified health care to Passenger Station Platform Gap, of the most recent update to the record. professional regardless of whether or regardless of whether other codes may Consequently, FRA is unable to discern not it meets the general reporting also be applicable. See Section-by- if the railroad entered each reportable criteria listed in § 225.19(d)(1) through Section analysis for § 225.15, and accountable injury and illness and (6), and that the railroad employee ‘‘Accidents/incidents not to be each reportable and accountable rail claims that, or the railroad otherwise reported,’’ for additional information. equipment accident/incident on the has knowledge that, an event or FRA also changes the title of block 5m appropriate record, as required by exposure arising from the operation of from ‘‘Result’’ to ‘‘Tools’’ to remain § 225.25 (a)–(e), no later than seven the railroad is a discernable cause of the consistent with the wording in working days after receiving abnormal condition or disorder. Appendix F. information or acquiring knowledge that (4) Form FRA F 6180.55. FRA has In addition, in the NPRM, FRA an injury or illness or rail equipment eliminated the notary requirement on requested comments and suggestions on accident/incident has occurred, as Form FRA F 6180.55 block 10, and whether FRA should require railroads to required by § 225.25(f). FRA believes replaced it with a requirement that the complete the longitude and latitude that specifying the date which is report be signed under penalty of blocks on Form FRA F 6180.55a, required to be maintained on the record perjury. The NPRM proposed that the ‘‘Railroad Injury and Illness Summary will resolve any confusion regarding the signature read, as follows: (Continuation Sheet)’’ (blocks 5s and 5t) requirement. (1) If executed within the United for reportable trespasser casualties, and (2) Form FRA F 6180.97. FRA is States, its territories, possessions, or on Form FRA F 6180.54, ‘‘Rail renaming block 12, ‘‘Division’’ to commonwealths: ‘‘I declare (or certify, Equipment Accident/Incident Report’’ ‘‘Subdivision’’ and requiring railroads to verify, or state) under penalty of perjury (blocks 50 and 51). Currently, provide train accident location by that the foregoing is true and correct. completion of longitude and latitude providing subdivision data in this block Executed on (date). data on both of these forms is optional. as a means of improving railroad safety (Signature).’’ Because railroads do not report in the area of train accidents. If the (2) If executed without (i.e., outside longitude and latitude to FRA, FRA railroad is not so divided, enter the of) the United States: ‘‘I declare (or cannot currently geo-locate reportable word ‘‘system.’’ If subdivision data is not certify, verify, or state) under penalty of trespasser casualties. In addition, applicable, the railroad must enter perjury under the laws of the United although FRA can geo-locate reportable terminal/yard name. This change also States of America that the foregoing is accidents/incidents based on the applies to alternative railroad-designed true and correct. Executed on (date). information available in the Form FRA Form FRA 6180.97. This change is (Signature).’’ F 6180.54, it is time consuming. The consistent with the ‘‘Division’’ to To make clear the signee is attesting to final rule provides FRA with the ability ‘‘Subdivision’’ change on Form FRA F the accuracy of all of the information on to determine the precise location of 6180.54. See paragraph N(6) of this the form, the final rule revised the accidents and trespasser injuries. For appendix, ‘‘Form FRA F 6180.54’’ for language, as follows: example, FRA will be able to determine additional information. (1) If executed within the United the exact location of releases of FRA is also clarifying that, in States, its territories, possessions, or hazardous materials or leakages of situations of joint operations, block 26, commonwealths: ‘‘I declare (or certify, diesel fuel. Having the location ‘‘Equipment Damage (in dollars)’’, refers verify, or state) under penalty of perjury information for all train accidents will to the aggregate amount of equipment that the information on this form is true allow FRA to develop better inspection damage incurred for all railroads and correct. Executed on (date). planning, identify locations of involved, and that Block 27, ‘‘Track, (Signature).’’ hazardous materials contamination Signal, Way & Structure Damage (in (2) If executed without (i.e., outside affecting the health and/or environment, dollars)’’ refers to the aggregate amount of) the United States: ‘‘I declare (or and provide to the Transportation of track, signal, way and structure certify, verify, or state) under penalty of Security Administration another tool for damage incurred for all track owners. perjury under the laws of the United security planning. Traditionally, FRA This revision does not change existing States of America that the information and the railroad industry have relied on reporting requirements, and does not on this form is true and correct. the railroad milepost system to represent an additional reporting Executed on (date). reference location, and, in many cases, burden, because both railroads should (Signature).’’ such location data is accurate for short- already be exchanging relevant cost data FRA is able to replace the oath term issues. However, the railroad to determine if the accident was FRA requirement, mandated by 49 U.S.C. milepost system is not reliable. Over the reportable. 20901, with a signature under penalty of long-term, railroads change mileposts (3) Form FRA F 6180.98. FRA is perjury under 28 U.S.C. 1746. See during mergers and reorganizations. replacing the ‘‘Social Security Number’’ Section-by-Section Analysis for Also, mileposts can be inaccurate when requirement in block 6 with a § 225.37, ‘‘Magnetic media transfer and a railroad is able to build a shorter link, requirement for ‘‘Employee electronic submission,’’ for additional or when a railroad does not remove old Identification Number.’’ FRA is making information. mileposts when replacement mileposts,

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which have a different starting location, (‘‘PTC’’).7 While such PTC systems will FRA does not currently obtain sufficient are installed. vary widely in complexity and information to geo-locate trespassers. In Several commenters generally sophistication, such systems will addition, although FRA can geo-locate supported the collection of this type of provide railroads with longitude and reportable accidents/incidents based on information. One commenter, while not latitude coordinates for specific track information available in the Form FRA opposed to the collection of such data, locations. For those railroads that do not F 6180.54, it is time consuming, and was concerned about the resulting costs currently have the equipment necessary thus the requirement of longitude/ and indicated that the requirement to obtain longitude and latitude latitude on that form streamlines the should be phased-in so railroads had coordinates, the final rule permits the data collection process. Furthermore, time to acquire the technology to use of estimated coordinates which can longitude/latitude information enables comply with the regulation. This be freely obtained on the internet. For FRA to obtain specific location commenter also indicated that FRA example, railroads may estimate information in order to pinpoint areas of should consider providing funding for longitude and latitude via publicly concern. GPS equipment, and that longitude and accessible Web sites at no charge (e.g., (6) Form FRA F 6180.54. FRA is latitude should only be required for http://www.gorissen.info/Pierre/maps/ revising block 30 by changing the name certain types of incidents. Commenters googleMapLocation.php or http:// of the block from ‘‘Methods of who were opposed to the mandatory itouchmap.com/latlong.html). Operation’’ to ‘‘Type of Territory.’’ The inclusion of longitude and latitude A comment to the NPRM stated that block will have five coding blocks. Each generally argued that the cost to obtain this revision may create a duty for of the five coding blocks printed in GPS technology was too costly, that the railroads towards trespassers that block 30 will be labeled for exclusive technology was unreliable, that the somehow impacts States’ rights. This use in accordance with codes listed in industry was not ready for such a revision does not create any such duty, Appendix J. The coding blocks are change, and that the regulation would and railroads are already required to representative of the following not improve data collection or railroad collect information on trespassers—this information: The first block (mandatory) safety. revision simply adds a level of detail to will indicate the type of territory After considering the comments increase the value of the information. (signaled or non-signaled); the second received, this final rule requires the See Section-by-Section Analysis block (mandatory) will indicate the mandatory completion of the longitude § 225.41, ‘‘Suicide data,’’ for additional authority for movement; and the third, and latitude blocks on Form FRA F information. A comment suggested that fourth, and fifth blocks (optional) will 6180.55a (blocks 5s and 5t) for any longitude/latitude should be collected indicate additional information through reportable casualty to a trespasser, and and stored in decimal degrees. The final the use of supplemental codes. on Form FRA F 6180.54 (blocks 50 and rule does not adopt this suggestion FRA is making this change because in 51). In order to defray potential costs, because the FRA Guide provides the past few years, with the the longitude and latitude coordinates recording instructions that are sufficient may be either actual or estimated. advancement of PTC, there has been a for FRA’s needs. A comment suggested growing requirement for FRA to Obtaining actual coordinates requires that additional fields be added for the GPS technology in the field, but definitively identify signalized versus city name, station name, railroad ‘‘dark’’ territory. obtaining estimated coordinates only division, and milepost to help The revisions should make requires internet access. For example, determine where the incident occurred. completing the block less burdensome this requirement may be satisfied by The final rule does not adopt this and allow for the identification of providing either: The actual longitude suggestion because such information is territory in a manner compatible with and latitude, as determined at the time not necessary as the longitude/latitude the railroads’ internal railroad coding of the accident/incident, or injury using will be captured. A comment suggested system. These changes are consistent GPS technology; or an estimated that additional fields be added for with suggestions by railroads and the longitude and latitude, as determined by weather, visibility, gender, and railroad AAR that such coding be made easier using a Web site, such as Google maps yard name. The final rule does not and that the FRA Guide provide clearer or the FRA’s free Web site (http:// adopt these suggestions because they are instruction. They also take into fragis.frasafety.net/GISFRASafety/ outside of the scope of this rulemaking, consideration railroad concerns about default.aspx). Moreover, as discussed and weather and visibility information expense associated with having to revise previously, the final rule is effective are currently captured by the Form FRA the form and expressed the desire for Wednesday, June 1, 2011. As such, F 6180.54. Comments stated that some FRA to retain the current form and railroads do have a significant period of GPS equipment would not get reception redesign the coding system but not time to come into compliance. in all areas, and that GPS is unreliable change the database structure or the Regardless, the latitude/longitude because satellite networks can fail. record size. See FRA Guide, Appendix requirement has been an optional field However, FRA believes that, in general, J, ‘‘Type of Territory Codes’’ for on both forms, and while it will be GPS does get reception in most areas additional information. mandatory on the Form FRA F 6180.54 and that satellites generally do not have FRA is renaming block 12, ‘‘Division’’ for all reportable rail equipment failures. Regardless, railroads may use to ‘‘Subdivision’’ and requiring railroads accidents/incidents, with respect to the free online technology to provide to provide train accident location by FRA Form F 6180.55a, it will only be a estimated longitude/latitude in the subdivision data (block 12) on Form requirement for reportable casualties to event that there is no GPS reception. A FRA F 6180.54 as a means of improving trespassers. comment stated that GPS will not railroad safety in the area of train FRA believes that the majority of provide any additional information that accidents. If the railroad is not so railroads already have the capability to is not otherwise available, and thus divided, enter the word ‘‘system.’’ If determine actual longitude and latitude would not improve safety. As stated, for such events on-site. Moreover, subdivision data is not applicable, the railroad must enter terminal/yard name. within the next six years, about one half 7 PTC refers to technology that is capable of of the general rail system will be preventing certain train collisions, derailments, and FRA also revises this form to require equipped with Positive Train Control unauthorized train movements. latitude and longitude. This revision is

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discussed in detail in FRA Guide, • New code ‘‘C’’ reads ‘‘Commuter highway-rail grade crossing accident/ Chapter 6, Form FRA F 6180.55a. Train—Pushing;’’ incident, the roadway may be wet, FRA is adding to block 49, ‘‘Special • New Code ‘‘D’’ reads ‘‘EMU Train;’’ covered with snow, or icy. This revision Study Block’’ descriptive references ‘‘a.’’ and provides FRA with vital information to line one and ‘‘b.’’ to line two for ease • New Code ‘‘E’’ reads ‘‘DMU Train.’’ useful in assessing the risks and causes of reference. FRA requires railroads to These amendments allow for the of highway-rail grade crossing accident/ indicate in block ‘‘Special Study Block’’ delineation of additional types of incidents. In addition, FRA no longer 49a the type of track an accident/ equipment in FRA’s database, needs to capture Whistle Ban/Quiet incident occurred on, by using the codes specifically, locomotives pushing or Zone information in Form FRA F ‘‘CWR’’ for continuous welded rail or pulling, and EMU and DMU trains. The 6180.57, as this information is provided ‘‘OTH’’ for other. FRA notes that the need for such information comes in to FRA in Quiet Zone Notices of special study block was created to allow light of the 2005 passenger train Establishment. See FRA 49 CFR part for the collection of specific accident accident, in which an impact with a 222. information as the need arises. See 61 deliberately placed obstruction caused a The final rule revises the title of block FR 30940, June 18, 1996. The primary derailment with two consequent numbers 38, ‘‘Drivers Age;’’ 39, ‘‘Driver’s purpose of these revisions to the rule is secondary collisions in Glendale, Gender;’’ 40, ‘‘Driver Drove Behind or in to increase the accuracy, completeness, California, in which a number of Front of Train and Struck or was Struck and utility of FRA’s accident database individuals were killed or injured. by Second Train;’’ and 41, ‘‘Driver,’’ by and the clarity of the definitions and Subsequent to that event, FRA was replacing the term ‘‘Driver’’ or ‘‘Driver’s’’ requirements. In light of recent track- asked to conduct analysis regarding the with ‘‘Highway User’’ or ‘‘Highway related accidents/incidents, FRA finds it relative safety of trains with passenger- User’s’’, as applicable. In addition, the occupied cars in the lead. Under its necessary to gather and analyze data of final rule revises block numbers 40 (in prior reporting criteria, FRA could not this nature. The collection and analysis block title) and 41 (in block’s response determine from the database if the of this data is consistent with 49 CFR options) by replacing the term ‘‘drove’’ passenger or commuter equipment being part 213 regarding joint bar inspection with ‘‘went.’’ Such changes clarify that used was in ‘‘pull’’ or ‘‘push’’ mode at the and reporting. railroads should provide the time of an accident/incident (i.e., To account for suicides and attempted information for all highway users whether the locomotive unit providing suicides on Form FRA F 6180.54, FRA involved in a highway-rail grade power was in the front or back of the crossing accident/incident, rather than adds four Miscellaneous Cause Codes to train). In addition, because EMU and Appendix C for use in block 38, Primary just for drivers. DMU trains neither push nor pull as all The final rule revises block 41 by Cause Code: M309 ‘‘Suicide (Highway- of the cars provide power to the train, adding the following descriptive Rail Grade Crossing)’’; M310 ‘‘Attempted FRA needed a code to accurately options: ‘‘Went around/thru temporary Suicide (Highway-Rail Grade Crossing)’’; describe that circumstance as well. barricade’’ and ‘‘Suicide/Attempted M509 ‘‘Suicide (Other Misc.)’’; and (8) FRA Form FRA F 6180.57. The suicide.’’ The final rule also revises the ‘‘ M510 Attempted Suicide (Other final rule revises block 16, ‘‘Position,’’ to ‘‘Drove around or thru the gate’’ ’’ ‘‘ Misc.) to Appendix C, Train Accident read as follows: (1) Stalled or stuck on descriptor to two separate descriptive ’’ ‘‘ Cause Codes to indicate Suicide or crossing (currently ‘‘Stalled on choices: ‘‘Went around the gate’’; and ’’ Attempted Suicide. Additionally, FRA Crossing’’); (2) Stopped on crossing; ‘‘Went thru the gate.’’ If ‘‘Went around/ requires railroads to include suicides (3) Moving over crossing; (4) Trapped thru temporary barricade’’ is selected in and attempted suicides in the casualty on crossing by traffic (currently block 41 due to the temporary closure counts in boxes 46, 47, and 48, as ‘‘Trapped’’); and (5) Blocked on crossing of the crossing, the circumstance of the applicable, and to maintain consistent by gates. In doing so, FRA clarifies the closure (e.g., the roadway was closed for casualty counts between the different difference between choices (1) and (4). repair of crossing surface; maintenance/ reporting forms. FRA has found that under the prior testing of automated warning devises; FRA, for all highway-rail grade options railroads did not necessarily etc.) should be explained in narrative in crossing fatalities, requires railroads to understand that prior option (4) block 54. Additionally, such a narrative include a description in narrative block ‘‘Trapped’’ means trapped by traffic. The should explain how the closure was 52 of the circumstances of the accident. final rule also adds a fifth option, (5) accomplished (e.g., roadway closed to FRA also requires that, if an accident ‘‘Blocked on crossing by gates,’’ to traffic with jersey barriers (concrete is caused by a bond wire attachment capture those situations where a traffic barriers) on both approaches; issue (see proposed Appendix C ‘‘Train highway user is prevented from leaving roadway closed with construction Accident Cause Codes’’), information on the crossing because the highway user is barrels on easterly approach; etc.). In the the methods and locations of those blocked-in by the crossing gates. event of a suicide or attempted suicide, attachments be provided in the narrative The final rule also revises block 34 by option 8, ‘‘Suicide/Attempted suicide’’ block 52. changing the title from ‘‘Whistle Ban’’ to must be indicated in block 41, (7) Forms FRA F 6180.54 and FRA F ‘‘Roadway Conditions’’ and by including regardless of whether other choices may 6180.57. The final rule revises the ‘‘Type the following options: (A) Dry; (B) Wet; also be applicable. The final rule of Equipment’’ block—block 25 on Form (C) Snow/Slush; (D) Ice; (E) Sand, Mud, requires the inclusion of the suicide or FRA F 6180.54 and block 24 on Form Dirt, Oil, Gravel; and (F) Water attempted suicide in the casualty counts FRA F 6180.57—as follows: (Standing, Moving). Block 34 captures in block numbers 46, 49, and 52, as • Code ‘‘2’’ was changed from the roadway conditions at the time of applicable, to maintain consistent ‘‘Passenger Train’’ to ‘‘Passenger Train— the highway-rail grade crossing casualty counts between the different Pulling;’’ accident/incident. This information is reporting forms. • Code ‘‘3’’ was changed from needed because data provided to FRA The final rule revises the title of block ‘‘Commuter Train’’ to ‘‘Commuter regarding ‘‘Weather Conditions’’ in block 48, ‘‘Total Number of Highway-Rail Train—Pulling;’’ 23 does not necessarily speak to road Crossing Users’’ to read ‘‘Total Number • New code ‘‘B’’ reads ‘‘Passenger conditions. For example, while the of Vehicle Occupants (including Train—Pushing;’’ weather may be clear at the time of a driver).’’ Collection of this data allows

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FRA to cross-check ‘‘Casualties to:’’ the information, but still cannot make a rule does not add additional fields, and block 46 with the number of vehicle determination. These limitations will only clarifies the available selections for occupants in block 48. FRA has found increase the quality and accuracy of existing fields. that this information is an important data the agency gathers related to FRA received the following other tool in analyzing reports and ensuring highway-rail grade crossing accidents/ comments regarding proposed Form continuity and compliance in reporting. incidents by requiring railroads to make FRA F 6180.57 revisions that are not In accordance with Chapter 2 of the an effort to gather the information. adopted in this final rule: FRA Guide, vehicles include In the NPRM, FRA requested • A commenter requested that FRA automobiles, buses, trucks, motorcycles, comments and suggestions for any revise block 32 by adding a field to bicycles, farm vehicles, and all other additional information that might be indicate whether there was a stop/yield modes of surface transportation, gathered on Form FRA F 6180.57, that sign at the highway-rail grade crossing, motorized, and unmotorized. would be useful in determining how to determine whether such signs are The final rule requires, in ‘‘Special and why highway-rail grade crossing effective. This final rule does not adopt Study Block’’ 53a, that railroads indicate accidents/incidents occur. This final this suggestion because this data can be whether the highway-rail crossing rule makes several revisions to the FRA captured in the U.S. DOT National accident/incident was recorded by a Guide specifically regarding Form FRA Highway-Rail Crossing Inventory. locomotive video recorder and, if so, F 6180.57 based on the comments • A commenter requested that FRA whether information gathered in received, in addition to other changes eliminate the ‘‘Watchman’’ code in block viewing the recording was used by the proposed in the NPRM. 32 because it is rarely used. The final railroad to complete the FRA Highway- Specifically, the final rule revises the rule does not adopt this suggestion Rail Grade Crossing Accident/Incident FRA Guide to clarify that block 41’s because the ‘‘Watchman’’ code provides ‘‘ ’’ Report. To facilitate the collection of other designation should be selected valuable safety data. for drivers who were shoved onto the this information, FRA includes • A commenter requested that FRA track and who were then in a collision, instructions in the FRA Guide and revise block 32 by adding a field to ‘‘ ’’ so that the accident/incident may be places two sets of yes or no options in show whether the crossing warning was ‘‘ ’’ described in the narrative section. The block 53a; one for video taken and one a pedestrian or vehicular warning ‘‘ ’’ final rule also revises the FRA Guide for video used. This information device. The final rule does not adopt provides FRA with knowledge of the regarding block 14 in order to clarify this suggestion because block 32 availability of video footage for that the inclusion of a vehicle speed of sufficiently captures data relating to the particular accidents/incidents; how 0 mph when the form elsewhere type of crossing warning. often and to what degree railroads are indicates that the vehicle was moving • A commenter requested that Form collecting and reviewing video footage over the crossing or around the gate is FRA F 6180.57 be revised to collect of these accidents/incidents; and make prohibited. The final rule also revises ‘‘near miss’’ information. The final rule available to FRA an additional tool to the FRA Guide by designating block 39 does not adopt this suggestion because study the causes and circumstances of (‘‘Highway user’s Gender’’) as a these accident/incidents. Whether or mandatory field, unless the gender is it would be very difficult to obtain such not video footage was captured and unknown as a result of the accident/ information and it is overly burdensome. reviewed for a particular accident/ incident being a hit and run. The final • incident may also serve as an indicator rule also revises the FRA Guide by A commenter requested that Form as to the accuracy of the railroad’s designating block 38 (Highway user’s FRA F 6180.57 require railroad carriers accident/incident report. For additional Age) as a mandatory field, unless the to submit up-to-date crossing information on requirements related to highway user’s age is unknown as a information because the inventory is out locomotive event recorders, see 49 CFR result of the accident/incident being a of date. The final rule does not adopt 229.135, ‘‘Event Recorders.’’ hit and run. In addition, the final rule this suggestion because § 204 of the The final rule includes instructions revises the FRA Guide by clarifying that Railroad Safety Improvement Act of that railroads should limit the use of the block 6 seeks the time of the accident/ 2008, once implemented, imposes a ‘‘unknown’’ option in block 36, incident in the local time of the location mandatory inventory updating scheme ‘‘Crossing Warning Interconnected with where the accident/incident occurred for both States and railroads. Highway Signals’’ and block 37, (the time in the headquarters should not • A commenter requested that Form ‘‘Crossing Illuminated by Street Lights or be used). FRA F 6180.57 capture whether trains Special Lights.’’ FRA has found that One commenter asserted that some of involved in highway-rail grade crossing numerous completed Form FRA F the publicly-submitted comments accidents/incidents had retroreflective 6180.57 forms are submitted to the regarding Form FRA F 6180.57 were sheeting. The final rule does not adopt agency with ‘‘unknown,’’ marked in improper because they were new and this suggestion because, in general, all block numbers 36 and/or 37. Railroads should be pursued in a separate trains will be required to have such have an obligation to submit accurate rulemaking. However, interested parties retroreflective sheeting, capturing the reports to FRA and may not simply had opportunities to address such data is overly burdensome, and it would mark ‘‘unknown’’ without investigating comments during the hearing and in the be difficult to enforce. the matter. As such, block 36 requires second comment period. In addition, • A commenter requested that Form that a railroad must only enter option 3, the interested parties were on notice FRA F 6180.57 be reconciled with the ‘‘unknown,’’ after having first consulted that FRA was interested in receiving U.S. DOT Crossing Inventory Form, so with the signal department of the suggested changes to Form FRA F that discrepancies between the forms railroad responsible for track 6180.57. The revisions to the FRA Guide would be flagged. The final rule does maintenance in an effort to obtain the regarding Form FRA F 6180.57 are a not adopt this suggestion because it is information. In Block 37, the railroad logical outgrowth of this notice. A not germane to the substance of Form must only enter option 3, ‘‘unknown’’ commenter also requested that no FRA F 6180.57, and FRA can check for after the railroad has first made a additional fields be added to the form mismatches in certain data fields diligent effort to discern the relevant because any such additions would be between the Form FRA F 6180.57 and lighting conditions in an effort to obtain unduly burdensome. However, the final the U.S. DOT Crossing Inventory Form.

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• A commenter requested that Form • A commenter requested that Form rail equipment accident/incident has FRA F 6180.57 capture the relevant FRA F 6180.57 capture data regarding occurred, as required in § 225.25(i)(2). police report number for reported the quality and ‘‘rideability’’ of the FRA believes that by specifying the date accidents/incidents as well as the police surface of the highway-rail grade required to be maintained on the record, department information. The final rule crossing at the time of the collision. The any confusion regarding the does not adopt this suggestion because final rule does not adopt this suggestion requirement will be resolved. it does not contribute material safety because it is subjective, difficult data to The final rule revises Questions and information to the Form, is overly capture, and overly burdensome. Answers section at the bottom of the burdensome, and is not supported by • A commenter requested that Form form as the form no longer has a data the November 28, 2005, report by the FRA F 6180.57 capture data regarding element for an employee’s social Department of Transportation’s Office of whether a sidewalk was available for security number. Rather, employee Inspector General, entitled, ‘‘Audit of non-motorized vehicles, the type of Oversight of Highway-Rail Grade sidewalk, and whether the person used social security number has been Crossing Accident Reporting, the sidewalk. The final rule does not replaced with field requesting the Investigations, and Safety Regulations,’’ adopt this suggestion because it is employee’s identification number. This Report No. MH–2006–016. overly burdensome. is a clarifying amendment is meant to • A commenter requested that Form • Lastly, a commenter requested that make the Questions and Answers FRA F 6180.57 require a narrative when Form FRA F 6180.57 capture whether a section accurate and consistent with the ‘‘other’’ is checked in a data field and traffic violation was issued. The final changes to the form. when there is a collision resulting in a rule does not adopt this suggestion (10) Form FRA F 6180.150. In the final fatality. The final rule does not make because such data does not contribute rule, FRA included a draft of this form any revisions to Form FRA F 6180.57 in material safety information to the Form. dealing with following up with response to this suggestion because the FRA received another comment taking potentially injured highway user narrative is already mandatory in such the position that some comments involved in a highway-rail grade regarding Form FRA F 6180.57 are not cases. crossing accident/incident. See FRA • proper because they are new and should A commenter requested that Form Guide, Chapters 10 and 6 of this final be pursued in a separate rulemaking. FRA F 6180.57 capture the total tonnage rule for further discussion. Form FRA F The final rule does adopt some of the of trains involved in collisions. The 6180.150 was submitted to OMB for comments, as discussed above. final rule does not adopt this suggestion approval with the final rule and is still Interested parties had an opportunity to because such data does not contribute pending OMB approval; therefore, the respond during the hearing and in the additional material safety information as railroads cannot use the form until it second comment period. In addition, the U.S. DOT Crossing Inventory Form has been approved. FRA expects that the interested parties were on notice captures the number of trains that use prior to the delayed six month effective the track. that FRA was interested in receiving • A commenter requested that Form suggested changes to Form FRA F date, the form will be approved. FRA F 6180.57 capture whether the 6180.57. Revisions to Form FRA F (11) Form FRA F 6180.56. The final train or the automatic warning device at 6180.57 and the FRA Guide are a logical rule amends Block 6, State, by adding the crossing had an event recorder. The outgrowth of this notice. Hawaii to the list of States. Hawaii was final rule does not adopt this suggestion FRA notes that the final rule makes mistakenly omitted. This is a technical because such data does not contribute many of the Form FRA F 6180.57 amendment and should not create material safety information to the Form. revisions in response to a November 28, additional reporting requirements for • A commenter requested that Form 2005, report by the Department of the railroads. FRA F 6180.57 capture annual track Transportation’s Office of Inspector density and total train tonnage. The General, entitled, ‘‘Audit of Oversight of Appendix I, ‘‘Model Internal Control final rule does not adopt these Highway-Rail Grade Crossing Accident Plans, Including Model Statement of suggestions because such data does not Reporting, Investigations, and Safety Policy against Harassment and contribute material safety information to Regulations, Report No. MH–2006–016. Intimidation and Model Complaint the Form. (9) Form FRA F 6180.107. FRA revises Procedures.’’ • A commenter requested that Form block 6 on Form FRA F 6180.107, The FRA Guide reorders the ICP ‘‘ FRA F 6180.57 capture the relevant Employee Number or Social Security components in Appendix I’s sample posted speed limit. The final rule does Number’’ to ‘‘Employee Identification Internal Control Plan (ICP) to more not adopt this suggestion because such Number’’ to address privacy concerns. closely model the listing of components data can be captured in the U.S. DOT FRA revises block 23 on Form FRA F as set forth in § 225.33. National Highway-Rail Crossing 6180.107 ‘‘Date the Log Entry was Inventory. Completed (mm/dd/yy)’’ to state ‘‘Date Appendix J, ‘‘Type of Territory Codes.’’ • A commenter requested that Form initially signed/completed.’’ FRA made FRA F 6180.57 capture, with respect to this change to clarify that the block FRA adds an Appendix J to the FRA collisions that occur at a private must contain the initial date the form Guide, which provides Type of Territory crossing, whether the crossing was was completed. FRA finds it necessary Codes and instructions for the use of located within the limits of a railroad to make such change because the agency those codes when completing block 30, yard and whether the collision involved has found certain railroads do not retain ‘‘Type of Territory,’’ on Form FRA F an on-duty railroad employee or the initial date a record was completed, 6180.54, ‘‘Rail Equipment Accident/ contractor. The final rule does not adopt but only the date of the most recent Incident Report.’’ The codes represent this suggestion because such data does update to the record. FRA is making this type of territory (i.e., signaled territory not contribute material safety revision to ensure that it can discern if versus non-signaled territory); the information to the Form, there are few the railroad entered each claimed authority for movement (i.e., signal such accidents, and such information occupational illness on the appropriate indication; mandatory directive; other may be captured by the Form FRA F record no later than seven calendar days than main track—Rule 105); and 6180.55a if the accident resulted in an after receiving information or acquiring additional miscellaneous supplemental injury or a fatality. knowledge that an injury or illness or codes. See FRA Guide, Appendix H,

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‘‘Forms’’ in this final rule for additional The cover letter and Form FRA F the collection of longitude and latitude information. 6180.150 are meant to be tools that data for trespasser accidents/incidents allow the railroad to gather information on Form FRA F6180.55a, ‘‘Railroad Appendix K, ‘‘Electronic Submission of and comply with part 225 accident/ Injury and Illness Summary Reports to FRA.’’ incident reporting and recording (Continuation Sheet)’’ will reduce The FRA Guide adds Appendix K to requirements. As such, the railroad the trespasser casualties. In addition to the specifically provide electronic cover letter should not require the final revisions to its regulations submission instructions and guidance. highway user to provide any medical or contained in this notice, FRA is revising personal information in order to report the FRA Guide for Preparing Accident/ Appendix L, ‘‘49 CFR part 225.’’ a casualty. Moreover, the cover letter Incident Reports, certain accident/ The FRA Guide includes in Appendix and any communication for the incident recording and reporting forms, L the full regulatory text of part 225. purposes of part 225 should not and the FRA Companion Guide: Appendix M, ‘‘Telephonic Reporting reference claims process. Guidelines for Submitting Accident/ Incident Reports by Alternative Chart.’’ V. Regulatory Impact and Notices Methods. The FRA Guide revises the A. Executive Order 12866 and DOT When quantifiable, FRA estimated Telephonic Reporting Chart to correct Regulatory Policies and Procedures costs and benefits for the twenty-year an error. This clarification is intended to This rule has been evaluated in period immediately following bring the chart into compliance with the accordance with existing policies and implementation of this final rule. FRA rule text. Specifically, this change procedures, and determined to be non- estimated total, present discounted costs simply instructs the user to look at other significant under both Executive Order to equal approximately $5.5 million reasons why telephone notification may 12866 and DOT policies and using a 3 percent discount rate and $3.9 be required regardless of whether the procedures. 44 FR 11034, February 26, million using a 7 percent discount rate. answer to the question—‘‘Was the 1979. FRA has prepared and placed in Total, present discounted benefits are fatality to Railroad Employee, the docket a regulatory evaluation estimated to equal approximately $51 Contractor on Railroad Property, addressing the economic impact of this million at a 3 percent discount rate and Passenger, Highway User due to final rule. Document inspection and $32.2 million at a 7 percent discount collision with railroad rolling stock?’’— copying facilities are available at U.S. rate. is ‘‘No.’’ Department of Transportation, Docket The net present discounted benefits of Appendix N, ‘‘Form FRA F 6180.150, Operations, West Building Ground the impacts quantified in this analysis ‘‘Highway User Injury Inquiry Form,’’ Floor, Room W12–140, 1200 New Jersey equal approximately $45.5 million at a Sample Cover Letter.’’ Avenue, SE., Washington, DC 20590. discount rate of 3 percent and $28.3 Docket material is also available for million at a discount rate of 7 percent. The final rule included a sample inspection on the Internet at http:// FRA expects that the benefits flowing cover letter that the railroads could use www.regulations.gov. Photocopies may from this final rulemaking will surpass to comply with the requirement that also be obtained by submitting a written any additional costs imposed by the they send a Form FRA F 6180.150 and request to the FRA Docket Clerk at the regulation. Most significant are benefits a cover letter to each potentially injured Office of Chief Counsel, RCC–10, Mail arising from the final rule’s requirement highway user involved in a highway-rail Stop 10, Federal Railroad that longitude and latitude blocks on grade crossing accident/incident. The Administration, 1200 New Jersey Form FRA F6180.55a be completed for cover letter must be drafted and comply Avenue, SE., Washington, DC 20590; trespassers. This requirement will with the requirements outlined in please refer to Docket No. FRA–2006– ultimately result in fewer trespasser § 225.21 and the FRA Guide at Chapter 26173. injuries and fatalities. Additional 10. The changes in this final rule would benefits will arise from consolidated With regard to the cover letter, the serve to simplify accident/incident reporting provisions, the easing of instructions contained in the final rule reporting for railroads, ensure that telephonic reporting requirements, and require that the letter contain the railroad worker casualty statistics accident/incident reporting following: simplification. Lastly, FRA anticipates • conform to the same criteria as statistics An explanation of why the railroad from other Federal agencies, and substantial but presently unquantifiable is contacting the highway user; improve the quality of data available for benefits flowing from more precise and • An explanation of part 225 analysis of railroad accidents and complete accident/incident reporting accident/incident reporting incidents. data. Not only does the analysis of requirements; The amendments to part 225 will reported data provide information as to • An explanation of how the form increase the accuracy, precision, the cause of an accident/incident, this and any response will be used for part completeness of railroad accidents/ data can help determine trends, assess 225 reporting requirements; incident records and reports, and hazards, and assist in the development • An explanation that the highway correspondingly, FRA’s and the railroad of effective countermeasures that may user is not required to respond; industry’s information base related to then be implemented to prevent similar • An opportunity to correct incorrect accidents and incidents. This increased accidents and incidents from occurring information in Part I; awareness will not only aid FRA in in the future. More precise and • Identify and provide contact assessing and managing risk, but aid complete data will also help to identify information for a person at the railroad railroads, their employees, and other where safety-oriented programs should who can answer questions with regard interested parties in recognizing and be focused and aid railroads and FRA in to the form; correcting dangerous conditions and setting priorities among inspection and • Provide instructions on how to practices in order to maintain a safe and safety improvement efforts. complete Part II; and, healthy environment for railroad Accordingly, FRA is confident that such • An explanation of how any medical workers and the public. Moreover, FRA benefits, combined with those that were records or information will be handled. anticipates that requirements related to quantified, will more than justify

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incurring the costs associated with as ‘‘small entities’’ governments of cities, recordkeeping and reporting on a implementation of the final rule. counties, towns, townships, villages, personal computer using FRA supplied school districts, or special districts with Accident/Incident Report Generator B. Regulatory Flexibility Act and populations less than 50,000. SBA’s (AIRG) software. This software allows Executive Order 13272 ‘‘size standards’’ may be altered by railroads to send reports to FRA on a The Regulatory Flexibility Act of 1980 Federal agencies, in consultation with CD–ROM or to transmit the information (5 U.S.C. 601 et seq.) and Executive SBA and in conjunction with public to FRA over the Internet. FRA will send Order 13272 (67 FR 53461; August 16, comment. Pursuant to that authority a free updated or new version of the 2002) require agency review of proposed FRA has published a final statement of AIRG software to any railroad that and final rules to assess their impact on agency policy that formally establishes requests it. Other small railroads do not small entities. The Regulatory ‘‘small entities’’ or ‘‘small businesses’’ as use a computer system for reporting. Flexibility Act requires an agency to being railroads, contractors and Accordingly, FRA does not anticipate review regulations to assess their impact hazardous materials shippers that meet that these burdens will be imposed on on small entities. An agency must the revenue requirements of a Class III small entities. conduct a regulatory flexibility analysis railroad as set forth in 49 CFR 1201.1– The factual basis for the certification unless it determines and certifies that a 1, which is $20 million or less in that this final rule will not have a rule is not expected to have a significant inflation-adjusted annual revenues, and significant economic impact on a impact on a substantial number of small commuter railroads or small substantial number of small entities, is entities. Pursuant to the Regulatory governmental jurisdictions that serve that the total cost incurred is far less Flexibility Act of 1980, 5 U.S.C. 605(b), populations of 50,000 or less. See 68 FR than one percent of the annual average the FRA Administrator certifies that this 24891, May 9, 2003, codified at revenue for small railroads final rule will not have a significant Appendix C to 49 CFR part 209. The $20 (approximately $47,000 each in 2006 economic impact on a substantial million limit is based on the Surface (not discounted)). Total costs to small number of small entities. Although a Transportation Board’s revenue railroads due to this final regulation will substantial number of small railroads threshold for a Class III railroad carrier. be approximately $159 (not discounted) will be affected by the rule, none of Railroad revenue is adjusted for per railroad during the first year of the these entities will be significantly inflation by applying a revenue deflator analysis. This burden is solely due to impacted. At the NPRM stage, FRA formula in accordance with 49 CFR the time (3 hours each) for reporting certified that the proposal would not 1201.1–1. FRA is using this definition officers to become acquainted with the result in a significant economic impact for this rulemaking. This final rule revised FRA Guide. On an individual on a substantial number of small entities applies to railroads.8 There are basis, FRA estimates that $159 is one and requested comment on such approximately 665 small railroads that percent or more of the annual operating certification as well all other aspects of would be affected by this final rule. FRA revenues for less than one percent of all the NPRM. Although many comments anticipates that most of the recording small railroads. FRA estimates the total were received in response to the NPRM, and reporting burdens imposed by this cost for years 2 through 20 will be less no comments directly addressed the regulation will be borne by railroads than $100 for small railroads impacted certification. In developing the final that are not considered small, due to the (not discounted) per year, and that the rule, FRA considered all comments decreased likelihood that a small small railroads will experience a received in response to the NPRM. railroad will experience an accident/ positive net benefit for those years. ‘‘Small entity’’ is defined in 5 U.S.C. incident necessitating such recording Accordingly, FRA does not consider this 601 as including a small business and/or reporting. For example, on impact to be significant. Nor does FRA concern that is independently owned average from 2005 through 2007, small anticipate that this regulation would and operated, and is not dominant in its railroads reported approximately 875 or result in long-term or short-term field of operation. The U.S. Small nine percent of all reportable casualties, insolvency for any small railroad. Business Administration (SBA) has and only 294 or 10 percent of all C. Paperwork Statement—Accident/ authority to regulate issues related to reportable accidents/incidents. small businesses, and stipulates in its FRA also anticipates that the Incident Reporting and Recordkeeping size standards that a ‘‘small entity’’ in computer-related burdens will be borne The information collection the railroad industry is a for profit ‘‘line- by the larger railroads because the large requirements in this final rule have been haul railroad’’ that has fewer than 1,500 railroads have chosen to retain their submitted for approval to the Office of employees, a ‘‘short line railroad’’ with accident/incident records and reports Management and Budget (OMB) under fewer than 500 employees, or a electronically in their own systems. the Paperwork Reduction Act of 1995, ‘‘commuter rail system’’ with annual Large railroads also submit their 44 U.S.C. 3501 et seq. The sections that receipts of less than seven million accident/incident reports to FRA contain the new and current dollars. See ‘‘Size Eligibility Provisions electronically via their own systems. information collection requirements and and Standards,’’ 13 CFR part 121 subpart Most small railroads complete their the estimated time to fulfill each A. Additionally, section 601(5) defines federally required accident/incident requirement are as follows:

Total annual CFR Section—49 CFR Respondent Total annual Average time per burden universe responses response hours

225.6—Consolidated Reporting—New Requirements—Writ- 718 railroads ...... 4 requests ...... 40 hours ...... 160 ten Request by RR. —Written agreements on subsidiaries ...... 718 railroads ...... 4 agreements ...... 2 hours ...... 8

8 Note that FRA has not, unless specifically noted, were not made for this final certification because and would not change the outcome or results of the updated the data used in this analysis from the they would not significantly affect numerical analysis. Certification Statement for the NPRM. Adjustments estimates, would result in very few additional costs

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Total annual CFR Section—49 CFR Respondent Total annual Average time per burden universe responses response hours

—Notifications on changes to subsidiaries and amended 718 railroads ...... 1 notification + 1 1 hr. + 1 hr ...... 2 written agreement. agreement. 225.9—Telephone Reports—Certain Accidents/Incidents and 718 railroads ...... 3,300 reports ...... 15 minutes ...... 825 Other Events. 225.11—Reporting of Rail Equipment Accidents/Incidents 718 railroads ...... 3,600 forms ...... 2 hours ...... 7,200 (Form FRA F 6180.54). 225.12(a)—Form FRA F 6180.81—Rail Equipment Accident/ 718 railroads ...... 1,600 forms ...... 15 minutes ...... 400 Incident Reports—Human Factor. 225.12(b)—Form FRA F 6180.78—Part I Rail Equipment Ac- 718 railroads ...... 1,000 notices + 10 minutes + 3 min- 367 cident/Incident Reports (Human Factor). 4,000 copies + 10 utes. copies. 225.12(c)—Rail Equipment Accident/Incident Reports— 718 railroads ...... 100 requests ...... 20 minutes ...... 33 Human Factor—Joint Operations. 225.12(d)—Rail Equipment Accident/Incident Reports— 718 railroads ...... 20 attachments + 20 15 minutes ...... 10 Human Factor—Late Identification. notices. 225.12(g)—Rail Equipment Accident/Incident Reports— 718 railroads ...... 75 statements ...... 1.5 hours ...... 113 Human Factor—Employee Supplement—Part II Form FRA F 6180.78. 225.12(g)(3)—Rail Equipment Accident/Incident Reports— RR Employees ...... 10 letters ...... 2 hours ...... 20 Human Factor—Employee Confidential Letter. 225.13—Late Reports ...... 718 railroads ...... 25 reports ...... 1 hour ...... 25 —Amended Rail Equipment Accident/Incident Reports ...... 718 railroads ...... 50 amended rpts/40 1 hour + 3 minutes 52 copies. 225.18—Alcohol or Drug Involvement ...... 718 railroads ...... 80 reports ...... 30 minutes ...... 40 —Appended Reports ...... 718 railroads ...... 5 reports ...... 30 minutes ...... 3 225.19—Highway-Rail Grade Crossing Accident/Incident Re- 718 railroads ...... 2,880 forms ...... 2 hours ...... 5,760 ports—Form FRA F 6180.57. —Death, Injury, or Occupational Illness—(Form FRA F 718 railroads ...... 11,544 forms ...... 20 minutes ...... 3,848 6180.55a). —Trespasser Fatalities (FRA F 6180.55a) ...... 718 railroads ...... 486 forms ...... 50 minutes ...... 405 —New Requirement—Suicide/Attempted Suicide Data (FRA 718 railroads ...... 608 forms ...... 65 minutes ...... 659 F 6180.55a). 225.21 Forms —Form FRA F 6180.55—Railroad Injury/Illness Summary .... 718 railroads ...... 8,616 forms ...... 10 minutes ...... 1,436 —Form FRA F 6180.56—Railroad Annual Report of Man 718 railroads ...... 718 forms ...... 15 minutes ...... 180 Hours by State. —Form FRA F 6180.98—Railroad Employee—Injury and/or 718 railroads ...... 18,900 forms ...... 1 hour ...... 18,900 Illness Record. —Form FRA F 6180.98—Copies ...... 718 railroads ...... 567 copies ...... 2 minutes ...... 19 —Form FRA F 6180.97—Initial Rail Equipment Accident/In- 718 railroads ...... 18,200 forms ...... 30 minutes ...... 9,100 cident Record. —New Requirement—Suicide/Attempted Suicide Narrative— 718 railroads ...... 1 form ...... 30 minutes ...... 1 Form FRA F 6180.97. —Form FRA F 6180.107—Alternate Record for Illnesses 718 railroads ...... 300 forms ...... 75 minutes ...... 375 Claimed To Be Work Related. —Form FRA F 6180.39i—RR Accident Notification & Initial 654 Class I & II RR/ 1,000 forms ...... 90 minutes ...... 1,500 Investigation Report. 55 Federal/State agencies/562 in- spectors. —New Requirement—Form FRA F 6180.150—Highway 718 railroads ...... 950 forms ...... 50 minutes ...... 792 User Statement—Sent Out by RRs to Potentially Injured Individuals. —New Requirement—Form FRA F6180.150—Highway User 950 possibly injured 665 forms ...... 45 minutes ...... 499 Statement Return Responses by Persons. individuals. 225.25—Posting of Monthly Summary ...... 718 railroads ...... 8,616 lists ...... 16 minutes ...... 2,298 225.27—Retention of Records—FRA F 6180.98 (New Re- 718 railroads ...... 18,900 records ...... 2 minutes ...... 630 quirement). —Form FRA F 6180.107 ...... 718 railroads ...... 300 records ...... 2 minutes ...... 10 —Monthly List of Employee Injuries ...... 718 railroads ...... 8,616 records ...... 2 minutes ...... 288 —Form FRA F 6180.97 records ...... 718 railroads ...... 18,200 records ...... 2 minutes ...... 607 —Records required under section 225.12 ...... 718 railroads ...... 2,675 records ...... 2 minutes ...... 89 —New Requirement—Electronic Recordkeeping System Re- 718 railroads ...... 18 systems ...... 120 hours ...... 2,160 quirements and RR System Modifications. 225.33—Internal Control Plans—Amended ...... 718 railroads ...... 25 amendments ...... 14 hours ...... 350 225.35—Access to Records and Reports—Lists ...... 15 railroads ...... 400 lists ...... 20 minutes ...... 133 —Subsequent Years ...... 4 railroads ...... 16 lists ...... 20 minutes ...... 5 225.37—Optical Media Transfers ...... 8 railroads ...... 200 transfers ...... 3 minutes ...... 10 —Electronic Submissions—Form FRA F 6180.55 ...... 718 railroads ...... 2,400 forms ...... 3 minutes ...... 120 225.6—Consolidated Reporting—New Requirements—Writ- 718 railroads ...... 4 requests ...... 40 hours ...... 160 ten Request by RR. —Written agreements on subsidiaries ...... 718 railroads ...... 4 agreements ...... 2 hours ...... 8

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Total annual CFR Section—49 CFR Respondent Total annual Average time per burden universe responses response hours

—Notifications on changes to subsidiaries and amended 718 railroads ...... 1 notification + 1 1 hr. + 1 hr ...... 2 written agreement. agreement. 225.9—Telephone Reports—Certain Accidents/Incidents and 718 railroads ...... 3,300 reports ...... 15 minutes ...... 825 Other Events. 225.11—Reporting of Rail Equipment Accidents/Incidents 718 railroads ...... 3,600 forms ...... 2 hours ...... 7,200 (Form FRA F 6180.54). 225.12(a)—Form FRA F 6180.81—Rail Equipment Accident/ 718 railroads ...... 1,600 forms ...... 15 minutes ...... 400 Incident Reports—Human Factor. 225.12(b)—Form FRA F 6180.78—Part I Rail Equipment Ac- 718 railroads ...... 1,000 notices + 10 minutes + 3 min- 367 cident/Incident Reports—(Human Factor). 4,000 copies + 10 utes. copies. 225.12(c)—Rail Equipment Accident/Incident Reports— 718 railroads ...... 100 requests ...... 20 minutes ...... 33 Human Factor—Joint Operations. 225.12(d)—Rail Equipment Accident/Incident Reports— 718 railroads ...... 20 attachments + 20 15 minutes ...... 10 Human Factor—Late Identification. notices. 225.12(g)—Rail Equipment Accident/Incident Reports— 718 railroads ...... 75 statements ...... 1.5 hours ...... 113 Human Factor—Employee Supplement—Part II Form FRA F 6180.78. 225.12(g)(3)—Rail Equipment Accident/Incident Reports— RR Employees ...... 10 letters ...... 2 hours ...... 20 Human Factor—Employee Confidential Letter. 225.13—Late Reports ...... 718 railroads ...... 25 reports ...... 1 hour ...... 25 —Amended Rail Equipment Accident/Incident Reports ...... 718 railroads ...... 50 amended rpts/40 1 hour + 3 minutes 52 copies. 225.18—Alcohol or Drug Involvement ...... 718 railroads ...... 80 reports ...... 30 minutes ...... 40 —Appended Reports ...... 718 railroads ...... 5 reports ...... 30 minutes ...... 3 225.19—Highway-Rail Grade Crossing Accident/Incident Re- 718 railroads ...... 2,880 forms ...... 2 hours ...... 5,760 ports—Form FRA F 6180.57. —Death, Injury, or Occupational Illness—(Form FRA F 718 railroads ...... 11,544 forms ...... 20 minutes ...... 3,848 6180.55a). —Trespasser Fatalities (FRA F 6180.55a) ...... 718 railroads ...... 486 forms ...... 50 minutes ...... 405 —New Requirement—Suicide/Attempted Suicide Data(FRA 718 railroads ...... 608 forms ...... 65 minutes ...... 659 F 6180.55a). 225.21 Forms —Form FRA F 6180.55—Railroad Injury/Illness Summary .... 718 railroads ...... 8,616 forms ...... 10 minutes ...... 1,436 —Form FRA F 6180.56—Railroad Annual Report of Man 718 railroads ...... 718 forms ...... 15 minutes ...... 180 Hours by State. —Form FRA F 6180.98—Railroad Employee—Injury and/or 718 railroads ...... 18,900 forms ...... 1 hour ...... 18,900 Illness Record. —Form FRA F 6180.98—Copies ...... 718 railroads ...... 567 copies ...... 2 minutes ...... 19 —Form FRA F 6180.97—Initial Rail Equipment Accident/In- 718 railroads ...... 18,200 forms ...... 30 minutes ...... 9,100 cident Record. —New Requirement—Suicide/Attempted Suicide Narrative— 718 railroads ...... 1 form ...... 30 minutes ...... 1 Form FRA F 6180.97. —Form FRA F 6180.107—Alternate Record for Illnesses 718 railroads ...... 300 forms ...... 75 minutes ...... 375 Claimed To Be Work Related. —Form FRA F 6180.39i—RR Accident Notification & Initial 654 Class I & II RR/ 1,000 forms ...... 90 minutes ...... 1,500 Investigation Report. 55 Federal/State agencies/562 in- spectors. —New Requirement—Form FRA F 6180.150—Highway 718 railroads ...... 950 forms ...... 50 minutes ...... 792 User Statement–Sent Out by RRs to Potentially Injured In- dividuals. —New Requirement—Form FRA F6180.150—Highway User 950 possibly injured 665 forms ...... 45 minutes ...... 499 Statement Return Responses by Persons. Individuals. 225.25—Posting of Monthly Summary ...... 718 railroads ...... 8,616 lists ...... 16 minutes ...... 2,298 225.27—Retention of Records—FRA F 6180.98 (New Re- 718 railroads ...... 18,900 records ...... 2 minutes ...... 630 quirement). —Form FRA F 6180.107 ...... 718 railroads ...... 300 records ...... 2 minutes ...... 10 —Monthly List of Employee Injuries ...... 718 railroads ...... 8,616 records ...... 2 minutes ...... 288 —Form FRA F 6180.97 records ...... 718 railroads ...... 18,200 records ...... 2 minutes ...... 607 —Records required under section 225.12 ...... 718 railroads ...... 2,675 records ...... 2 minutes ...... 89 —New Requirement—Electronic Recordkeeping System Re- 718 railroads ...... 18 systems ...... 120 hours ...... 2,160 quirements and RR System Modifications. 225.33—Internal Control Plans—Amended ...... 718 railroads ...... 25 amendments ...... 14 hours ...... 350 225.35—Access to Records and Reports—Lists ...... 15 railroads ...... 400 lists ...... 20 minutes ...... 133 —Subsequent Years ...... 4 railroads ...... 16 lists ...... 20 minutes ...... 5 225.37—Optical Media Transfers ...... 8 railroads ...... 200 transfers ...... 3 minutes ...... 10 —Electronic Submissions—Form FRA F 6180.55 ...... 718 railroads ...... 2,400 forms ...... 3 minutes ...... 120

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All estimates include the time for implications that imposes substantial Order 13132, and has determined that reviewing instructions; searching direct compliance costs and that is not preparation of a federalism summary existing data sources; gathering or required by statute, unless the Federal impact statement for this final rule is maintaining the needed data; and government provides the funds not required. reviewing the information. For necessary to pay the direct compliance information or a copy of the paperwork costs incurred by State and local E. International Trade Impact package submitted to OMB, contact Mr. governments, the agency consults with Assessment Robert Brogan at 202–493–6292 or Ms. State and local governments, or the The Trade Agreement Act of 1979 Kimberly Toone at 202–493–6132 or via agency consults with State and local prohibits Federal agencies from e-mail at the following addresses: government officials early in the process engaging in any standards or related [email protected]; of developing the proposed regulation. activities that create unnecessary [email protected]. Where a regulation has federalism obstacles to the foreign commerce of the Organizations and individuals implications and preempts State law, United States. Legitimate domestic desiring to submit comments on the the agency seeks to consult with State objectives, such as safety, are not collection of information requirements and local officials in the process of considered unnecessary obstacles. The should direct them to the Office of developing the regulation. statute also requires consideration of Management and Budget, Office of FRA has determined that this final international standards and, where Information and Regulatory Affairs, 725 rule will not have substantial direct appropriate, that they be the basis for 17th St., NW., Washington, DC 20503, effects on the States, on the relationship U.S. standards. This rulemaking is attn: FRA Desk Officer. Comments may between the national government and also be sent via e-mail to the Office of the States, nor on the distribution of purely domestic in nature and is not Management and Budget at the power and responsibilities among expected to affect trade opportunities following address: various levels of government. In for U.S. firms doing business overseas or [email protected]. addition, FRA has determined that this for foreign firms doing business in the OMB is required to make a decision final rule will not impose substantial United States. concerning the collection of information direct compliance costs on State and F. Environmental Impact requirements contained in this final rule local governments. Therefore, the between 30 and 60 days after consultation and funding requirements FRA has evaluated this final rule in publication of this document in the of Executive Order 13132 do not apply. accordance with its ‘‘Procedures for Federal Register. Therefore, a comment AAJ commented that FRA should delete Considering Environmental Impacts’’ to OMB is best assured of having its full any language in the preamble regarding (FRA’s Procedures) (64 FR 28545; May effect if OMB receives it within 30 days the preemption of State common law 26, 1999) as required by the National of publication. claims. AAJ stated that, contrary to the Environmental Policy Act (42 U.S.C. FRA cannot impose a penalty on agency’s assertions, the Federal Railroad 4321 et seq.), other environmental persons for violating information Safety Act of 1970 (FRSA) does not statutes, Executive Orders, and related collection requirements which do not authorize the preemption of State regulatory requirements. FRA has display a current OMB control number, common law claims. AAJ claimed that determined that this final rule is not a if required. FRA intends to obtain FRA regulations have never lawfully major FRA action (requiring the current OMB control numbers for any preempted State law claims. The preparation of an environmental impact new information collection petition also stated that Congress statement or environmental assessment) requirements resulting from this reiterated its intent to preserve State tort because it is categorically excluded from rulemaking action prior to the effective claims against negligent railroads. detailed environmental review pursuant date of this final rule. The OMB control Finally, AAJ argued that agency rules to section 4(c)(20) of FRA’s Procedures. number, when assigned, will be must clearly follow the FRSA’s limited See 64 FR 28547; May 26, 1999. Section announced by separate notice in the preemption language, and that State 4(c)(20) reads as follows: Federal Register. common law should govern railroad Actions categorically excluded. Certain D. Federalism Implications safety issues. Although this final rule removes the classes of FRA actions have been determined to be categorically excluded from the This final rule has been analyzed in preemption language previously requirements of these Procedures as they do accordance with the principles and contained in part 225, FRA notes that not individually or cumulatively have a criteria contained in Executive Order this part could have preemptive effect 13132, ‘‘Federalism’’ (64 FR 43255, Aug. significant effect on the human environment. by the operation of law under the FRSA. * * * The following classes of FRA actions 10, 1999), which requires FRA to See 49 U.S.C. 20106. Section 20106 are categorically excluded: * * * develop an accountable process to provides that States may not adopt or Promulgation of railroad safety rules and ‘‘ ensure meaningful and timely input by continue in effect any law, regulation, or policy statements that do not result in State and local officials in the order related to railroad safety or significantly increased emissions or air or development of regulatory policies that security that covers the subject matter of water pollutants or noise or increased traffic have federalism implications.’’ ‘‘Policies a regulation prescribed or issued by the congestion in any mode of transportation. that have federalism implications’’ are Secretary of Transportation (with defined in the Executive Order to respect to railroad safety matters) or the In accordance with section 4(c) and include regulations that have Secretary of Homeland Security (with (e) of FRA’s Procedures, the agency has ‘‘substantial direct effects on the States, respect to railroad security matters), further concluded that no extraordinary on the relationship between the national except when the State law, regulation, circumstances exist with respect to this government and the States, or on the or order qualifies under the ‘‘essentially regulation that might trigger the need for distribution of power and local safety or security hazard’’ a more detailed environmental review. responsibilities among the various exception to § 20106. As a result, FRA finds that this final rule levels of government.’’ Under Executive In sum, FRA has analyzed this final is not a major Federal action Order 13132, the agency may not issue rule in accordance with the principles significantly affecting the quality of the a regulation with federalism and criteria contained in Executive human environment.

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G. Unfunded Mandates Reform Act of I. Privacy Act (b) The Internal Control Plan 1995 requirements in § 225.33(a)(3) through Interested parties should be aware (a)(11) do not apply to— Pursuant to Section 201 of the that anyone is able to search the * * * * * Unfunded Mandates Reform Act of 1995 electronic form of all comments (Pub. L. 104–4, 2 U.S.C. 1531), each received into any agency docket by the ■ 4. Section 225.5 is amended as Federal agency ‘‘shall, unless otherwise name of the individual submitting the follows: prohibited by law, assess the effects of comment (or signing the comment, if ■ a. By adding definitions for Federal regulatory actions on State, submitted on behalf of an association, ‘‘discernable cause,’’ ‘‘event or local, and tribal governments, and the business, labor union, etc.). To get more exposure,’’ ‘‘injury or illness,’’ ‘‘railroad private sector (other than to the extent information on this matter and to view carrier,’’ ‘‘significant aggravation of a that such regulations incorporate the Regulations.gov Privacy Notice go to pre-existing injury or illness,’’ and requirements specifically set forth in http://www.regulations.gov/search/ ‘‘suicide data’’; law).’’ Section 202 of the Act (2 U.S.C. footer/privacyanduse.jsp. You may ■ b. By revising paragraphs (1) and (3) 1532) further requires that ‘‘before review DOT’s complete Privacy Act in the definition of ‘‘accident/incident’’; promulgating any general notice of Statement in the Federal Register and proposed rulemaking that is likely to published on April 11, 2000 (65 FR ■ c. By revising the definitions of result in the promulgation of any rule 19477–78). ‘‘accountable injury or illness,’’ that includes any Federal mandate that List of Subjects in 49 CFR Part 225 ‘‘accountable rail equipment accident/ may result in expenditure by State, incident,’’ ‘‘event or exposure arising local, and tribal governments, in the Investigations, Penalties, Railroad from the operation of a railroad,’’ aggregate, or by the private sector, of safety, Reporting and recordkeeping ‘‘general reporting criteria,’’ ‘‘highway- $100 million or more (adjusted annually requirements. rail grade crossing,’’ ‘‘new case,’’ for inflation) [$140.8 million in 2010] in ‘‘qualified health care professional,’’ The Final Rule any 1 year, and before promulgating any ‘‘railroad,’’ ‘‘work environment,’’ and final rule for which a general notice of For the reasons discussed in the ‘‘work-related.’’ proposed rulemaking was published, preamble, FRA amends part 225 of The additions and revisions read as the agency shall prepare a written chapter II, subtitle B of Title 49, Code follows: statement’’ detailing the effect on State, of Federal Regulations, as follows: local, and tribal governments and the § 225.5 Definitions. private sector. This final rule would not PART 225—[AMENDED] As used in this part— result in the expenditure, in the Accident/incident means: aggregate, of $140.8 million or more in ■ 1. The authority citation for part 225 (1) Any impact between railroad on- any one year, and thus preparation of continues to read as follows: track equipment and a highway user at such a statement is not required. a highway-rail grade crossing. The term Authority: 49 U.S.C. 103, 322(a), 20103, ‘‘highway user’’ includes automobiles, 20107, 20901–02, 21301, 21302, 21311; 28 H. Energy Impact buses, trucks, motorcycles, bicycles, U.S.C. 2461, note; and 49 CFR 1.49. Executive Order 13211 requires farm vehicles, pedestrians, and all other Federal agencies to prepare a Statement ■ 2. Section 225.1 is revised to read as modes of surface transportation of Energy Effects for any ‘‘significant follows: motorized and un-motorized; energy action.’’ 66 FR 28355, May 22, * * * * * 2001. Under the Executive Order, a § 225.1 Purpose. (3) Each death, injury, or occupational ‘‘significant energy action’’ is defined as The purpose of this part is to provide illness that is a new case and meets the any action by an agency (normally the Federal Railroad Administration general reporting criteria listed in published in the Federal Register) that with accurate information concerning § 225.19(d)(1) through (d)(6) if an event promulgates or is expected to lead to the the hazards and risks that exist on the or exposure arising from the operation promulgation of a final rule or Nation’s railroads. FRA needs this of a railroad is a discernable cause of the regulation, including notices of inquiry, information to effectively carry out its resulting condition or a discernable advance notices of proposed regulatory responsibilities under 49 cause of a significant aggravation to a rulemaking, and notices of proposed U.S.C. chapters 201–213. FRA also uses pre-existing injury or illness. The event rulemaking: (1)(i) That is a significant this information for determining or exposure arising from the operation regulatory action under Executive Order comparative trends of railroad safety of a railroad need only be one of the 12866 or any successor order, and (ii) is and to develop hazard elimination and discernable causes; it need not be the likely to have a significant adverse effect risk reduction programs that focus on sole or predominant cause. on the supply, distribution, or use of preventing railroad injuries and Accountable injury or illness means energy; or (2) that is designated by the accidents. Any State may require any abnormal condition or disorder of a Administrator of the Office of railroads to submit to it copies of railroad employee that causes or Information and Regulatory Affairs as a accident/incident and injury/illness requires the railroad employee to be significant energy action. FRA has reports filed with FRA under this part, examined or treated by a qualified evaluated this final rule in accordance for accidents/incidents and injuries/ health care professional, regardless of with Executive Order 13211. FRA has illnesses which occur in that State. whether or not it meets the general determined that this final rule is not reporting criteria listed in § 225.19(d)(1) likely to have a significant adverse effect ■ 3. Section 225.3 is amended by through (d)(6), and the railroad on the supply, distribution, or use of revising the introductory text of employee claims that, or the railroad energy. Consequently, FRA has paragraph (b) to read as follows: otherwise has knowledge that, an event determined that this regulatory action is or exposure arising from the operation not a ‘‘significant energy action’’ within § 225.3 Applicability. of the railroad is a discernable cause of the meaning of Executive Order 13211. * * * * * the abnormal condition or disorder.

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Accountable rail equipment accident/ Highway-rail grade crossing means: aggravation of a pre-existing injury or incident means (1) A location where a public illness that is discernably caused by an (1) Any derailment regardless of highway, road, or street, or a private event or exposure arising from the whether or not it causes any damage or roadway, including associated operation of a railroad that results in: (2) Any collision, highway-rail grade sidewalks, crosses one or more railroad (1) With respect to any person: crossing accident/incident, obstruction tracks at grade; or (i) Death, provided that the pre- accident, other impact, fire or violent (2) A location where a pathway existing injury or illness would likely rupture, explosion-detonation, act of explicitly authorized by a public not have resulted in death but for the God, or other accident/incident authority or a railroad carrier that is event or exposure; involving the operation of railroad on- dedicated for the use of non-vehicular (ii) Loss of consciousness, provided track equipment (standing or moving) traffic, including pedestrians, bicyclists, that the pre-existing injury or illness that results in damage to the railroad on- and others, that is not associated with would likely not have resulted in loss of track equipment (standing or moving), a public highway, road, or street, or a consciousness but for the event or signals, track, track structures or private roadway, crosses one or more exposure; or roadbed and that damage impairs the railroad tracks at grade. The term (iii) Medical treatment in a case where functioning or safety of the railroad on- ‘‘sidewalk’’ means that portion of a street no medical treatment was needed for track equipment (standing or moving), between the curb line, or the lateral line the injury or illness before the event or signals, track, track structures or of a roadway, and the adjacent property exposure, or a change in the course of roadbed. line or, on easements of private medical treatment that was being * * * * * property, that portion of a street that is provided before the event or exposure. Discernable cause means a causal paved or improved and intended for use (2) With respect to a railroad factor capable of being recognized by by pedestrians. employee, one or more days away from the senses or the understanding. An Injury or illness means an abnormal work, or days of restricted work, or days event or exposure arising from the condition or disorder. Injuries include of job transfer that otherwise would not operation of a railroad is a discernable cases such as, but not limited to, a cut, have occurred but for the event or cause of (i.e., discernably caused) an fracture, sprain, or amputation. Illnesses exposure. injury or illness if, considering the include both acute and chronic * * * * * circumstances, it is more likely than not illnesses, such as but not limited to, a Suicide data means data regarding the that the event or exposure is a cause of skin disease, respiratory disorder, or death of an individual due to the the injury or illness. The event or poisoning. A musculoskeletal disorder individual’s commission of suicide as exposure arising from the operation of a is also an injury or illness. Pain is an determined by a coroner, public police railroad need not be a sole, predominant injury or illness when it is sufficiently officer or other public authority or or significant cause of the injury or severe to meet the general reporting injury to an individual due to that illness, so long as it is a cause (i.e., a criteria listed in § 225.19(d)(1) through individual’s attempted commission of contributing factor). (6). suicide as determined by a public police * * * * * * * * * * office or other public authority. Only Event or exposure includes an New case means a case in which the death of, or injury to, the individual incident, activity, or occurrence. either the injured or ill person has not who committed the suicidal act is Event or exposure arising from the previously experienced a reported suicide data. Therefore, casualties to a operation of a railroad means— injury or illness of the same type that person caused by the suicidal act of (1) With respect to a person who is affects the same part of the body, or the another person are not considered not an employee of the railroad: injured or ill person previously (i) A person who is on property suicide data. experienced a reported injury or illness owned, leased, maintained or operated * * * * * of the same type that affected the same by the railroad, an event or exposure Work environment means the that is related to the performance of the part of the body but had recovered establishment and other locations where railroad’s rail transportation business; or completely (all signs and/or symptoms one or more railroad employees are (ii) A person who is not on property disappeared) from the previous injury or working or present as a condition of owned, leased, maintained or operated illness, and an event or exposure arising their employment. The work over by the railroad, an event or from the operation of a railroad environment includes not only physical exposure directly resulting from one or discernably caused the signs and/or locations, but also the equipment or more of the following railroad symptoms to reappear. materials processed or used by an operations: * * * * * employee during the course of his or her (A) A train accident, a train incident, Qualified health care professional is a work, and activities of a railroad or a non-train incident involving the health care professional operating employee associated with his or her railroad; or within the scope of his or her license, work, whether on or off the railroad’s (B) A release of a hazardous material registration, or certification. In addition property. from a railcar in the possession of the to licensed physicians, the term Work-related means related to an railroad or of another dangerous includes members of other occupations event or exposure occurring within the commodity that is related to the associated with patient care and work environment. An injury or illness performance of the railroad’s rail treatment such as chiropractors, is presumed work-related if an event or transportation business. podiatrists, physicians assistants, exposure occurring in the work (2) With respect to a person who is an psychologists, and dentists. environment is a discernable cause of employee of the railroad, an event or Railroad means a railroad carrier. the resulting condition or a discernable exposure that is work-related. Railroad carrier means a person cause of a significant aggravation to a * * * * * providing railroad transportation. pre-existing injury or illness. The causal General reporting criteria means the * * * * * event or exposure need not be criteria listed in § 225.19(d)(1) through Significant aggravation of a pre- peculiarly occupational so long as it (6). existing injury or illness means occurs at work. For example, a causal

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event or exposure may be outside the which subsidiaries are included in its estimate) of $150,000 or more to railroad employer’s control, such as a lightning railroad system, agreeing to assume and nonrailroad property; or strike; involve activities that occur at responsibility for compliance with this work but are not directly productive, part for all named subsidiaries making * * * * * such as horseplay; or involve activities up the system, and consenting to ■ 8. Section 225.11 is revised to read as that are not peculiar to work, such as guarantee any monetary penalty follows: walking on a level floor, bending down, assessments or other liabilities owed to § 225.11 Reporting of accidents/incidents. climbing stairs or sneezing. Such the United States government that are (a) Each railroad subject to this part activities, along with other normal body incurred by the named subsidiaries for shall submit to FRA a monthly report of movements, are considered events. So violating Federal accident/incident all railroad accidents/incidents long as the event or exposure occurred reporting requirements. Any change in described below: at work and is a discernable cause of the the subsidiaries making up the railroad (1) Highway-rail grade crossing injury or illness, the injury or illness is system requires immediate notification accidents/incidents described in work-related. It does not matter whether to FRA and execution of an amended there are other or bigger causes as well, § 225.19; agreement. Executed agreements will be (2) Rail equipment accidents/ or that the activity at work is no published in the docket. incidents described in § 225.19; and different from actions performed outside (3) Death, injury and occupational work. If an injury is within the ■ 6. Section 225.7 is amended by illness accidents/incidents described in presumption of work-relatedness, the revising paragraph (a) to read as follows: § 225.19. employer can rebut work-relatedness (b) The report shall be made on the only by showing that the case falls § 225.7 Public examination and use of forms prescribed in § 225.21 in hard within an exception listed in § 225.15. reports. copy or, alternatively, by means of In cases where it is not obvious whether (a) Accident/Incident reports made by optical media or electronic submission a precipitating event or exposure railroads in compliance with these rules via the Internet, as prescribed in occurred at work or outside work, the shall be available to the public in the § 225.37, and shall be submitted within employer must evaluate the employee’s manner prescribed by part 7 of this title. 30 days after expiration of the month work duties and environment and Accident/Incident reports may be during which the accidents/incidents decide whether it is more likely than inspected at the U.S. Department of occurred. Reports shall be completed as not that an event or exposure at work Transportation, Federal Railroad required by the current FRA Guide. A was at least one of the causes of the Administration, Office of Safety, West copy of the FRA Guide may be obtained injury of the injury or illness. Building 3rd Floor, 1200 New Jersey from the U.S. Department of ■ 5. Section 225.6 is added to read as Avenue, SE., Washington, DC 20590. Transportation, Federal Railroad follows: Written requests for a copy of a report Administration, Office of Safety should be addressed to the Freedom of Analysis, RRS–22, Mail Stop 25 West § 225.6 Consolidated reporting. Information Act Coordinator, Office of A parent corporation may request in Building 3rd Floor, Room W33–107, Chief Counsel, Federal Railroad 1200 New Jersey Avenue, SE., writing that FRA treat its commonly Administration, U.S. Department of controlled railroad carriers, which Washington, DC 20590 or downloaded Transportation, RCC–10, Mail Stop 10, from FRA’s Office of Safety Analysis operate as a single, seamless, integrated West Building 3rd Floor, Room W33– United States rail system, as a single Web site at http://safetydata.fra.dot.gov/ 437, 1200 New Jersey Avenue, SE., officeofsafety/, and click on ‘‘Click Here railroad carrier for purposes of this part. Washington, DC 20590, and be (a) The written request must include for Changes in Railroad Accident/ accompanied by the appropriate fee Incident Recordkeeping and Reporting.’’ the following: prescribed in part 7 of this title. To (1) A list of the subsidiary railroads facilitate expedited handling, each ■ 9. Section 225.12 is amended by controlled by the parent corporation; request should be clearly marked ‘‘FOIA revising paragraph (g)(3) to read as and ’’ follows: (2) An explanation as to how the Request for Accident/Incident Report. For additional information on subsidiary railroads operate as a single, § 225.12 Rail Equipment Accident/Incident seamless, integrated United States submitting a FOIA request to FRA see Reports alleging employee human factor as railroad system. FRA’s Web site at http:// cause; Employee Human Factor (b) The request must be sent to the www.fra.dot.gov/us/foia. Attachment; notice to employee; employee supplement. FRA Docket Clerk, Federal Railroad * * * * * Administration, U.S. Department of * * * * * Transportation, RCC–10, Mail Stop 10, ■ 7. Section 225.9 is amended by (g) * * * West Building 3rd Floor, Room W31– revising paragraph (a)(2)(iii) and (iv) to (3) Information that the employee 109, 1200 New Jersey Avenue, SE., read as follows: wishes to withhold from the railroad Washington, DC 20590. Each request must not be included in this § 225.9 Telephonic reports of certain Supplement. If an employee wishes to received shall be acknowledged in accidents/incidents and other events. writing. The acknowledgment shall provide confidential information to contain the docket number assigned to (a) * * * FRA, the employee should not use the the request and state the date the (2) * * * Supplement form (part II of Form FRA request was received. F 6180.78, ‘‘Notice to Railroad Employee (c) FRA will notify the applicant (iii) A fatality resulting from a train Involved in Rail Equipment Accident/ parent corporation of the agency’s accident or train incident at a highway- Incident Attributed to Employee Human decision within 90 days of receipt of the rail grade crossing when death occurs Factor; Employee Statement application. within 24 hours of the accident/ Supplementing Railroad Accident (d) If FRA approves the request, the incident; Report’’), but rather provide such parent corporation must enter into a (iv) A train accident resulting in confidential information by other written agreement with FRA specifying damage (based on a preliminary gross means, such as a letter to the employee’s

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collective bargaining representative, or result solely from a non-work-related paragraph are met. (This exception does to the U.S. Department of event or exposure that occurs outside not affect a railroad’s obligation to Transportation, Federal Railroad the work environment; maintain records of accidents/incidents Administration, Office of Safety (2) The injury or illness results solely as required by § 225.25 (Form FRA F Analysis, RRS–22, Mail Stop 25 West from voluntary participation in a 6180.97, ‘‘Initial Rail Equipment Building 3rd Floor, Room W 33–306, wellness program or in a medical, Accident/Incident Record’’)). 1200 New Jersey Avenue, SE., fitness, or recreational activity such as (1) Cars derailed on industry tracks by Washington, DC 20590. The letter blood donation, physical examination, non-railroad employees or non-railroad should include the name of the railroad flu shot, exercise class, racquetball, or employee vandalism, providing there is making the allegations, the date and baseball; no involvement of railroad employees; place of the accident, and the rail (3) The injury or illness is solely the and equipment accident/incident number. result of an employee eating, drinking, (2) Damage to out of service cars or preparing food or drink for personal resulting from high water or flooding * * * * * consumption. However, if the employee (e.g., empties placed on a storage or ■ 10. Section 225.15 is revised to read is made ill by ingesting food repair track). This exception does not as follows: contaminated by workplace apply if such cars are placed into a contaminants (such as lead), or gets food moving consist and as a result of this § 225.15 Accidents/incidents not to be poisoning from food supplied by the reported. damage a reportable rail equipment employer, the case would be considered accident results. The following accidents/incidents are work-related and reported as either a not reportable: Worker on Duty—Employee (Class A) or § 225.17 [Amended] (a) With respect to persons other than Employee Not on Duty (Class B) railroad employees. A railroad is not to depending on the employees duty ■ 11. Section 225.17 is amended by report injuries that occur at highway-rail status; removing paragraph (d). grade crossings that do not involve the (4) The injury or illness is solely the ■ 12. Section 225.18 is added to read as presence or operation of on-track result of an employee doing personal follows: equipment, or the presence of railroad tasks (unrelated to their employment) at § 225.18 Alcohol or drug involvement. employees then engaged in the the establishment outside of the operation of a railroad; employee’s assigned working hours; (a) In preparing Form FRA F 6180.54, (b) With respect to railroad employees (5) The injury or illness is solely the ‘‘Rail Equipment Accident/Incident on duty. A railroad is not to report the result of personal grooming, self Report,’’ under this part, the railroad following injuries to or illnesses of a medication for a non-work-related shall make such specific inquiry as may railroad employee as Worker on Duty— condition, or is intentionally self- be reasonable under the circumstances Employee (Class A), if any of the inflicted (except that for FRA reporting into the possible involvement of alcohol conditions in this paragraph (b) are met. purposes a railroad shall not exclude an or drug use or impairment in such (These exceptions apply only to Worker accountable or reportable injury or accident or incident. If the railroad on Duty—Employee (Class A) and do illness that is the result of a suicide or comes into possession of any not affect a railroad’s obligation to attempted suicide); information whatsoever, whether or not report these injuries and illnesses as (6) The illness is the common cold or confirmed, concerning alleged alcohol other types of persons (Employee Not flu (Note: contagious diseases such as or drug use or impairment by an On Duty (Class B); Passenger on Trains tuberculosis, brucellosis, hepatitis A, or employee who was involved in, or (Class C); Nontrespassers-On Railroad plague are considered work-related if arguably could be said to have been Property (Class D); Trespassers (Class the employee is infected at work); or involved in, the accident/incident, the E)), or a railroad’s obligation to maintain (7) The illness is a mental illness. railroad shall report such alleged use or a ‘‘Railroad Employee Injury/Illness Mental illness will not be considered impairment as provided in the current Record’’ (Form FRA F 6180.98 or work-related unless the employee FRA Guide. If the railroad is in alternative railroad-designed form)). voluntarily provides the employer with possession of such information but does (1) The injury or illness occurred in an opinion from a physician or other not believe that alcohol or drug or about living quarters and an event or licensed health care professional with impairment was the primary or exposure not arising from the operation appropriate training and experience contributing cause of the accident/ of a railroad was the cause; (psychiatrist, psychologist, psychiatric incident, then the railroad shall include (2) At the time of the injury or illness, nurse practitioner, etc.) stating that the in the narrative statement of such report the employee was present in the work employee has a mental illness that is a brief explanation of the basis of such environment as a member of the general work-related. determination. public rather than as an employee; or (d) With respect to contractors and (b) For any train accident within the (3) The injury or illness is caused by volunteers. A railroad is not to report requirement for post-accident testing a motor vehicle accident and occurs on injuries to contractors and volunteers under § 219.201 of this chapter, the a company parking lot or company that are listed in paragraphs (b) and (c) railroad shall append to the Form FRA access road while the employee is of this section. For purposes of this F 6180.54, ‘‘Rail Equipment Accident/ commuting to or from work. paragraph only, an exception listed in Incident Report,’’ any report required by (c) With respect to railroad employees paragraphs (b) and (c) referencing ‘‘work 49 CFR 219.209(b) (pertaining to failure on or off duty. A railroad is not to report environment’’ is construed to mean for to obtain samples for post-accident the following injuries to or illnesses of contractors and volunteers only, on toxicological testing). a railroad employee, Worker on Duty— property owned, leased, operated over (c) For any train or non-train incident, Employee (Class A) or Employee Not on or maintained by the railroad. the railroad shall provide any available Duty (Class B), if any of the following (e) With respect to rail equipment information concerning the possible conditions in this paragraph (c) are met: accidents/incidents. A railroad is not to involvement of alcohol or drug use or (1) The injury or illness involves signs report rail equipment accidents/ impairment in such accident or or symptoms that surface at work but incidents if the conditions in this incident.

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(d) In providing information required (6) Illness or injury that: date of the highway-rail grade crossing by this section, a railroad shall not (i) Meets the application of any of the accident/incident. The form shall be disclose any information concerning use following specific case criteria: sent along with a cover letter and a of controlled substances determined by (A) Needlestick or sharps injury to a prepaid preaddressed return envelope. the railroad’s Medical Review Officer to railroad employee; The form and cover letter shall be have been consistent with 49 CFR (B) Medical removal of a railroad completed in accordance with 219.103. employee; instructions contained in the current (C) Occupational hearing loss of a ‘‘FRA Guide for Preparing Accident/ ■ 13. Section 225.19 is amended by railroad employee; Incident Reports.’’ Any response from a revising paragraph (d) to read as (D) Occupational tuberculosis of a highway user is voluntary and not follows: railroad employee; mandatory. A railroad shall use any (E) Musculoskeletal disorder of a § 225.19 Primary groups of accidents/ response from a highway user to comply incidents. railroad employee if this disorder is with part 225’s accident/incident reportable under one or more of the reporting and recording requirements. * * * * * general reporting criteria; or (d) Group III—Death, injury, or (ii) Is a covered data case. ■ 15. Section 225.25 is amended by occupational illness. Each death, injury, revising paragraphs (a), (b)(6) and or occupational illness that is a new * * * * * (b)(28), (e)(28), and (i), and by adding case and meets the general reporting ■ 14. Section 225.21 is amended by paragraph (j) to read as follows: criteria listed in paragraphs (d)(1) revising the introductory text and through (6) of this section shall be paragraph (j) and adding paragraph (k) § 225.25 Recordkeeping. reported to FRA on Form FRA F to read as follows: (a) Each railroad shall maintain either 6180.55a, ‘‘Railroad Injury and Illness the Railroad Employee Injury and/or Summary (Continuation Sheet)’’ if an § 225.21 Forms. Illness Record (Form FRA F 6180.98) or event or exposure arising from the The following forms and copies of the an alternative railroad-designed record operation of a railroad is a discernable ‘‘FRA Guide for Preparing Accident/ as described in paragraph (b) of this cause of the resulting condition or a Incident Reports’’ may be obtained from section of all reportable and accountable discernable cause of a significant the U.S. Department of Transportation, injuries and illnesses of its employees aggravation to a pre-existing injury or Federal Railroad Administration, Office for each railroad establishment where illness. The event or exposure arising of Safety Analysis, RRS–22, Mail Stop such employees report to work, from the operation of a railroad need 25 West Building 3rd Floor, Room W33– including, but not limited to, an only be one of the discernable causes; it 107, 1200 New Jersey Avenue, SE., operating division, general office, and need not be the sole or predominant Washington, DC 20590 or downloaded major installation such as a locomotive cause. The general injury/illness from FRA’s Office of Safety Analysis or car repair or construction facility. reporting criteria are as follows: Web site at http://safetydata.fra.dot.gov/ (b) * * * (1) Death to any person; officeofsafety/, and click on ‘‘Click Here (6) Employee identification number; (2) Injury to any person that results in: for Changes in Railroad Accident/ * * * * * (i) Medical treatment; Incident Recordkeeping and Reporting.’’ (28) The railroad shall identify the (ii) Significant injury diagnosed by a * * * * * preparer’s name; title; telephone physician or other licensed health care (j) Form FRA F 6180.107—Alternative number with area code; and the date the professional even if it does not result in Record for Illnesses Claimed to be Work- record was initially signed/completed. death, medical treatment or loss of Related. Form FRA F 6180.107 or an * * * * * consciousness of any person; or alternative railroad-designed record may (e) * * * (iii) Loss of consciousness; be used by a railroad in lieu of Form (28) Date the record was initially (3) Injury to a railroad employee that FRA F 6180.98, ‘‘Railroad Employee signed/completed. results in: ’’ (i) A day away from work; Injury and/or Illness Record (described * * * * * (ii) Restricted work activity or job in paragraph (h) of this section), to (i) Claimed Occupational Illnesses. (1) transfer; or record each illness claimed by an Each railroad may maintain a Form FRA (iii) Significant injury diagnosed by a employee to be work-related that is F 6180.107, ‘‘Alternative Records for physician or other licensed health care reported to the railroad for which there Illnesses Claimed to be Work-Related,’’ professional even if it does not result in is insufficient information for the or an alternate railroad-designed record death, medical treatment, loss of railroad to determine whether the as described in paragraph (j) of this consciousness, a day away from work, illness is work-related. This record shall section, in place of Form FRA F restricted work activity or job transfer of be completed and retained in 6180.98, ‘‘Railroad Employee Injury a railroad employee; accordance with the requirements set and/or Illness Record,’’ only for those (4) Occupational illness of a railroad forth in § 225.25 and § 225.27. claimed occupational illnesses for employee that results in: (k) Form FRA F 6180.150—Highway which the railroad has not received (i) A day away from work; User Injury Inquiry Form.—Form FRA F information sufficient to determine (ii) Restricted work activity or job 6180.150 shall be sent to every whether the occupational illness is transfer; potentially injured highway user, or work-related. (iii) Loss of consciousness; or their representative, involved in a (2) Each railroad shall enter each (iv) Medical treatment; highway-rail grade crossing accident/ illness claimed to be work-related on (5) Significant illness of a railroad incident. If a highway user died as a the appropriate record, as required by employee diagnosed by a physician or result of the highway-rail grade crossing paragraph (i)(1) of this section, as early other licensed health care professional accident/incident, a railroad must not as practicable, but no later than seven even if it does not result in death, a day send this form to any person. The working days after receiving away from work, restricted work activity railroad shall hand deliver or send by information or acquiring knowledge that or job transfer, medical treatment, or first class mail the letter within a an employee is claiming they have loss of consciousness; reasonable time period following the incurred an occupational illness.

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(3) When a railroad does not receive located so that they are readily § 225.27 Retention of records. information sufficient to determine accessible to FRA upon request. (a)(1) Five-year retention period. Each whether a claimed occupational illness (j) An alternative railroad-designed railroad shall retain the following forms case is accountable or reportable, the record may be used in lieu of the Form for at least five years after the end of the railroad shall make a good faith effort to FRA F 6180.107, ‘‘Alternative Record for calendar year to which they relate: obtain the necessary information by Illnesses Claimed to be Work-Related.’’ (i) Form FRA F 6180.98, ‘‘Railroad December 1 of the next calendar year. Any such alternative record shall Employee Injury and/or Illness Record;’’ (4) Within 15 calendar days of contain all of the information required (ii) Form FRA F 6180.107, receiving additional information on the Form FRA F 6180.107. Although ‘‘Alternative Record for Illnesses regarding a claimed occupational illness this information may be displayed in a Claimed to be Work-Related;’’ case, each railroad shall document different order from that on Form FRA (iii) Monthly List of Injuries and receipt of the information, including F 6180.107, the order of the information Illnesses required by § 225.25; and date received and type of document/ shall be consistent from one such record (iv) Form FRA F 6180.150, ‘‘Highway information received, in narrative block to another such record. The order User Injury Inquiry Form.’’ 19 of Form FRA F 6180.107, chosen by the railroad shall be (2) Two-year retention period. Each ‘‘Alternative Record for Illnesses consistent for all of the railroad’s railroad shall retain the following forms Claimed to be Work-Related.’’ reporting establishments. Railroads may for at least two years after the end of the (5) Within 45 calendar days of list additional information in the calendar year to which they relate: receiving additional information alternative record beyond the (i) Form FRA F 6180.97, ‘‘Initial Rail regarding a claimed occupational information required on Form FRA F Equipment Accident/Incident Record,’’ illness, each railroad shall re-evaluate 6180.107. The alternative record shall required by § 225.25; the claimed occupational illness to contain, at a minimum, the following (ii) The Employee Human Factor determine work-relatedness, taking into information: Attachments (Form FRA F 6180.81, account the new information, and (1) Name of Reporting Railroad; ‘‘Employee Human Factor Attachment’’) document any findings resulting from (2) Case/Incident Number; required by § 225.12, that have been the re-evaluation in narrative block 19 (3) Employee’s Name (first, middle, received by the railroad; of Form FRA F 6180.107, ‘‘Alternative last); (iii) The written notices to employees Record for Illnesses Claimed to be (4) Employee’s Date of Birth (mm/dd/ required by § 225.12 (Part I of Form FRA Work-Related.’’ yy); F 6180.78, ‘‘Notice to Railroad Employee (6) For any claimed occupational (5) Employee’s Gender; Involved in Rail Equipment Accident/ illness case determined to be (6) Employee Identification Number; Incident Attributed to Employee Human accountable or reportable, each railroad (7) Date Employee was Hired (mm/ Factor; Employee Statement shall: dd/yy); Supplementing Railroad Accident (i) Complete a Form FRA F 6180.98, (8) Employee’s Home Address Report’’), that have been received by the ‘‘Railroad Employee Injury and/or (include street address, city, State and railroad; and Illness Record’’ or alternative railroad- Zip code); (iv) The Employee Statements designed form within seven days of (9) Employee’s Home Telephone Supplementing Railroad Accident making such determination; Reports described in § 225.12(g) (Part II (ii) Retain the Form FRA F 6180.98, Number (with area code); (10) Name of Facility Where Railroad of Form FRA F 6180.78, ‘‘Notice to ‘‘Railroad Employee Injury and/or Railroad Employee Involved in Rail Illness Record,’’ in accordance with Employee Normally Reports to Work; (11) Location, or Last Know Facility, Equipment Accident/Incident § 225.27; and Attributed to Employee Human Factor; (iii) Report the occupational illness, Where Employee Reports to Work; Employee Statement Supplementing as applicable, in accordance with (12) Job Title of Railroad Employee; Railroad Accident Report’’), that have § 225.11. (13) Department to Which Employee been received by the railroad. (7) For any claimed occupational is Assigned; illness case determined not to be (14) Date on Which Employee or * * * * * accountable or reportable, each railroad Representative Notified Company (c) Each railroad shall retain the shall include the following information Personnel of Condition (mm/dd/yy); original hard copy of each completed in narrative block 19 of Form FRA F (15) Name of Railroad Official and signed Form FRA F 6180.55, 6180.107, ‘‘Alternative Record for Notified; ‘‘Railroad Injury and Illness Summary,’’ Illnesses Claimed to be Work-Related’’ (16) Title of Railroad Official Notified; that the railroad submits to FRA on or alternative railroad-designed form: (17) Nature of Claimed Illness; optical media (CD–ROM) or (i) Why the case does not meet (18) Supporting Documentation; electronically via the Internet to reporting criteria; (19) Custodian of Documents (Name, [email protected] for at least five (ii) The basis upon which the railroad Title, and Address); years after the calendar year to which it made this determination; and (20) Location of Supporting relates. If the railroad opts to submit the (iii) The most authoritative Documentation; report to FRA electronically via the information the railroad relied upon to (21) Narrative; internet, the railroad must also retain a make the determination. (22) Preparer’s Name; hard copy print out of FRA’s electronic (8) Although Form FRA 6180.107, (23) Preparer’s Title; notice acknowledging receipt of the ‘‘Alternative Record for Illnesses (24) Preparer’s Telephone Number railroad’s submission for a period of five Claimed to be Work-Related’’ (or the (with area code); and years after the calendar year to which alternate railroad-designed form), may (25) Date the record was initially the report acknowledged relates. not include all supporting signed/completed (mm/dd/yy). (d) Railroads may retain accident/ documentation, such as medical incident records as required by records, the alternative record shall note ■ 16. Section 225.27 is amended by paragraphs (a) and (b) of this section in the custodian of those documents and revising paragraph (a) and adding hard copy format or in electronic where the supporting documents are paragraphs (c) and (d) to read as follows: format. After October 31, 2011,

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accident/incident records, retained by investigative and/or surveillance (Form FRA F 6180.55) in .pdf or .jpg railroads as required by paragraphs (a) activities under part 212 of this chapter format only; and and (b) of this section, in hard copy or any other authorized representative (2) The completed accident/incident format or electronic format are subject to shall be produced in a readable text report submissions. the following system requirements: format and all data shall be identified by (c) (1) Each railroad utilizing the (1) Design Requirements. Any narrative descriptions (e.g., ‘‘accident/ electronic submission via the Internet electronic record keeping system used incident number,’’ ‘‘number of days option shall submit to FRA at to retain a record required to be retained away from work,’’ ‘‘date of occurrence,’’ [email protected]: by this part shall meet the following etc.). (i) An electronic image of the design parameters: completed and signed hard copy of the ■ (i) The electronic record system shall 17. Section 225.33 is amended by Railroad Injury and Illness Summary be designed such that the integrity of revising paragraph (a)(11) to read as (Form FRA F 6180.55) in .pdf or .jpg each record is retained through follows: format only; and appropriate levels of security such as § 225.33 Internal Control Plans. (ii) The completed accident/incident recognition of an electronic signature, or report submissions. other means, which uniquely identify (a) * * * (11) In the case of the Form FRA F (2) FRA will provide to the railroad an the initiating person as the author of electronic notice acknowledging receipt that record. No two persons shall have 6180.107 or the alternate railroad- designed form, a statement that specifies of submissions filed electronically via the same electronic identity; the Internet. (ii) The electronic system shall ensure the name(s), title(s) and address(es) of (d) Each railroad employing either the that each record cannot be modified, or the custodian(s) of these records, all optical media or electronic submission replaced, once the record is submitted supporting documentation, such as via the Internet option, shall submit its to FRA; medical records, and where the (iii) Any amendment to a record shall documents are located. monthly reporting data for the reports be electronically stored apart from the identified in paragraph (a) of this record which it amends. Each * * * * * section in a year-to-date file format as amendment to a record shall uniquely ■ 18. Section 225.37 is revised to read described in the FRA Guide. identify the person making the as follows: (e) A railroad choosing to use optical amendment and the date the media or electronic submission via the § 225.37 Optical media transfer and internet must use one of the approved amendment was made; electronic submission. (iv) The electronic system shall formats specified in the Companion provide for the maintenance of reports (a) A railroad has the option of Guide. FRA will reject submissions that as originally submitted to FRA without submitting the following reports, do not adhere to the required formats, corruption or loss of data; and updates, and amendments by way of which may result in the issuance of one (v) Policies and procedures must be in optical media (CD–ROM), or by means or more civil penalty assessments place to prevent persons from altering of electronic submission via the against a railroad for failing to provide electronic records, or otherwise Internet: timely submissions of required reports interfering with the electronic system. (1) The Rail Equipment Accident/ as required by § 225.11. Incident Report (Form FRA F 6180.54); (2) Accessibility and availability. Any ■ (2) The Railroad Injury and Illness 19. Section 225.41 is added to read as electronic record system used to create, follows: maintain, or transfer a record required Summary (Form FRA F 6180.55); to be maintained by this part shall meet (3) The Railroad Injury and Illness § 225.41 Suicide Data. the following access and availability Summary (Continuation Sheet) (Form FRA does not include suicide data (as parameters: FRA F 6180.55a); defined in § 225.5) in its periodic (i) Paper copies of electronic records (4) The Highway-Rail Grade Crossing summaries of data on the number of and amendments to those records that Accident/Incident Report (Form FRA F injuries and illnesses associated with may be necessary to document 6180.57); and railroad operations. FRA will maintain compliance with this part shall be (5) The Employee Human Factor suicide data in a database that is not provided to any representative of the Attachment (Form FRA F 6180.81) (the publicly accessible. Suicide data will FRA or of a State agency participating Employee Human Factor Attachment not be available on FRA’s Web site for in investigative and/or surveillance must be in .pdf or .jpg format only). individual reports or downloads. activities under part 212 of this chapter (b) Each railroad utilizing the optical Suicide data will be available to the or any other authorized representative media option shall submit to FRA a public in aggregate format on FRA’s for inspection and photocopying upon computer CD–ROM containing the Web site and via requests under the request in accordance with § 225.35; following: Freedom of Information Act. and (1) An electronic image of the (ii) Paper copies provided to FRA or completed and signed hard copy of the ■ 20. Appendix A to part 225 is revised of a State agency participating in Railroad Injury and Illness Summary to read as follows:

APPENDIX A TO PART 225—SCHEDULE OF CIVIL PENALTIES 1

2 Willful Section Violation Violation

225.6: Failure to comply with consolidated reporting requirements ...... $2,500 $5,000 225.9: (1) Failure to report ...... 2,500 5,000 (2) Failure to immediately report ...... 1,000 2,000 (3) Failure to accurately report ...... 1,000 2,000

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APPENDIX A TO PART 225—SCHEDULE OF CIVIL PENALTIES 1—Continued

2 Willful Section Violation Violation

225.11: (1) Failure to report accident/incident ...... 2,500 5,000 (a) Highway-rail grade crossing. (b) Rail Equipment. (c) Death, Injury, or occupational illness. (2) Report is incomplete ...... 1,000 2,000 225.12: Failure to file Railroad Employee Human Factor form ...... 2,500 5,000 (a) Failure to file Railroad Employee Human Factor Attachment correctly: (1) Employee identified ...... 2,500 5,000 (2) No employee identified ...... 1,000 2,000 (b) (1) Failure to notify employee properly ...... 2,500 5,000 (2) Notification of employee not involved in accident ...... 2,500 5,000 (c) Failure of employing railroad to provide requested information properly ...... 1,000 2,000 (d) (1) Failure to revise report ...... 2,500 5,000 (2) Failure to notify after late identification ...... 2,500 5,000 (f) Submission of notice if employee dies as result of the reported accident ...... 2,500 5,000 (g) Willfully false accident statement by employee ...... 5,000 225.13: (1) Failure to Late reports ...... 2,500 5,000 (2) Failure to Review Employee Statement ...... 2,500 5,000 (3) Failure to Amend Report ...... 1,000 2,000 225.18: Alcohol or drug involvement ...... 2,500 5,000 225.23: Joint operations ...... (1) (1) 225.25: (1) Recordkeeping ...... 2,500 5,000 (2) Failure to post list ...... 1,000 2,000 (3) Posting Prohibited Information ...... 1,000 2,000 (4) Missing fields ...... 1,000 2,000 225.27: (1) Failure to retain records ...... 1,000 2,000 (2) Failure to retain electronic receipt ...... 1,000 2,000 (3) Failure to comply with electronic recordkeeping requirements ...... 1,000 2,000 (4) Failure to provide access to records ...... 1,000 2,000 225.33: (1) Failure to adopt Internal Control Plan or more than two missing/outdated/incorrect components ...... 2,500 5,000 (2) Internal Control Plan with less than three missing/outdated/incorrect components ...... 1,000 2,000 (3) Failure to comply with Internal Control Plan ...... 2,500 5,000 (4) Failure to comply with the intimidation/harassment policy in Internal Control Plan ...... 2,500 5,000 (5) Failure to comply with requirements associated with Form FRA F 6180.150 ...... 2,500 5,000 225.35: Access to records and reports ...... 2,500 5,000 1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. A failure to comply with § 225.23 constitutes a viola- tion of § 225.11. For purposes of §§ 225.25 and 225.27 of this part, each of the following constitutes a single act of noncompliance: (1) A missing or incomplete log entry for a particular employee’s injury or illness; or (2) a missing or incomplete log record for a particular rail equipment acci- dent or incident. Each day a violation continues is a separate offense. 2 The penalty schedule uses section numbers from 49 CFR part 225. If more than one item is listed as a type of violation of a given section, each item is also designated by a ‘‘penalty code,’’ which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

Issued in Washington, DC, on October 6, 2010. Joseph C. Szabo, Administrator, Federal Railroad Administration. [FR Doc. 2010–27641 Filed 11–8–10; 8:45 am] BILLING CODE 4910–06–P

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Part III

Equal Employment Opportunity Commission 29 CFR Part 1635 Regulations Under the Genetic Information Nondiscrimination Act of 2008; Final Rule

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EQUAL EMPLOYMENT OPPORTUNITY rise to the potential misuse of genetic discrimination in group premiums COMMISSION information to discriminate in health based on genetic information and the insurance and employment.’’ GINA use of genetic information as a basis for 29 CFR Part 1635 Section 2(1), 42 U.S.C. 2000ff, note. determining eligibility or setting Experts predict that the twenty-first RIN [3046—AA84] premiums in the individual and century will see tremendous strides in Medigap insurance markets, and place Regulations Under the Genetic the new field of genomic medicine, limitations on genetic testing and the Information Nondiscrimination Act of bringing it into mainstream medical collection of genetic information in 2008 practice. The National Human Genome group health plan coverage, the Research Institute (NHGRI), the institute individual insurance market, and the AGENCY: Equal Employment within the National Institutes of Health Medigap insurance market. Title I also Opportunity Commission. responsible for the mapping of the requires the Secretary of Health and ACTION: Final rule. human genome, notes that ‘‘by Human Services to revise the privacy identifying the genetic factors associated regulations promulgated pursuant to the SUMMARY: The Equal Employment with disease, researchers may be able to Health Insurance Portability and Opportunity Commission (‘‘EEOC’’ or design more effective drugs; to prescribe Accountability Act of 1996 (HIPAA). ‘‘Commission’’) is issuing a final rule to the best treatment for each patient; to HHS has published a notice of proposed implement Title II of the Genetic identify and monitor individuals at high rulemaking that proposes to clarify that Information Nondiscrimination Act of risk from disease; and to avoid adverse genetic information is health 2008 (‘‘GINA’’). Congress enacted Title II drug reactions.’’ NHGRI, The Future of information, and to prohibit group of GINA to protect job applicants, Genomic Medicine: Policy Implications health plans, health insurance issuers current and former employees, labor for Research and Medicine (Bethesda, (including HMOs), issuers of Medicare union members, and apprentices and Md. Nov. 16, 2005), available at http:// supplemental policies, and all other trainees from discrimination based on www.genome.gov/17516574 (last visited health plans covered under the HIPAA their genetic information. Title II of July 7, 2010). privacy regulations from using or GINA requires the EEOC to issue Many genetic tests now exist that can disclosing genetic information for implementing regulations. The inform individuals whether they may be underwriting purposes. Commission issued a proposed rule in at risk for developing a specific disease Title II of GINA prohibits use of the Federal Register on March 2, 2009, or disorder. But just as the number of genetic information in the employment for a sixty-day notice and comment genetic tests increases, so do the context, restricts employers and other period that ended on May 1, 2009. After concerns of the general public about entities covered by Title II from consideration of the public comments, whether they may be at risk of losing requesting, requiring, or purchasing the Commission has revised portions of access to health coverage or genetic information, and strictly limits both the final rule and the preamble. employment if insurers or employers such entities from disclosing genetic DATES: Effective January 10, 2011. have their genetic information. Congress information. The law incorporates by enacted GINA to address these reference many of the familiar FOR FURTHER INFORMATION CONTACT: concerns, by prohibiting discrimination Christopher J. Kuczynski, Assistant definitions, remedies, and procedures based on genetic information and from Title VII of the Civil Rights Act of Legal Counsel, or Kerry E. Leibig, Senior restricting acquisition and disclosure of Attorney Advisor, at (202) 663–4638 1964, as amended, and other statutes such information, so that the general protecting federal, state, and (voice) or (202) 663–7026 (TTY). (These public would not fear adverse are not toll free numbers.) This rule also Congressional employees from employment- or health coverage-related discrimination.2 is available in the following formats: consequences for having a genetic test large print, Braille, audio tape, and or participating in research studies that Background electronic file on computer disk. examine genetic information. Scientific Requests for this rule in an alternative The Commission published a advances require significant cooperation proposed rule to implement Title II of format should be made to the and participation from members of the Publications Information Center at GINA on March 2, 2009, and asked for general public. In the absence of such public comment on the proposed rule, 1–800–669–3362 (voice) or participation, geneticists and other 1–800–800–3302 (TTY). the discussion in the preamble, and scientists would be hampered in their other Title II issues not addressed in SUPPLEMENTARY INFORMATION: research, and efforts to develop new either document. See 74 FR 9056 medicines and treatments for genetic Introduction (March 2, 2009). Several days earlier, on diseases and disorders would be slowed February 25, 2009, the Commission held On May 21, 2008, President George or stymied. a public meeting to announce its W. Bush signed the Genetic Information GINA Title I’s health coverage approval of the proposed rule at which Nondiscrimination Act of 2008 provisions apply to group health plans invited panelists spoke about the impact ‘‘ ’’ ( GINA ), Public Law 110–233, 122 Stat. sponsored by private employers, unions, of genetic information discrimination in 881, codified at 42 U.S.C. 2000ff et seq., and state and local government the workplace (transcript available at into law. Congress enacted GINA in employers; issuers in the group and http://www.eeoc.gov/eeoc/meetings/2- recognition of, among many individual health insurance markets; 25-09/index.cfm). Although they had achievements in the field of genetics, and issuers of Medicare supplemental not had an opportunity to review the the decoding of the human genome and (Medigap) insurance.1 These Title I the creation and increased use of provisions generally prohibit 2 Prior to November 21, 2009, Executive Order genomic medicine. As Congress noted, 13145 prohibited federal executive branch agencies ‘‘New knowledge about genetics may 1 This regulation does not interpret the from discriminating against applicants and allow for the development of better requirements of GINA Title I relating to genetic employees on the basis of genetic information and nondiscrimination in health coverage. Those limited access to and use of genetic information. therapies that are more effective against requirements are administered by the Departments Since its effective date in November 2009, GINA disease or have fewer side effects than of Health and Human Services, Labor, and the has protected federal employees from genetic current treatments. These advances give Treasury. discrimination.

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proposed rule, commenters at the public The Commission also coordinated sites, or social networking sites) that are meeting did express their views on with the Departments of Labor (DOL), likely to contain genetic information issues they believed should be Health and Human Services (HHS), and about individuals. addressed in EEOC’s regulation to the Treasury, which have responsibility For reasons more fully set forth in the effectuate Title II’s purposes. for issuing regulations applicable to preamble’s discussion of 1635.8(a), The Commission received 43 GINA Title I. In particular, DOL (the (b)(1) and (4), the Commission agrees comments from individuals, from Employee Benefits Security that a covered entity may violate GINA groups representing individuals, and Administration), HHS (the Centers for without a specific intent to acquire from organizations representing Medicare & Medicaid Services), and the genetic information. For that reason, the employers and professionals in response Treasury (the Internal Revenue Service) Commission has removed the reference to the proposed rule. Most of those who are responsible for issuing regulations to ‘‘deliberate acquisition’’ of genetic participated in the February 25, 2009 applicable to GINA sections 101–103.4 information in 1635.1. We likewise public meeting submitted written These agencies issued interim final recognize that not every acquisition of comments after reviewing the proposed rules on sections 101 through 103 of genetic information violates GINA. rule that were consistent with their GINA on October 7, 2009. See 74 FR Accordingly, the section now simply public testimony. Further, on March 26, 51664. The HHS Office for Civil Rights indicates that Title II of GINA restricts 2010, President Obama appointed to the is responsible for issuing the regulations requesting, requiring, or purchasing Commission by way of recess applicable to GINA section 105 and genetic information. The rest of the appointments the Chair and two new issued a proposed rule on October 7, language of 1635.1 concerning GINA’s Commissioners. These new members of 2009 at 74 FR 51698. Among the various prohibition on the use of genetic the Commission (and others who were Title II provisions are several that information in employment decision- previously serving on the Commission) address the relationship between Title I making, the requirement that genetic met with a number of stakeholders who and Title II, and the relationship information be kept confidential (which had submitted comments to the record. between Title II and several statutes that includes maintaining written genetic Records of these meetings are included the Departments enforce, including the information that exists in paper or in the rulemaking docket. Employee Retirement Income Security electronic form as a confidential In developing this regulation, the Act of 1974 (ERISA), the Public Health medical record), and the limitations on Commission closely followed the terms Service Act, the Internal Revenue Code, disclosure of genetic information is the of the statute. The Commission’s goal is and HIPAA. same as the language in the proposed to implement the various provisions of rule. Section-by-Section Analysis of the We have also modified this section to Title II consistent with Congress’s Regulation intent, to provide some additional include a point made only in the clarification of those provisions, and to Section 1635.1 Purpose preamble to the proposed rule. A new subparagraph, 1635.1(b), clarifies that explain more fully those sections where In this section, the Commission sets the final rule does not apply to actions Congress incorporated by reference forth the general purposes of GINA. The of a covered entity that do not pertain provisions from other statutes. For language in this section of the final rule example, where GINA section to an individual’s status as an employee, has been modified slightly in response member of a labor organization, or 201(2)(A)(i) defines employee by to several comments that disagreed with reference to Title VII of the Civil Rights participant in an apprenticeship the characterization of Title II as program. The final rule offers two Act of 1964 and other statutes, this prohibiting the ‘‘deliberate acquisition’’ regulation expands on that reference by examples to illustrate this point. Title II of genetic information. See Comments of of GINA would not apply to a medical importing language from these statutes the American Civil Liberties Union examination of an individual conducted so that those using the final regulation (ACLU), Coalition for Genetic Fairness for the purpose of diagnosis and need not refer to other sources when (CGF), Genetic Alliance, and the treatment unrelated to employment, determining the scope of GINA’s Genetics and Public Policy Center in which is conducted by a health care coverage.3 collaboration with Jeremy Gruber professional in the hospital or other The Commission also recognizes that (GPPC). These organizations noted that health care facility where the individual Title II of GINA includes terms that are the term ‘‘deliberate acquisition’’ is an employee. Similarly, Title II would outside the areas of its expertise. In suggested that a covered entity must not govern the actions of a covered particular, the definition of ‘‘genetic have a specific intent to acquire genetic entity carried out in its capacity as a law test’’ refers to ‘‘analysis of human DNA, information in order to violate the law. enforcement agency investigating RNA, chromosomes, proteins, or According to these commenters, a criminal conduct, even where the metabolites that detects genotypes, covered entity violates GINA by subject of the investigation is also an mutations, or chromosomal changes.’’ engaging in acts that present a employee of the covered entity. None of these terms is common to heightened risk of acquiring genetic employment discrimination law. For information, even without a specific Section 1635.2 Definitions—General this reason, Commission staff sought intention to do so, such as when they The Commission reiterates the and obtained technical assistance from fail to inform an individual from whom definitions set forth in GINA section NHGRI, the institute within the National they have requested documentation 201, many of which come from Title VII Institutes of Health responsible for about a manifested disease or disorder of the Civil Rights Act of 1964. decoding the human genome and for not to provide genetic information or However, where the statute merely developing technologies applicable to when they access sources of information incorporates by reference different the study of the genetic components of (e.g., certain types of databases, Web categories of covered employees, the complex disorders. regulation describes more fully the 4 The National Association of Insurance employees GINA protects. We have 3 Unless otherwise noted, use of the term ‘‘GINA’’ Commissioners issued conforming model means ‘‘Title II of GINA.’’ When needed for clarity, regulations relating to section 104 on September 24, retained without change language from the preamble will refer to Title I of GINA or Title 2008, published in the Federal Register on April the proposed rule which said that the II of GINA. 24, 2009 at 74 FR 18808. term ‘‘employee’’ also includes former

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employees. We received two comments statute makes clear, GINA’s definition of Accountability Act, which protects raising concerns with this inclusion. ‘‘employer’’ includes employers as employees in the legislative branch. See The Illinois Credit Union League (ICUL) defined by Title VII at 42 U.S.C. 2 U.S.C. 1301(9). Although the EEOC suggested that there should be a 2000(e)b. Numerous courts have held has no enforcement authority under the temporal qualifier on the term ‘‘former that this definition was not intended to Congressional Accountability Act, as the employee,’’ while a comment jointly permit individual liability. See Lane v. only agency with authority to issue submitted by the U.S. Chamber of Lucent Tech., Inc., 388 F. Supp. 2d 590 regulations under Title II of GINA, we Commerce, the Society for Human (M.D.N.C. 2005) (citing cases from every believe that referencing that law in this Resource Management and a number of circuit except the First Circuit rejecting final regulation appropriately puts other employer representatives individual liability); see also, e.g., employees in the legislative branch and (Chamber/SHRM) objected that our Mandell v. County of Suffolk, 316 F.3d covered employing offices on notice of citation to Robinson v. Shell Oil Co., 519 368 (2d Cir. 2003); Wathen v. General their rights and responsibilities under U.S. 337, 346 (1997), did not support Elec. Co., 115 F.3d 400 (6th Cir. 1997); GINA. the proposition that the term Cross v. Alabama, 49 F.3d 1490 (11th ‘‘employee’’ also includes former Cir. 1995); Grant v. Lone Star Co., 21 Section 1635.3 Definitions Specific to employees. Chamber/SHRM contends F.3d 649 (5th Cir. 1994). Therefore, it is GINA that Robinson decided only that the not necessary to make this point in the term ‘‘employee’’ as used in Title VII’s regulation. GINA includes six terms not found in anti-retaliation provision, 42 U.S.C. The final regulation includes a any of the other employment 2000e–3(a), applied to former definition of ‘‘covered entity.’’ It uses the discrimination statutes that the employees, not whether ‘‘employee’’ as term to refer to all entities subject to Commission enforces. This final used in section 701(f) of Title VII Title II of GINA: The different categories regulation provides some additional applied to former employees. In of GINA-covered employers (private guidance regarding these terms. One Robinson, the Supreme Court observed sector, state and local government, comment said that many of the that the definition of ‘‘employee’’ in Congressional employers, executive definitions in the NPRM were too section 701(f), which is the basis for the branch, federal/civil service), as well as difficult to understand without term ‘‘employee’’ in GINA, ‘‘lacks any employment agencies, labor scientific knowledge. See Comment of temporal qualifier and is consistent with organizations, and joint labor- Federal Deposit Insurance Corporation either current or past employment.’’ management training and (FDIC). As noted above, in developing Robinson, 519 U.S. at 342. The apprenticeship programs. By using the these definitions, EEOC coordinated Commission has read Robinson as term ‘‘covered entity’’ to describe the closely with NHGRI. We also were supporting its well-established position requirements or prohibited practices careful to track closely the language of that ‘‘[f]ormer employees are protected applicable to all entities subject to Title Title II itself where possible to avoid by the EEO statutes when they are II of GINA, the final regulation avoids any unintended consequences that subjected to discrimination arising from some of the repetition found in sections might result from attempting to the former employment relationship.’’ 202–205 of the statute. This use of the paraphrase or simplify scientifically See EEOC’s Compliance Manual Section term ‘‘covered entity’’ as a simplifying technical language. However, we have 2 on Threshold Issues at § 2–III.A.2. & shorthand to aid in the readability of the added a number of examples to the n. 79 (available at http://www.eeoc.gov/ final regulation is similar to EEOC’s use regulation itself that will further clarify policy/docs/threshold.html#2-III-A-2) of ‘‘covered entity’’ in the regulation the meanings of some of these terms. (citing to Robinson). An example under implementing Title I of the Americans GINA would be a situation in which a with Disabilities Act, 42 U.S.C. 12111 Section 1635.3(a) Family Member former employer disclosed to a (ADA). One comment urged the The statute defines an individual’s prospective employer an individual’s Commission not to use the term ‘‘family member’’ both by reference to genetic information. Accordingly, the ‘‘covered entity’’ because of possible ERISA section 701(f)(2) and as final regulation makes clear that the confusion with the same term in extending to the individual’s fourth term ‘‘employee’’ includes an applicant HIPAA. See Comment of American degree relatives. First, section 201(3)(a) and a former employee. Medical Association (AMA). We do not of GINA states that family member is ‘‘ The final regulation provides a believe that use of the term covered defined as ‘‘a dependent (as that term is concise explanation of the employers entity’’ in this regulation will cause used for purposes of section [701(f)(2) of covered by GINA, rather than following confusion, as most of the entities subject ERISA])’’ of the individual.5 For the statute’s example of providing to Title II are not HIPAA covered purposes of Title II, the Commission has citations to definitions of ‘‘employer’’ entities and those that are should be determined that the dependents covered provided by other laws. For example, able to distinguish between their roles by Title II are limited to persons who the final regulation explains that Indian as HIPAA covered entities and as are or become related to an individual tribes, as well as bona fide private clubs covered entities subject to Title II of (other than labor organizations) that are GINA. We note that HIPAA covered exempt from taxation under section entities do not appear to have 5 The Commission’s definition of ‘‘dependent’’ is solely for purposes of interpreting Title II of GINA, 501(c) of the Internal Revenue Code of experienced confusion from use of the and is not relevant to interpreting the term 1986, are not employers, rather than term ‘‘covered entities’’ in Title I of the ‘‘dependent’’ under Title I of GINA or under section merely referring to Title VII’s exclusion ADA, even though the ADA, like 701(f)(2) of ERISA and the parallel provisions of the of these groups from the definition of HIPAA, places limitations on the Public Health Service Act and the Internal Revenue Code. The Commission believes its interpretation of ‘‘employer.’’ See 42 U.S.C. 2000e(b)(1) acquisition and disclosure of medical the term ‘‘family member,’’ particularly the way in and (2). information. which GINA’s reference to section 701(f)(2) of One commenter asked that the final The final regulation says that the term ERISA relates to that term, is consistent with the regulation state that there is no ‘‘covered entity’’ includes an ‘‘employing plain language of both section 701(f)(2) and Title II ’’ ‘‘ ’’ of GINA, furthers Congress’s intent to prohibit individual liability for violations of office. The term employing office, genetic discrimination in the employment context, GINA. See Comment of TOC referenced in sections 201 and 207 of and provides covered entities with clear standards Management Services (TOC). As the GINA, is used in the Congressional governing compliance with the law.

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through marriage, birth, adoption, or among first-degree relatives.7 See medical history’’ to prevent a covered placement for adoption.6 Comment of GPPC. entity from making decisions about an Groups who represent employers The Commission declines, however, individual’s health based on the thought that persons who become to expand the degree of relationship of existence of an inheritable disease of a family members beyond the fourth dependents by adoption or placement family member. See also id. at 28 degree as one comment suggested we for adoption should not be considered (reiterating the Title I discussion of should do. See Comment of Members of family members, because genetic family medical history in the Report the Personal Genetics Education Project 8 information about them would not section addressing Title II). (PGEP). Whether or not genetic Citing this legislative history, some indicate whether an individual information about an individual’s employer groups urged that we include protected by GINA might acquire a relatives beyond the fourth degree of the word ‘‘inheritable’’ before the words disease or disorder. See Comments of relationship has predictive value with ‘‘disease or disorder’’ in the regulation’s Illinois Chamber of Commerce (ICC) and respect to the individual, the language definition of ‘‘family medical history,’’ Chamber/SHRM. However, GINA’s of the statute on which the regulation is arguing that Congress did not intend express reference to section 701(f)(2) of patterned does not permit such an that GINA apply to conditions such as ERISA and section 701(f)(2)’s explicit expansion of the definition of ‘‘family the common cold or the flu. See reference to dependents by adoption or member.’’ In fact, GINA’s definition of Comments of Chamber/SHRM and ICC. placement for adoption makes it ‘‘family member’’ is already broader than For three reasons, the Commission has absolutely clear that Congress intended that term is understood in the practice decided not to make this change in the to include such persons in GINA’s of medicine. As discussed in the final rule. First, the regulation’s definition of ‘‘family member.’’ following section, a typical family language is consistent with the plain Moreover, the acquisition of information medical history used for the purposes of language of the statute, which also does about the occurrence of a disease or diagnosis and treatment includes not include the word ‘‘inheritable.’’ disorder in an applicant’s or employee’s information about an individual’s first- Second, given the rapidly-developing adopted child could certainly result in degree, second-degree, and third-degree field of genetics, we believe that the type of discrimination GINA was relatives. requiring Title II covered entities or intended to prohibit. For example, an EEOC investigators to determine employer might use information it Section 1635.3(b) Family Medical whether a disease or disorder in family obtains about the current health status History members of an individual is of an adopted child to discriminate The final regulation includes a ‘‘inheritable’’ or has a genetic basis against an employee because of definition of ‘‘family medical history’’ would present significant compliance concerns over potential health care because it is a term used in the statute’s and enforcement problems. Finally, the costs, including increased health discussion of prohibited employment Commission doubts that questions about insurance rates, associated with the practices, but it is not specifically whether a family member has a cold, the family member’s medical condition. See defined by the statute. In the legislative flu, or similar conditions will often S. Rep. No. 110–48 at 28 (indicating that history of GINA, Congress stated that result in charges being filed under spouses and adopted children were the term ‘‘family medical history GINA. included in the definition of family [should] be understood as it is used by One commenter also suggested that member for this exact reason). medical professionals when treating or we clarify that medical information Second, GINA includes as family examining patients.’’ S. Rep. No. 110– obtained from one employee will not be members persons related from the first 48, at 16. In particular, the Senate considered family medical history of a to the fourth degree of an individual. Report notes as follows: family member who also works for the The degree of relationship reflects the [T]he American Medical Association employer. See Comment of Chamber/ average proportion of genes in common (AMA) has developed an adult family history SHRM. This commenter is apparently between two individuals. The GINA form as a tool to aid the physician and concerned that an employer will be provisions thus include the individual’s patient to rule out a condition that may have liable for a violation of GINA if it children, siblings, and parents (first developed later in life, which may or may not requests information about a manifested degree), grandparents, grandchildren, have been inherited. This form requests disease or disorder of an employee information about the patient’s brothers, uncles, aunts, nephews, nieces, and whose family member also works for the sisters, and their children, biological mother, employer. The Commission recognizes half-siblings (second degree), great- the mother’s brothers, sisters, and their grandparents, great grandchildren, great children, maternal grandfather, maternal the problem that this commenter is uncles, great aunts, and first cousins grandmother, biological father, the father’s trying to avoid, but does not agree with (third degree), and great-great brothers, sisters, and their children, paternal the proposed solution. We disagree that grandparents and first cousins once grandfather and paternal grandmother. The the first employee’s medical information removed (the children of a first cousin) committee expects that the use of ‘‘family is not family medical history as to the history’’ in this bill will evolve with the (fourth degree). The inclusion of half- second employee. An employer who medical profession and the tools it develops learns that one employee has a siblings among second-degree relatives in this area. responds to a comment we received to manifested disease or disorder would be ‘‘ the proposed rule which said that we Id. The Report further notes that a in possession of family medical history had incorrectly listed half-siblings family medical history could be used as about a second employee who is a a surrogate for a genetic trait,’’ id., and that the definition of ‘‘genetic 8 Since 2004 the U.S. Surgeon General’s Family 6 ‘‘Placement for adoption’’ or being placed for information’’ had to include ‘‘family History Initiative has actively promoted the adoption means the assumption and retention of a collection and use of family history information in legal obligation for total or partial support of a child clinical settings, including featuring a bilingual by a person with whom the child has been placed 7 This approach is different from the approach Web-based tool through which the user creates and in anticipation of the child’s adoption. The child’s taken in regulations implementing Title I of GINA. organizes his/her family health history (http:// placement for adoption with such person ends See GINA Title I regulations at 26 CFR 54.9802– www.hhs.gov/familyhistory/). GINA is not intended upon the termination of such legal obligation. See 3T(a)(2)(ii), 29 CFR 2590.702–1(a)(2)(ii) and 45 CFR to limit the collection of family medical history by 29 CFR 2590.701–2 (the definitions for part 7 of 146.122(a)(2)(ii), which were published in the health care professionals for diagnostic or treatment ERISA) Federal Register on October 7, 2009 at 74 FR 51664. purposes.

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family member as defined by GINA. final rule also says that information disease or condition. For example, tests Likewise, an employer who learns the about race and ethnicity that is not to determine whether an individual results of one employee’s genetic test or derived from a genetic test is not genetic carries the genetic variant evidencing a learns that the employee has sought or information. See Comment of ACLU. predisposition to breast cancer— received genetic services would possess whether the individual has the BRCA1 Section 1635.3(d) Genetic Monitoring genetic information about the employee or BRCA2 variant—or to determine who is a family member. (See Genetic monitoring is defined in whether an individual has a genetic discussion of the definition of ‘‘genetic GINA section 201(5) as the ‘‘periodic variant associated with hereditary information,’’ below.) We do not think examination of employees to evaluate nonpolyposis colorectal cancer are Congress could have intended that an acquired modifications to their genetic genetic tests. It is important to note, employee not be protected from the material * * * caused by the toxic however, that the presence of a genetic discriminatory use or the disclosure of substances they use or are exposed to in variant relating to a predisposition to his or her genetic information just performing their jobs.’’ The final disease is not evidence of, and does not because the employer obtained it from regulation uses language similar to that equate to, disease. Similarly, a positive a family member who was also an found in the statute in defining the test for a genetic variant as strongly employee. term. As more fully described in penetrant as Huntington’s Disease does However, we do agree with the 1635.8(b)(5) and its accompanying not equate to the presence of the comment to the extent it seeks to limit preamble discussion, a covered entity disease, even though development of liability under GINA for the acquisition may acquire genetic information as part the disease is almost inevitable. of information about an employee’s of genetic monitoring that is either The Commission invited comments manifested condition. Although required by law or voluntarily on the scope of the term ‘‘genetic test.’’ acquisition of information about undertaken, provided the entity In response, we received comments manifested conditions is limited under complies strictly with certain generally agreeing with how the other laws such as the ADA, it is conditions. Commission characterized certain kinds permissible under GINA, even where an of tests in the preamble and text of the Section 1635.3(e) Genetic Services employee’s family member works for proposed rule. Several comments asked the same employer. We have added a The term ‘‘genetic services’’ is defined that we place examples from the new subsection to § 1635.8 to clarify in GINA section 201(6). It includes preamble to the proposed rule in the this point, and to make the related point genetic tests, genetic counseling, and text of the regulation itself, and we have that an employer will not violate GINA’s genetic education. Making an done so. See Comments of the Equal provisions prohibiting the acquisition of employment decision based on Employment Advisory Council (EEAC), an employee’s genetic information when knowledge that an individual has CGF, Genetic Alliance, GPPC and TOC. it requests genetic information or received genetic services violates GINA, Thus, the regulation says that tests for information about a manifested disease even if the covered entity is unaware of infectious and communicable diseases or disorder from an employee’s family the specific nature of the genetic that may be transmitted through food member to whom health or genetic services received or the specific handling, complete blood counts, services are being provided on a information exchanged in the course of cholesterol tests, and liver-function tests voluntary basis. (See discussion of providing them. are not genetic tests. To the proposed § 1635.8(c), below.) A number of comments asked that the rule’s examples of genetic tests, we have final rule offer additional examples of added a number of others suggested by Section 1635.3(c) Genetic Information genetic services that emphasize the several commenters, including carrier GINA section 201(4) and the term’s breadth, including genetic screenings of adults to determine the regulation define genetic information to education before and after testing and risk of conditions such as cystic fibrosis, include information from genetic tests, preventive therapies that an individual sickle cell anemia, spinal muscular the genetic tests of family members, and might undergo in response to a genetic atrophy, and fragile X syndrome in family medical history. Genetic test to reduce or eliminate the risk of future offspring; amniocentesis and information also includes information acquiring a condition in the future. See other evaluations used to determine the about an individual’s or family Comments of AMA, CGF, Genetic presence of genetic abnormalities in a member’s request for or receipt of Alliance, and GPPC. We have not made fetus; newborn screening tests for genetic services. GINA section 209(b) any additions to the definition in the conditions such as PKU, which may and the regulation add that the term final regulation. The definition of allow preventive treatment to begin genetic information includes genetic genetic services provided in the before the disease manifests; DNA information of a fetus carried by an proposed rule encompasses genetic testing that reveals family relationships individual or an individual’s family education, whether it is offered before, (e.g., paternity tests); and DNA testing member or an embryo lawfully held by after, or unrelated to genetic testing. that determines the presence of genetic an individual or family member Moreover, we have determined that the markers associated with ancestry. See receiving assistive reproductive statutory definition of genetic services Comments of CGF, Genetic Alliance, services. See Comment of FDIC (noting was not intended to encompass the and GPPC. that the preamble to the proposed rule types of clinical services mentioned by Two commenters requested that the cited to the wrong section of GINA these commenters. preamble and regulation refrain from when discussing the genetic information listing specific tests that are excluded of a fetus or embryo). The statute and Section 1635.3(f) Genetic Test from the definition of genetic test. One regulation exclude from coverage GINA section 201(7) defines ‘‘genetic argued that the science of genetics is information about an individual’s or test’’ to mean the ‘‘analysis of human constantly developing and that it is family member’s age or gender. In DNA, RNA, chromosomes, proteins, or therefore shortsighted to specify tests response to a comment, and mindful metabolites that detects genotypes, that are not genetic in nature. See that many employers routinely request mutations, or chromosomal changes.’’ Comment of National Counsel of EEOC such information on a voluntary basis to Genetic tests are used to detect gene Locals no. 216, American Federation of comply with their EEO obligations, the variants associated with a specific Government Employees, AFL–CIO

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(AFGE). Although we acknowledge this defined ‘‘manifestation or manifested’’ to genetic variant is 100 percent predictive concern, excluding illustrative examples mean, with respect to a disease, for development of disease, the presence of what does not meet this definition disorder, or pathological condition: of the variant does not by itself equal would only serve to confuse those that an individual has been or could diagnosis of the disease. attempting to understand the bounds of reasonably be diagnosed with the disease, Two comments asked the Commission the law. disorder, or pathological condition by a to delete from § 1635.3(g) the concept Another comment argued that while health care professional with appropriate that a disease, disorder, or pathological the excluded tests are not genetic tests, training and expertise in the field of condition is not manifested if it is based it is still important that the results of medicine involved. For purposes of this part, ‘‘principally on genetic information or tests that are not genetic tests be kept a disease, disorder, or pathological condition on the results of one or more genetic confidential and not be used as a basis is not manifested if the diagnosis is based tests.’’ See Comments of America’s principally on genetic information or on the for discrimination. See Comment of results of one or more genetic tests. Health Insurance Plans (AHIP) and Disability Rights Legal Center (DRLC). Chamber/SHRM; see also Comments of Concerns about the discriminatory use The final rule deletes the words ‘‘or on EEAC and SBA (raising similar of medical tests that are not genetic are the results of one or more genetic tests,’’ concern). Although the Commission has addressed by the ADA, which limits the which are unnecessary, given that the deleted reference to ‘‘the results of one use of medical examinations and term ‘‘genetic information’’ already or more genetic tests’’ as explained prohibits the use of medical and non- includes the results of genetic tests. The above, the final rule still includes the medical tests that screen out or tend to definition of the term ‘‘manifested’’ is basic concept that a condition is not screen out an individual with a consistent both with the definition of manifest if it is based principally on disability or a class of individuals with genetic test found in Title I, which genetic information. We agree, however, disabilities from employment, unless permits use of certain diagnostic tests in that a clarification is needed to address the test is shown to be job-related for the order to determine whether an what we believe to be the central position in question and consistent with individual has a current—or manifest— concern of these commenters, i.e., that business necessity. See 29 CFR 1630.10. disease, disorder, or condition, see S. the language at issue extends the Section 1635.11(a) of the final rule and Rep. No. 110–48. at 16, and with the protections of GINA to people with the accompanying preamble discussion notion, discussed above in conjunction manifested conditions when genetic make it clear that Title II of GINA does with the definition of genetic test information played a role in diagnosing not limit other laws, including the ADA, (§ 1635.3(f)), that the mere presence of a them. We therefore note that where that protect individuals on the basis of genetic variant does not mean that an diagnosis of a disease, disorder, or disability. individual has an associated condition, pathological conditions depends on The Title II definition of ‘‘genetic test’’ disease, or disorder. The presence of a both the presence of signs and differs from the definition of this term genetic variant alone does not constitute symptoms and genetic information, the in Title I. Specifically, the Title II a diagnosis; other signs or symptoms disease, disorder, or pathological definition does not have the express must be present. This interpretation is condition will be considered exclusion that Title I does for ‘‘an consistent with current ERISA manifested. The fact that an individual analysis of proteins or metabolites that regulations which prohibit a group has the diagnosed disease, disorder, or is directly related to a manifested health plan, and a health insurance pathological condition will not be disease, disorder, or pathological issuer offering group health insurance considered genetic information about condition that could reasonably be coverage, from imposing a preexisting the individual; nor will information detected by a health care professional condition exclusion relating to a about the signs or symptoms the with appropriate training and expertise condition based solely on genetic individual has. Such information, in the field of medicine involved.’’ GINA information. Thus, for example, a however, is still subject to other laws 101(d), 29 U.S.C. 1191b–(d)(7)(B). woman who has group health plan regulating the acquisition and use of However, as explained below, the coverage and has the BRCA1 gene medical information, including Title I of Commission borrowed from Title I’s use variant may not be subject to a the ADA. See 42 U.S.C. 12112(d). of the term ‘‘manifest’’ in the definition preexisting condition exclusion merely Moreover, information about any of ‘‘genetic test’’ in formulating a because she has the variant. Id. Example genetic test or family medical history definition of ‘‘manifested or at 29 CFR 2590.701–3(b)(6)(ii). used as part of the diagnosis of the manifestation.’’ However, if an individual is diagnosed disease, disorder, or pathological with a condition, even if the condition condition is genetic information subject Section 1635.3(g) Manifestation or relates to genetic information—for to Title II of GINA and this regulation. Manifested example, breast cancer stemming from Several commenters requested that The final rule includes a definition of the BRCA1 gene variant—the plan may the final regulation clarify that the the term ‘‘manifestation or manifested’’ impose a preexisting condition genetic information of an individual because sections 201(4)(A)(iii) and 210 exclusion with respect to the condition with a manifested disease is still use the terms. Specifically, GINA as of the date the disease was diagnosed, protected under GINA, citing the section 201(4)(A)(iii), defining ‘‘genetic subject to other HIPAA portability example of an individual with breast information,’’ refers to the requirements. See 29 CFR 2590.701– cancer who undergoes a genetic test and ‘‘manifestation of a disease or disorder 3(b)(6)(i). learns that she tests positive for a BRCA in family members’’ of an individual, Similarly, Huntington’s Disease (HD) mutation, which increases one’s risk for and section 210, entitled ‘‘Medical is an example of a genetic disease that developing ovarian cancer as well as information that is not genetic is not diagnosed solely through use of breast cancer. See Comments of CGF, information,’’ refers to a ‘‘manifested a genetic test; other signs and symptoms Genetic Alliance, and GPPC. These disease, disorder, or pathological must be present. The presence of the commenters requested that we make condition.’’ genetic variant virtually guarantees the clear that discriminating against this The definition of ‘‘manifestation or later development of disease, but the individual due to the presence of the manifested’’ was developed with the disease does not usually manifest until genetic variant is a violation of GINA assistance of NHGRI. The proposed rule adulthood. Therefore, even when a despite the fact that she also has a

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manifested disease caused by the establishment of this Commission, candidates with a family medical variant. We note that § 1635.12(b) makes which is scheduled to begin its work on history for certain conditions would it clear that genetic information of an May 21, 2014. violate GINA. An employment agency individual with a manifested disease is In response to a comment, we clarify that acted pursuant to the employer’s protected genetic information under that a covered entity will not be deemed direction would be liable for violating GINA and that discriminating against to have violated § 1635.5 if it limits or GINA either directly, because the law someone based on this information is restricts an employee’s job duties based applies to employment agencies, or as prohibited. on genetic information because it was an agent of the employer. Similarly, an required to do so by a law or regulation employer would violate GINA if it used Section 1635.4 Prohibited Practices— mandating genetic monitoring such as a labor organization’s hiring hall to In General regulations administered by the obtain genetic information in making In describing the prohibited practices Occupational and Safety Health job referrals, and the labor union would under GINA Title II, Congress adopted Administration (OSHA). See Comment be liable under GINA either directly or language similar to that used in Title VII of EEAC (requesting clarification of this as the employer’s agent. The final rule and other equal employment statutes, point); see also 1635.8(b)(5) (concerning modifies the language of § 1635.6 of the evincing its intent to prohibit voluntary genetic monitoring and proposed rule slightly so that it leaves discrimination with respect to a wide monitoring pursuant to state or federal no doubt that no GINA covered entity range of covered entity practices, law) and 1635.11(a) below (GINA does may cause another covered entity to including hiring, promotion and not limit the statutory or regulatory discriminate on the basis of genetic demotion, seniority, discipline, authority of OSHA, the Mine Safety and information. termination, compensation, and the Health Administration or other terms, conditions, and privileges of workplace health and safety laws and Section 1635.7 Retaliation employment. In response to a comment, regulations.) The final regulation reiterates the we further note that the broad language statutory prohibition against retaliation Congress adopted in describing the Section 1635.6 Causing a Covered where an individual opposes any act practices prohibited by Title II makes Entity To Discriminate made unlawful by GINA, files a charge clear that claims of harassment on the GINA sections 203(a)(3), 204(a)(3), of discrimination or assists another in basis of genetic information are and 205(a)(3) expressly bar employment doing so, or gives testimony in cognizable. See Comment of Disability agencies, labor organizations, and connection with a charge. Because Rights Legal Center (DLRC). In separate apprenticeship or other training Congress adopted in GINA the language GINA sections 203–205, the statute programs from causing an employer to of the anti-retaliation provision in Title notes additional covered actions of discriminate on the basis of genetic VII of the Civil Rights Act of 1964, the employment agencies (failing or information. These sections recognize Commission believes that Congress refusing to refer for employment), labor that employers engage in most of the intended the standard for determining unions (excluding or expelling from employment-related activities that the what constitutes retaliatory conduct membership), and training, retraining, Act reaches. Other covered entities, under GINA to be the same as the and apprenticeship programs (denying however, might engage in conduct that standard under Title VII, as announced admission to or employment in such could cause an employer to by the Supreme Court in Burlington programs). discriminate. For example, an Northern & Santa Fe Ry. v. White, 548 employment agency or union might U.S. 53 (2006). In that case, the Court Section 1635.5 Limiting, Segregating, share or attempt to share genetic held that Title VII’s anti-retaliation and Classifying information it obtained (whether legally provision protects an individual from The final regulation reiterates the or not) about a client or member with conduct, whether related to statutory language barring actions by an employer. Such conduct would employment or not, that a reasonable covered entities that may limit, violate sections 203(a)(3) and 204(a)(3), person would have found ‘‘materially segregate, or classify employees because regardless of the intent of the adverse,’’ meaning that the action ‘‘well of genetic information. For example, an employment agency or union in sharing might have ‘dissuaded a reasonable employer could not reassign someone the information. See Comment of DLRC worker from making or supporting a whom it learned had a family medical (requesting clarification on this point). charge of discrimination.’ ’’ Id. at 57–58 history of heart disease from a job it Although section 202 does not (citations omitted). believed would be too stressful and include a similar provision explicitly might eventually lead to heart-related prohibiting an employer from causing Section 1635.8 Acquisition of Genetic problems for the employee. This section another covered entity to discriminate, Information also makes clear that although the it is well settled under Title VII that the Each of the discrete GINA sections language of the statute specifically definition of employer includes addressing the conduct of employers, prohibits actions that have the ‘‘purpose employers’ agents under common law employment agencies, labor or effect’’ of limiting, segregating, or agency principles. See Vinson v. Meritor organizations, and apprenticeship or classifying individuals on the basis of Savings Bank, 477 U.S. 57, 72 (1986). other training programs includes a genetic information, neither the statute Because GINA incorporates Title VII’s section prohibiting covered entities nor the final regulation creates a cause definition of employer, including the from requesting genetic information of action for disparate impact. Section application of common law agency from applicants, employees, or other 208 of GINA specifically prohibits such principles, GINA would bar an individuals; from requiring that actions, and establishes the Genetic employer from engaging in actions that applicants or employees provide genetic Nondiscrimination Study Commission, would cause another covered entity information; or from purchasing genetic to examine ‘‘the developing science of acting as its agent to discriminate. For information about an applicant or genetics’’ and recommend to Congress example, an employer that directed an employee. Each section also includes ‘‘whether to provide a disparate impact employment agency to ask applicants the same five exceptions. Sections 202, cause of action under this Act.’’ The for genetic information or told the covering employers, and 205, covering final regulation does not address the employment agency not to send it joint labor-management training and

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apprenticeship programs, include a individual’s current health status (e.g., particularly in response to 1635.8(b)(1), sixth exception. The proposed for the purpose of making a reasonable (2) and (4). regulation addressed each of the accommodation) affirmatively warn the Inadvertently Requesting or Requiring exceptions, as does the final regulation. person providing the information not to Genetic Information: First, as noted in Covered entities are cautioned, include genetic information, since the proposed rule, a covered entity that however, that the use of genetic acquisition of genetic information in the ‘‘inadvertently requests or requires information to discriminate, no matter form of family medical history would be family medical history’’ from an how that information may have been likely in the absence of a warning. See individual does not violate GINA. acquired, is prohibited. Comments of ACLU, the American Congress intended this exception to Concerning the general prohibition on Medical Association (AMA), CGF, address what it called the ‘‘ ‘water cooler acquiring genetic information, two Genetic Alliance, GPPC, and the problem’ in which an employer commenters noted that the regulatory Leadership Conference on Civil Rights unwittingly receives otherwise language of 1635.8(a) did not track the (LCCR). Similarly, most of these prohibited genetic information in the statutory language in that it failed to commenters said that the exception for form of family medical history through indicate that the prohibition applies to acquisition of genetic information from casual conversations with an employee’’ the genetic information of family sources that are commercially and or by overhearing conversations among members of individuals, as well as to publicly available should not apply to co-workers. S. Rep. No. 110–48, at 29; that of the individuals themselves. See sources that are likely to, or present a see also H.R. Comm. on Education and Comment of the American ‘‘heightened risk’’ of, containing genetic Labor, Genetic Information Psychological Association (APA) and information, and one commenter Nondiscrimination Act of 2007, H.R. FDIC. Although we believe the specifically asked that the final rule Rep. No. 110–28 part I, 37–38 (2008) substance of the regulatory language is prohibit Internet searches that include (H.R. Rep. No. 110–28, part I). Congress correct, in that the genetic information an individual’s name and a particular did not want casual conversation among of an individual includes the genetic genetic marker. See Comments of LCCR. co-workers regarding health to trigger information of that individual’s family The Commission acknowledges all federal litigation whenever someone members, we agree that it would be best these concerns and, for purposes of mentioned something that might to follow the statutory language of this GINA Title II, has added language to constitute protected family medical prohibition and have altered 1635.8(a) 1635.8(a) as follows: ‘‘ ‘Request’ includes history. The Commission’s proposed accordingly. conducting an Internet search on an regulation therefore noted that a covered Another comment argued that a individual in a way that is likely to entity inadvertently acquires family covered entity violates GINA’s result in a covered entity obtaining medical history where a manager or provisions prohibiting the acquisition of supervisor overhears a conversation genetic information; actively listening to genetic information only when it among co-workers that includes third-party conversations or searching undertakes the purposeful act of information about family medical an individual’s personal effects for the requesting, requiring, or purchasing history (e.g., a conversation in which purpose of obtaining genetic genetic information. See Comment of one employee tells another that her information; and making requests for Chamber/SHRM. It was improper, this father has Alzheimer’s disease). comment reasoned, for the Commission information about an individual’s Although the language of this to have included examples of ‘‘passive current health status in a way that is exception in GINA specifically refers to acquisition’’ in 1635.8(b)(1) (governing likely to result in a covered entity family medical history, the Commission inadvertent acquisition of genetic obtaining genetic information.’’ believes that it is consistent with information) and 1635.8(b)(4) We think it is equally clear that Congress’s intent to extend the (concerning acquisition of genetic Congress intended certain ‘‘passive exception to any genetic information information through sources that are acquisitions’’ of genetic information to that an employer inadvertently acquires. commercially and publicly available). be exceptions to the rule prohibiting The Commission does not believe, for However, other commenters read the acquisition, rather than being wholly example, that Congress intended that an prohibition on acquisition more outside the prohibition. The examples, employer would be liable for the broadly, noting their view that GINA particularly those in § 1635.8(b)(1) and acquisition of genetic information restricts ‘‘deliberate acts that result in (4), are similar to the so-called ‘‘water because it overhears a conversation in the acquisition of genetic information,’’ cooler’’ example that Congress thought which one employee tells another that not just purposefully requesting, should be an exception to the general her mother had a genetic test to requiring, or purchasing genetic prohibition against requesting, determine whether she was at increased information. See Comments of ACLU, requiring, or purchasing genetic risk of getting breast cancer. If the CGF, Genetic Alliance, and GPPC. A information. See S. Rep. No. 110–48, at exception were read to cover only similar construction of the acquisition 29 (‘‘[t]he committee recognizes that family medical history, this would prohibition underlay suggestions for conversations among coworkers about violate GINA, even though it occurred changes to the portion of the rule the health of a family member are inadvertently, because information that concerning inadvertent acquisition of common and intends to prevent such a family member has had a genetic test, genetic information. Several normal interaction from becoming the while genetic information, is not commenters said that covered entities basis of litigation’’). We therefore retain information about the occurrence of a that make inquiries or engage in actions the examples offered in the preamble to disease or disorder in a family member. reasonably likely to result in the the proposed rule, as we believe that Although we received numerous acquisition of genetic information they provide useful guidance. See comments in regard to 1635.8(b)(1), no should not be able to avail themselves Comment of TOC (encouraging EEOC to commenter expressed disagreement of the exceptions in 1635.8(b)(1) or retain examples). with the decision to extend the 1635.8(b)(4). Thus, for example, as We now turn to a discussion of the exception to all genetic information that discussed below, commenters asked that specific exceptions described in a covered entity inadvertently acquires. the Commission require that covered 1635.8(b). We received a number of See, e.g., Comment of GPPC (discussing entities requesting information about an comments concerning these exceptions, the need for a restrictive view of this

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exception, but expressing agreement exhaustive. See Comments of ICC and covered entities will obtain a great deal that it was intended to extend to all Chamber/SHRM. The FDIC made a of genetic information through general genetic information and not just family similar point when it requested that the requests for medical information if they medical history). rule state that this exception applies to are not required to affirmatively indicate The Commission also understands questions by an employer ‘‘not likely to that genetic information should not be this exception to apply in any situation elicit genetic information’’ but does not provided. See Comments of the ACLU, in which an employer might apply to questions ‘‘likely to elicit AMA, CGF, Genetic Alliance, GPPC, inadvertently acquire genetic genetic information.’’ See Comment of and LCCR. See also Comments of information, not just to situations FDIC. Burton Blatt Institute (noting that the involving conversations between co- These comments make apparent the exception’s application to acquisition workers that are overheard. The need for greater clarity concerning this through legitimate medical information proposed regulation provided an exception. We include in the final requests should be limited because illustrative list of examples, reiterated regulation itself the examples from the doctors will not know to exclude here, where we believe Congress preamble to the proposed rule that genetic information) and World Privacy intended the exception to apply. Thus, illustrate how this exception applies Forum (requesting further limitations on for example, the exception applies when and provide an additional example both this exception). Employer groups raised the covered entity, acting through a here and in the final regulation at the related point that human resource supervisor or other official, receives 1635.8(b)(1)(ii)(B). The additional offices do not have control over what is family medical history directly from an example is as follows: A covered entity received from health care providers in individual following a general inquiry that inadvertently acquires genetic response to requests for medical about the individual’s health (e.g., ‘‘How information about someone’s family information and that covered entities are you?’’ or ‘‘Did they catch it early?’’ member in response to a general should not be subjected to liability if asked of an employee who was just question about the family member’s health care providers provide genetic diagnosed with cancer) or a question as health may not then ask follow-up information that was not requested. See to whether the individual has a questions that are probing in nature, Comments of Chamber/SHRM, EEAC manifested condition.9 Similarly, a such as whether other family members and the International Public casual question between colleagues, or also have the condition, or whether the Management Association for Human between a supervisor and subordinate, individual has been tested for the Resources, the League of Minnesota concerning the general well-being of a condition. Cities and the International Municipal family member would not violate GINA We also include an additional Lawyers Association (IPMA/IMLA). (e.g., ‘‘How’s your son feeling today?’’, example here and in the final regulation In response to these comments and to ‘‘Did they catch it early?’’ asked of an at 1635.8(b)(1)(ii)(D) to clarify that the facilitate compliance with the law, we employee whose family member was inadvertent acquisition exception have added language to the final rule just diagnosed with cancer, or ‘‘Will applies not only to interactions within indicating that when a covered entity your daughter be OK?’’), nor would the the workplace during which a covered warns anyone from whom it requests receipt of genetic information that was entity unwittingly receives genetic health-related information not to not solicited or sought by the employer information, but also to interactions that provide genetic information, the ‘‘ ’’ (e.g., where a manager or supervisor take place in the virtual world, i.e., covered entity may take advantage of receives an unsolicited email from a co- through a social media platform from the exception in 1635.8(b)(1) if it which a covered entity unwittingly worker about the health of an nevertheless receives genetic receives genetic information. In other employee’s family member). information. This ‘‘safe harbor’’ in A number of commenters raised words, this exception applies where a 1635.8(b)(1)(i)(B) provides that any concerns about the exact parameters of manager, supervisor, union receipt of genetic information in this exception. Civil rights groups and representative, or employment agency response to a lawful request for medical organizations promoting genetic representative inadvertently learns information will be deemed inadvertent research asked that the EEOC clarify genetic information from a social media and not in violation of GINA if the platform which he or she was given that pointed questions or other attempts request contained such a warning. permission to access by the creator of The final rule includes the following to gather genetic information by, for the profile at issue (e.g., where a language that a covered entity may use example, intentionally eavesdropping supervisor and employee are connected to provide such notice: ‘‘The Genetic on private conversations or asking on a social networking site and the Information Nondiscrimination Act of highly specific follow-up questions employee provides family medical 2008 (GINA) prohibits employers and when an employee mentions that a history on his page). other entities covered by GINA Title II family member is ill, do not fall within We further note that the examples from requesting or requiring genetic the bounds of this exception. See provided in this preamble and the information of employees or their family Comments of ACLU, CGF, the Genetic regulation are non-exhaustive and that members. In order to comply with this Alliance, GPPC, and LCCR. The Illinois other situations in which a covered law, we are asking that you not provide Chamber of Commerce (ICC) requested entity inadvertently acquires genetic any genetic information when that the regulation specifically state that information are covered by this responding to this request for medical there is no violation of the prohibition exception as long as the requirements information. ‘Genetic information,’ as against acquisition unless the employer provided in the regulation are met. defined by GINA, includes an purposefully acquires genetic We received a significant number of individual’s family medical history, the information and both ICC and Chamber/ comments expressing concern about results of an individual’s or family SHRM requested that it be made clear GINA’s application to a covered entity’s member’s genetic tests, the fact that an that the examples provided are not request for medical information that individual or an individual’s family results in the receipt of genetic member sought or received genetic 9 When asking questions likely to elicit information about a disability, covered entities information that was not requested. services, and genetic information of a must, of course, also abide by the requirements of Civil rights groups, groups promoting fetus carried by an individual or an the ADA. genetic research, and others argued that individual’s family member or an

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embryo lawfully held by an individual reasonable accommodation under the genetic information in either of these or family member receiving assistive ADA or state or local law, the request situations.10 Acquisition of genetic reproductive services.’’ Alternative for medical documentation can be made information in these circumstances will language may also be used, as long as only when the disability and/or the be considered inadvertent if the covered individuals and health care providers need for accommodation is not obvious. entity affirmatively warns individuals are informed that genetic information In this situation, the employer may ask and health care providers from whom should not be provided. the individual for reasonable they are seeking medical documentation Although one commenter expressed documentation about his/her disability not to provide genetic information, or, concern that giving notice would and/or need for accommodation. in the absence of such a warning, where impose an unnecessary burden on small Reasonable documentation means that the request for medical information was businesses, we note that the warning the employer may require only the not likely to result in the acquisition of may be conveyed verbally if the request documentation that is needed to genetic information.11 In response to for medical information itself is also establish that a person has a disability two comments concerning the need for verbal. See Comment of the National within the meaning of the ADA and that additional clarity with regard to how the Federation of Independent Business the disability necessitates a reasonable exceptions to the prohibition against (NFIB). We are aware that many accommodation. For example, an acquiring genetic information apply to businesses, especially small businesses, employer cannot request a person’s information received pursuant to the do not use forms when requesting complete medical records because they FMLA, we have added the above medical information, and we do not are likely to contain information examples to 1635.8(b)(1)(ii)(D)(2)(which intend this regulation to change the unrelated to the disability at issue and was 1635.8(b)(1)(iv) in the proposed practice of making such requests the need for accommodation. If an rule), as well as additional detail to the verbally. individual has more than one disability, preamble’s discussion of the FMLA If a covered entity does not give such an employer can request information exception (1635.8(b)(3)), discussed a written or verbal notice, it may pertaining only to the disability that below. See Comments of APA and Anil nonetheless establish that a particular requires a reasonable accommodation. Chaudhry. receipt of genetic information in See EEOC’s Enforcement Guidance on The Commission believes that the first response to a request for medical Reasonable Accommodation and Undue exception to the general prohibition of information was an inadvertent Hardship Under the Americans With requesting, requiring, or purchasing acquisition because the covered entity’s Disabilities Act, EEOC Notice No. genetic information should also apply request was not made in a way that was 915.002 (Oct. 17, 2002), available at when an individual requests leave ‘‘likely to result in the covered entity’s http://www.eeoc.gov/policy/docs/ pursuant to a leave policy independent obtaining genetic information’’ (for accommodation.html. Like any request of a federal, state, or local leave or example where an overly broad for medical documentation, the request disability law. Acquisition of genetic response is received in response to a for documentation as part of the information in these circumstances, like tailored request for medical reasonable accommodation process the acquisition of genetic information information). We note, however, that a should generally inform the individual where leave is requested pursuant to the warning is mandatory in all cases where or entity from whom the documentation FMLA or a state or local leave law, will a covered entity requests a health care is sought, using language like that noted be considered inadvertent if the covered professional to conduct an employment- above, that genetic information should entity affirmatively warns individuals related medical examination on the not be provided. and health care providers from whom covered entity’s behalf, since in that We note that GINA’s prohibition on they are seeking medical documentation situation, the covered entity should requesting, requiring, or purchasing not to provide genetic information, know that the acquisition of genetic genetic information would control using language like that noted above, or, information (e.g., family medical during the interactive process used to in the absence of such a warning, where history) would be likely in the absence determine an appropriate reasonable the request for medical information was of the warning. (See discussion of accommodation. The Commission not made in a way that was likely to 1635.8(d), below.) knows of no reason why a covered result in the covered entity’s obtaining The proposed regulation noted that entity would need to request genetic genetic information. Covered entities when a covered entity seeks information information to determine an should also be aware that overbroad from an individual who requests a individual’s current physical or mental requests for documentation to support reasonable accommodation under the limitations and whether those ADA or state or local law, the limitations can be accommodated. 10 There is a separate exception for the acquisition acquisition of genetic information as The Commission further recognizes of family medical history received from individuals part of the documentation that the that other federal, state, or local laws requesting leave under the FMLA or similar state or local laws to care for a family member. This individual provides in support of the may allow covered entities to obtain exception is discussed in detail below. request is considered inadvertent, as medical information about employees. 11 One commenter expressed concern that adding long as the request for documentation A covered entity that inadvertently any language to the FMLA certification form would was lawful. We received numerous receives genetic information in response result in a statutory violation of the FMLA. See Comment of Illinois Credit Union League. The comments asking us to describe in the to a lawful request for medical EEOC does not enforce the Family and Medical regulation itself what it means for a information under such a law would not Leave Act and therefore has no authority to request for documentation supporting a violate GINA. For example, a covered interpret it. We know of no reason, however, that request for reasonable accommodation entity might receive genetic information informing a health care provider that genetic information should not be provided when certifying to be considered lawful. See Comments in connection with an employee’s an employee’s own serious health condition would of APA, Disability Rights Legal Center request for FMLA leave to attend to the lead to a violation of the FMLA. Moreover, the (DRLC), the Epilepsy Foundation, and employee’s own serious health notice informing applicants/employees and health ICC. In response, we explain in the final condition or in connection with the care providers that they must not provide genetic information, including family medical history, to rule that in order to be considered a FMLA’s employee return to work covered entities need not be made on the FMLA lawful request for documentation made certification requirements, even though certification form itself, as long as it is provided in in response to an individual seeking a an employee is not required to provide writing along with the form.

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an employee’s use of leave may violate language reasonably likely to be alone or in conjunction with other the ADA. For information on the understood by the individual from factors, makes an individual’s genetic appropriate scope of inquiries in whom the information is sought; information readily identifiable, noting response to requests for leave (other describes the information being that this would impose burdens than as a reasonable accommodation), requested; and describes the safeguards particularly on small businesses. See see EEOC’s Enforcement Guidance on in place to protect against unlawful Comments Chamber/SHRM and IPMA/ Disability-Related Inquiries and Medical disclosure. Additionally, the proposed IMLA. Examinations of Employees Under the rule said that a wellness program or In the final rule, we have retained the Americans With Disabilities Act, 8 Fair other health or genetic services that a language in the NPRM, which tracked Empl. Prac. Man. (BNA) 405:7701, covered entity offers must be voluntary. the statutory language. GINA says that a (Enforcement Guidance) Questions 15– The preamble to the proposed rule covered entity may only receive genetic 17 (July 27, 2000) available at http:// noted that, under the ADA, a wellness information related to a wellness www.eeoc.gov/policy/docs/guidance- program that requires employees to program ‘‘in aggregate terms that do not inquiries.html. answer disability-related inquiries and/ disclose the identity of specific One commenter raised a concern or to submit to a medical examination [individuals],’’ see 42 U.S.C. 2000ff– about proposed 1635.8(b)(1)(vi), which is voluntary if the program neither 1(b)(2)(D); 2000ff–2(b)(2)(D); 2000ff– extended the inadvertent acquisition requires participation, nor penalizes 3(b)(2)(D); and 2000ff–4(b)(2)(D). exception to a covered entity that learns employees for non-participation. However, we have reconsidered the genetic information about an individual We received two comments asking position taken in the preamble to the in response to an inquiry about the whether the written request and NPRM that a covered entity offering individual’s general health, an inquiry authorization to participate in a health or genetic services will not about whether the individual has any wellness program could be provided comply with 1635.8(b)(2) if aggregate current disease, disorder, or electronically. See Comments of AHIP information disclosed to the covered pathological condition, or an inquiry and Kelly Hart & Hallman (KHH). We entity makes the genetic information of about the general health of an think this is permissible and have individuals readily identifiable. A individual’s family member. See revised the final rule accordingly. We provider of health or genetic services Comment of APA. APA asked that this do not think it is necessary to provide will likely be unaware of facts known to exception be limited to requests in the final rule specific standards for an a covered entity that would make ‘‘permitted by Federal, State or local electronic consent and authorization. identification of specific individuals law.’’ Rather than add any limiting The particular format chosen, however, readily identifiable from aggregate language, we have decided to eliminate must be functionally equivalent to what information. Likewise, a covered entity this subsection altogether, as it merely would be required in a written may not know that the identity of reiterates the examples spelled out in authorization, in terms of content and specific individuals from aggregate 1635.8(b)(1)(ii)(B) (formerly form. For example, because written information will be readily identifiable 1635.8(b)(1)(ii) in the proposed rule). authorization is a prerequisite to the until after it receives the information. Finally, one commenter asked that the acquisition of genetic information as We do not believe that Congress inadvertent acquisition exception be part of health or genetic services offered intended to impose liability on covered extended to acquisition of genetic by a covered entity, such as a voluntary entities who receive aggregate information by a self-insured employer wellness program, a covered entity information about health or genetic making health insurance billing could not utilize an on-line form that services under such circumstances. determinations in its capacity as an first requires an individual to input Therefore, the Commission here clarifies insurer. See Comment of Navigenics. It family medical history and then asks the that GINA is not violated if the provider is not necessary to extend the exception individual to indicate his or her of health or genetic services gives to cover these circumstances because, acceptance of the terms of an information to a covered entity in when a self-insured employer is acting authorization. Instead, a potential aggregate terms that, for reasons outside in its capacity as an insurer, its actions participant in the health or genetic the control of the provider or the are regulated by Title I of GINA, not services being offered must first be covered entity (such as the small Title II. Title I of GINA has specific presented with an electronic number of participants), makes the rules about acquiring genetic authorization that describes the request genetic information of a particular information for insurance payment in terms reasonably likely to be individual readily identifiable with no purposes. See 42 U.S.C. 1182(c)(3); 42 understood by the individual, the effort on the covered entity’s part. On U.S.C. 300gg–1(c)(3); 26 U.S.C. purposes for which it will be used, and the other hand, efforts undertaken by a 9802(c)(3). the safeguards in place for assuring its covered entity to link genetic Health or Genetic Services: GINA confidentiality, before any genetic information provided in the aggregate to permits covered entities to acquire information (such as family medical a particular employee will violate GINA. genetic information where health or history) can be provided. We received numerous comments in genetic services are offered by the The proposed regulation stated that response to a question we asked in the employer, including such services individually identifiable information preamble to the proposed rule offered as part of a wellness program, if may be provided only to the individual concerning when a wellness program the covered entity meets specific from whom it was obtained and that that includes a request for genetic requirements. The proposed regulation covered entities are entitled only to information should be considered listed the specific requirements in the receive information in aggregate terms voluntary. Specifically, we wanted to statute as prerequisites to the that do not disclose the identity of know the level of inducement, if any, acquisition of genetic information when specific individuals. Some comments that a covered entity could offer to offering health or genetic services: the objected to a statement in the preamble promote participation in a wellness individual provides prior knowing, to the proposed rule that a covered program. See 74 FR 9056, 9062 (March voluntary, and written authorization, entity that receives ‘‘aggregate’’ 2, 2009). From the many comments we meaning that the covered entity uses an information may still violate GINA received emphasizing the potential cost authorization form that is written in where the small number of participants, savings and benefits for employee

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health that could be brought about those allowed under the ‘‘twenty percent violation of Title II of GINA, however, through wellness programs, four rule’’ would violate the standard for covered entities who offer such approaches to voluntariness emerged. voluntariness under the ADA and GINA. programs and inducements to One approach suggested that we use See Comments of AHIP, IPMA/IMLA, individuals based on their voluntarily regulations promulgated pursuant to KHH, NFIB, and Staywell Health provided genetic information must also HIPAA, which define maximum levels Management. offer the programs and inducements to of inducements employers may offer to A third approach merely asked that individuals with current health employees who participate in, or we allow employers to offer conditions and/or to individuals whose achieve certain health outcomes as a inducements to promote employee lifestyle choices put them at risk of result of participating in, wellness participation in wellness programs, but acquiring a condition. programs. See Comments of American did not indicate whether inducements Recognizing that employers that Benefits Council (ABC), Chamber/ should be limited in any way. See sponsor group health plans (including SHRM, DMAA: The Care Continuum Comments of EEAC and Navigenics. self-insured group health plans) are Alliance (DMAA), Dorsey and Whitney, Finally, several comments urged that required to comply with Title II of GINA LLP, Healthways, National Business covered entities not be allowed to offer when operating as employers, and that Group on Health (NBGH), and United any monetary inducements to promote their plans are required to comply with Healthcare. Under the HIPAA participation in wellness programs that Title I of GINA, the Commission wishes regulations, employers may offer include the collection of genetic to provide examples of how Titles I and financial inducements of any size to information, including family medical II allow employers and plans to use encourage participation in wellness history. See Comments of ACLU, AMA, financial incentives to promote programs, and may offer inducements of GPPC and World Privacy Forum. employee wellness and healthy up to a specified percentage of the cost Balancing the potential benefits of lifestyles.14 The Commission notes that of group health insurance coverage for health and genetic services offered to providing financial incentives in an individual or an individual and employees on a voluntary basis, compliance with these GINA Title II family to participants who achieve including wellness programs, with the regulations does not relieve covered specific health outcomes. See 26 CFR need to construe exceptions to the entities of their responsibility to comply 54.9802–1(f)(1), 29 CFR 2590.702(f)(1), prohibition of acquisition of genetic with other GINA requirements under and 45 CFR 146.121(f)(1) (explaining information in a manner appropriately Title I, with other civil rights laws, such that a wellness program does not violate tailored to their specific purposes, we as the ADA, and with other applicable HIPAA’s nondiscrimination have concluded that covered entities laws and regulations. See requirements if none of the conditions may offer certain kinds of financial 1635.8(b)(2)(iv) (indicating that the ADA for obtaining a reward are based on an inducements to encourage participation requires ‘‘reasonable accommodations’’ individual satisfying a certain health in health or genetic services under to enable individuals with disabilities to standard, as long as participation in the certain circumstances, but they may not participate fully in wellness programs, program is offered to all similarly offer an inducement for individuals to and that the HIPAA nondiscrimination situated individuals). See also 26 CFR provide genetic information. As a result, rules require plans and issuers to 54.9802–1(f)(2), 29 CFR 2590.702 (f)(2), the Commission concludes that it would provide an individual with a ‘‘ ’’ and 45 CFR 146.121(f)(2) (providing not violate Title II of GINA for a covered reasonable alternative (or waiver of limits on financial inducements when entity to offer individuals an the otherwise applicable standard), rewards are conditioned on achieving inducement for completing a health risk when it is unreasonably difficult due to a medical condition to satisfy or certain health outcomes).12 assessment that includes questions medically inadvisable to attempt to Other comments appeared to suggest about family medical history or other satisfy the otherwise applicable a combination of the approach taken in genetic information, as long as the standard, 26 CFR 54.9802–1(f)(2), 29 the HIPAA regulations and the rule covered entity specifically identifies CFR 2590.702(f)(2), and 45 CFR under the ADA as articulated by EEOC those questions and makes clear, in 146.121(f)(2)) and 1635.8(b)(2)(v) in its Enforcement Guidance on language reasonably likely to be (noting that wellness programs that Disability-Related Inquiries and Medical understood by those completing the constitute group health plans may have Examinations of Employees Under the health risk assessment, that the to comply with Title I of GINA, among Americans with Disabilities Act (July 27, individual need not answer the 2000) (‘‘Enforcement Guidance’’). As we questions that request genetic 9802 of the Internal Revenue Code of 1986, 26 understand this suggestion, the standard information in order to receive the U.S.C. 9802, section 702 of the Employee for determining whether a wellness inducement. The regulation provides Retirement Income Security Act of 1974 (ERISA), 29 program is voluntary under the ADA— two examples to illustrate this approach U.S.C. 1182, or section 2705 of the Public Health that a covered entity neither requires to health risk assessments. Service Act (i.e., Title I of GINA). Regulations issued under these statutes impose special participation nor penalizes individuals We also believe that Title II allows requirements on wellness programs that collect for non-participation—should apply to covered entities to offer financial genetic information. Moreover, wellness programs GINA as well. See Enforcement inducements for participation in disease that condition rewards on an individual satisfying Guidance at Question 22. Any management programs or other a standard related to a health factor must meet additional requirements. See 26 CFR 54.9802–1(f), inducement that complied with the programs that encourage healthy 29 CFR 2590.702(f), and 45 CFR 146.121(f). HIPAA ‘‘twenty percent rule’’ should be lifestyles, such as programs that provide 14 Whether an employer or other covered entity deemed neither a penalty for non- coaching to employees attempting to that sponsors a group health plan chooses to participation nor a requirement to meet particular health goals (e.g., provide benefits through self-insurance or through participate. Inducements greater than achieving a certain weight, cholesterol a policy, certificate, or contract of insurance does 13 not affect the applicability of GINA Titles I and II. level, or blood pressure). To avoid a See 29 CFR 1635.11(b)(2) (discussing the 12 The 20 percent threshold described in the relationship of GINA Titles I and II). The above HIPAA nondiscrimination rules will increase to 30 13 A wellness program that provides (directly, examples of actions permissible under both titles percent beginning in 2014 under statutory changes through reimbursement, or otherwise) medical care are therefore helpful to all employers who offer made under the Patient Protection and Affordable (including genetic counseling) may constitute a health coverage to employees, whether through self- Care Act, Public Law 111–148. group health plan required to comply with section insured or insured plans.

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other laws). While the GINA Title II example, when completing the Commission reads this exception as regulations and the interim rules issued certification form required by section applying to all genetic information, not on October 7, 2009 to implement Title 103 of the FMLA). A covered entity that just to family medical history. For I (29 CFR 2590.702–1; 45 CFR 146.122, receives family medical history under example, an employer would not violate 26 CFR 54.9802–3T) each prohibit the these circumstances would not violate GINA if it learned that an employee had use of financial inducements to collect GINA. This exception is needed the breast cancer gene by reading a genetic information, they both permit because, unlike the situations discussed newspaper article profiling several covered entities or group health plans under the inadvertent acquisition women living with the knowledge that (including self-insured plans) to: exception, the receipt of genetic they have the gene. • Provide bifurcated health risk information in these circumstances is The statute identifies newspapers, assessments (HRAs), under which not inadvertent. By asking the employee magazines, periodicals, and books as financial incentives permitted under the to provide the information required by potential sources of genetic information. applicable title may be used to the FMLA certification form or similar The proposed regulation added to that encourage individuals to complete the state or local laws when seeking leave list information obtained through HRA, if the section of the questionnaire to care for a seriously ill family member, electronic media, such as the Internet, seeking genetic information (e.g. family a covered entity is requesting family television, and movies. The exception medical history) includes a notice that medical history from the employee. does not include genetic information completing that portion is optional and One commenter expressed concern contained in medical databases or court that the reward will be provided that businesses that are not covered by records. Research databases available to whether that portion is completed or the FMLA or similar state or local laws, scientists on a restricted basis, such as not; but who have company policies databases that NIH maintains for the • Use information collected through allowing the use of leave to care for scientific community, would not be such bifurcated HRAs, including seriously ill family members, would not considered ‘‘commercially and publicly voluntarily provided genetic be covered by this exception. See available.’’ information indicating that an Comment of the Small Business We received numerous comments in individual may be at risk for a disease, Administration (SBA). We agree that it response to our queries as to whether to target advertising materials or was unclear in the proposed rule the additional sources noted in the otherwise solicit voluntary participation whether acquisition of genetic proposed regulation should remain part in a disease management or prevention information in such circumstances of the final regulation and whether there program, provided that such a program would be covered by the exception and are sources similar in kind to those is also available to individuals who do therefore provide this clarification: This identified in the statute that may not provide genetic information as part exception applies to an employer that is contain genetic information and should of the HRA (that is, the program is not not covered by the FMLA or similar be included either in the group of limited only to individuals who state or local laws but that has a policy excepted sources or the group of complete the portion of the HRA that allowing for the use of leave to care for prohibited sources, such as personal requests genetic information); ill family members, as long as that Web sites or social networking sites. In • Provide financial incentives policy is applied evenhandedly by general, civil rights groups and groups permitted under the appropriate title to requiring all employees seeking leave to promoting genetic research, as well as individuals to participate in certain provide documentation about the health others, indicated that excepted sources disease management or prevention condition of the relevant family should be limited to widely available programs. The incentives to participate member.15 media with no heightened risk for in such programs must also be available Of course, family medical history containing genetic information, to individuals who qualify for the received from individuals requesting providing a variety of arguments in program but have not volunteered leave pursuant to the FMLA, similar support of this position. See Comments genetic information through an HRA. state or local laws, or company policies, of ACLU, APA, CGF, FDIC, GPPC, Under the Title II regulation, covered is still subject to GINA’s confidentiality Genetic Alliance, LCCR, Members of entities may contract with a third party requirements and must be placed in a PGEP, and World Privacy Forum. to operate a wellness program or to separate medical file and treated as a Several of these groups also noted that provide other health or genetic services, confidential medical record, as more employers who access commercially or may provide such programs and fully described below. and publicly available materials with a services through an in-house health Commercially and Publicly Available specific intent of searching for genetic services office, as long as individually Information: Fourth, GINA provides an information should not be permitted to identifiable genetic information is exception for the purchase of take advantage of the exception. See accessible only to the individual and the commercially and publicly available Comments of CGF, FDIC, GPPC, Genetic health care provider involved in materials that may include family Alliance, LCCR and World Privacy providing such services. Covered medical history. As with the exception Forum. Employers and employer entities must ensure that individually applicable to the inadvertent acquisition groups, on the other hand, maintained identifiable genetic information is not of family medical history, the that media formats such as personal web accessible to managers, supervisors, or pages, social networking sites, and blogs others who make employment 15 Although we also received a comment should be part of the exception arguing, decisions, or to anyone else in the requesting that the exception be limited to the among other things, that such sources workplace. acquisition of genetic information directly relevant to the leave request—e.g., if the request is to care are publicly available and that Family and Medical Leave Act: Third, for the employee’s daughter, only information employers have legitimate reasons to GINA recognizes that individuals received about the daughter’s condition would be access them. See Comments of requesting leave to care for a seriously covered by the exception—we find that such a Chamber/SHRM, EEAC, Navigenics, ill family member under the Family and requirement is beyond the scope of our enforcement 16 authority as it would be an attempt to limit the NFIB, SBA and TOC. Medical Leave Act (FMLA) or similar actions of the employee’s health care provider who state or local law will be required to completes the certification form. See Comment of 16 Chamber/SHRM reiterated its comment that a provide family medical history (for World Privacy Foundation. covered entity must undertake an intentional act of

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We conclude that a more detailed acquisition of family medical history.’’). monitoring is not specifically required explanation of this exception is For example, an employer who acquires by federal or state law or regulation, necessary. First, we agree that media genetic information by conducting an must obtain an individual’s prior sources with limited access should not Internet search for the name of an knowing, written, and voluntary be considered commercially and employee and a particular genetic authorization. Second, the regulation publicly available. Thus, if a media marker will not be protected by this describes the type of authorization form source requires permission for access exception, even if the information the the employer must provide in order to from a specific individual, as opposed employer ultimately obtained was from ensure that an individual’s to a media source that simply requires a source that is commercially and authorization is knowing and voluntary. users to obtain a username and/or publicly available. Conversely, an The authorization form must be written password, or if access is conditioned on employer who inadvertently acquires in a way that is reasonably likely to be membership in a particular group (e.g., genetic information while conducting understood by the person from whom a professional organization), the an Internet search of an employee the information is being sought, must acquisition of genetic information without reference to a genetic marker describe the type of genetic information through that source will not be will be protected by this exception. that will be obtained and the general protected by this exception. For Third, we have concluded that the purposes for which it will be used, and example, many Facebook, Linked In, My exception does not apply to the must describe the limitations on Space profiles, and other social acquisition of genetic information disclosure of the genetic information. networking platforms require through a media source, whether or not Third, all monitoring must comply with permission from the creator of the it is commercially and publicly all applicable provisions of the law and profile to gain access to anything available, if the covered entity is likely implementing regulations, including beyond basic information such as name to acquire genetic information by regulations promulgated pursuant to the and profession and therefore would not accessing that source. Thus, a covered Occupational Safety and Health Act of be considered commercially and entity that acquires genetic information 1970 (29 U.S.C. 651 et seq.), the Federal publicly available, although the after accessing a Web site that focuses Mine Safety and Health Act of 1977 (30 exception at 1635.8(b)(1) would still on issues such as genetic testing of U.S.C. 801 et seq.), and the Atomic apply to any genetic information individuals or a commercial database Energy Act of 1954 (42 U.S.C. 2011 et inadvertently obtained from such containing individually identifiable seq.). sources. On the other hand, most health information 17 will not be able to Whether or not the monitoring is personal Web sites and blogs are not so take advantage of this exception. undertaken pursuant to federal or state limited, but may simply require users to Finally, in response to comments from law, GINA requires that the individual obtain a username and/or password, and some employer groups that human receive results of the monitoring and therefore would be considered resource professionals and other that the covered entity receive commercially and publicly available. Of employers may access various media information only in aggregate terms that course, there are profiles or portions sources for personal reasons and not in do not disclose the identity of specific thereof on social networking sites that their capacity as covered entities, we individuals. As is the case with health do not require permission to access, and clarify that the requirements and or genetic services offered by a covered there may be situations in which access prohibitions of GINA do not apply to entity on a voluntary basis, we have to a social networking site is granted acquisitions of genetic information concluded that there is no violation of routinely, so that access cannot be said outside the employment context. See GINA if a covered entity receives to be limited. There are also Web sites Comments of NFIB and Navigenics. information only in aggregate terms, but and blogs that do limit access. The In response to one comment we is able to identify the genetic determining factor, then, in deciding received, we further clarify that genetic information of specific individuals for whether a media source is commercially information about an individual reasons outside the covered entity’s and publicly available is whether access acquired through any media source, control and with no effort on its part requires permission of an individual or including one that is commercially and (e.g., because of the small number of is limited to individuals in a particular publicly available or a source accessed employees involved in the monitoring). group, not whether the source is outside the employment context, may We have revised the language in the final regulation to mirror the statutory categorized as a social networking site, not be used to discriminate in language. personal Web site, or blog. employment decision-making and may Second, we agree that the exception Several commenters mentioned the not be disclosed in violation of Title II’s does not apply to genetic information need for a provision in the final confidentiality provisions. See acquired by covered entities that access regulation that protects workers who Comment of National Counsel of EEOC commercially and publicly available refuse to participate in genetic Locals no. 216, American Federation of sources with the intent of obtaining monitoring that is not required by law. Government Employees, AFL–CIO genetic information. This exception was See Comments of ACLU, CGF, Genetic (AFGE). intended to protect from liability a Alliance, GPPC and LCCR. These Genetic Monitoring: The statute also covered entity that inadvertently obtains commenters also requested that the final permits a covered entity to engage in the genetic information and not a covered regulation describe what actions a genetic monitoring of the biological entity that is actively searching for covered entity may legitimately take in effects of toxic substances in the genetic information. See S. Rep. 110–48 response to such a refusal. Id. We agree workplace, as long as that monitoring at 30 (‘‘The fourth exception, like the with these groups that GINA prohibits a meets certain requirements. First, a first, relates to the inadvertent covered entity from retaliating or covered entity must provide written otherwise discriminating against an notice of the monitoring and, where the requesting, requiring or purchasing genetic employee who refuses to participate in information to violate the prohibition on genetic monitoring that is not 17 acquisition and argued that accessing a social For example, one commenter provided several specifically required by law. An networking site that does not require payment is lists of identifiable individuals with diabetes therefore outside the scope of Title II. As explained available for sale on the Internet. See Comment of individual who refuses to participate in above, we reject this interpretation of the statute. World Privacy Forum. a voluntary genetic monitoring program

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should be informed of the potential disorder, or pathological condition examination on its behalf that the dangers (e.g., the consequences that should not be considered genetic covered entity does not want to receive might result if the effects of certain information (i.e. family medical history) genetic information acquired as part of toxins in the workplace are not about a family member working for the the examination. The final rule says that identified), but the covered entity is same employer. See Comment of the covered entity must tell the health prohibited from taking any adverse Chamber/SHRM. We decline to take this care professional not to collect genetic action, as that term is understood under position in the final rule, because we information as part of a medical Title VII of the Civil Rights Act of 1964 believe that the information would be examination intended to determine the and other civil rights laws, against the family medical history that an employer ability to perform a job, and must take individual. could not use to discriminate against, or additional reasonable measures within DNA Testing for Law Enforcement or disclose with respect to, the second its control if it learns that genetic Human Remains Identification employee. We agree, however, that a information is being requested or Purposes: Finally, sections 202(b), request for information about whether required. This could include no longer covering employers, and 205(b), an individual has a manifested disease, using the services of a health care covering apprenticeship or other disorder, or pathological condition does professional who continues to request or training programs, include a sixth not violate GINA simply because a require genetic information during exception for employers that engage in family member of the individual to medical examinations after being DNA testing for law enforcement whom the request was made works for informed not to do so. Unlike the purposes as a forensic lab or for the same employer, is a member of the warning described in 1635.8(b)(1), purposes of human remains same labor organization, or is which may not be necessary if a covered identification. GINA provides that these participating in the same apprenticeship entity can show that it could not have entities may request or require genetic program as the person from whom the known it would receive genetic information of such employer’s information was requested. We have information in response to a lawful employees, apprentices, or trainees, ‘‘but modified the final rule to reflect this request for medical documentation, the only to the extent that such genetic more limited point. warning provided for in 1635.8(d) is information is used for analysis of DNA Section 1635.8(c)(2) addresses a required, because any time an employer identification markers for quality related issue that may arise when an sends an applicant or employee for a control to detect sample contamination.’’ individual’s family member who, medical examination, the employer 42 U.S.C. 2000ff–1(b)(6) and 2000ff– although not an employee of the same knows or should know that genetic 4(b)(6). The genetic information may be employer, a member of the same labor information is likely to be requested. We maintained and disclosed in a manner organization, or a participant in the note, however, that family medical consistent with this limited use. This is same apprenticeship program as the history and other genetic information a very limited exception and, if the individual, nevertheless receives health may be obtained as part of health or analysis is properly conducted, an or genetic services offered by a covered genetic services provided by the employer or training program would not entity as permitted under 1635.8(b)(2). employer (see 29 CFR 1635.8(b)(2)), and obtain health-related genetic The collection of information about the that Title II of GINA does not apply at information. Several comments, while manifested disease or disorder of a all to medical examinations conducted expressing general agreement with family member in the course of for the purpose of diagnosis and EEOC’s position, requested that the final providing health or genetic services to treatment that are unrelated to regulation make clear that genetic the family member is not an unlawful employment (e.g., where an employee information covered by this exception acquisition of genetic information about seeks health services from the same must be destroyed after a designated the individual. hospital where he or she works). See time period and that the samples and Section 1635.8(d) 1635.1(b)(1). results be used solely for quality control and not be entered into any law We received several comments The preamble to the proposed rule enforcement database. See Comments of concerning the extent to which health suggested that there would never be CGF, Genetic Alliance, and GPPC. We care professionals may request genetic situations in which genetic information find that it is unnecessary to add any information (particularly family medical (including family medical history) further limitations to those set forth in history) as part of a lawful medical would be needed as part of a medical the statute and the proposed regulation. examination (e.g., a post-offer exam or examination conducted to assess an Both make clear that this is a very fitness for duty exam) to determine individual’s ability to perform a job. limited exception, allowing only for the whether an individual has a manifested One federal agency asked whether the use of genetic information for analysis disease, disorder, or pathological final rule would include an exception of DNA identification markers for condition. A number of comments allowing an employer or other covered quality control and to detect sample suggested that the final rule should not entity to collect family medical history contamination, and not for any other necessarily limit the scope of the (e.g., questions about the prevalence of law enforcement purpose. Rather than inquiries a health care professional may a psychiatric disability in family specifying in the regulation how such make, but should ensure that any members of an individual) as part of the information should be used, we believe genetic information collected as part of process of determining whether to grant it is sufficient to state, as the final rule the examination is not shared with the or deny a security clearance. See does, that the information may be used employer. See Comments of AMA, Comments of United States Customs in accordance with the purpose for Chamber/SHRM, EEAC and IPMA; see and Immigration Services. Neither the which it was acquired. also Comments of United States plain language of Title II, which Customs and Immigration Service enumerates very specific exceptions to Section 1635.8(c) (requesting clarification on this point). the rule prohibiting acquisition of We have added a new provision to We do not think it is sufficient for an genetic information, nor GINA’s 1635.8. Subsection (c)(1) responds to a employer or other covered entity merely legislative history references such an comment that said that information to indicate to the health care exception; therefore, the Commission about an employee’s manifested disease, professional conducting a medical declines to include one in the final rule.

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In response to comments from some Section 1635.9(a) Treatment of Genetic disclosing those files, we would employers that genetic information may Information anticipate that covered entities who be needed to make a diagnosis of a Under GINA, covered entities are have been complying with the ADA will manifested disease, disorder, or required to treat genetic information in have very few personnel files that pathological condition, we considered their possession the same way they treat contain genetic information. adding a very narrow exception to the medical information generally. They We received one comment prohibition on acquiring genetic must keep the information confidential questioning what an employer should information to allow a covered entity or and, if the information is in writing, do if it is aware that employees are health care professional acting on the must keep it apart from other personnel discussing genetic information of co- covered entity’s behalf to request information in separate medical files.18 workers with other employees. See genetic information as part of a medical Congress made express the requirement Comment of Navigenics. We do not examination where doing so is that covered entities keep genetic think this has been a significant necessary to determine whether an information confidential by using the problem under the ADA, which has a individual has a particular manifested confidentiality regime required by the similar confidentiality rule pertaining to disease, disorder, or pathological ADA generally for medical records. H.R. employee medical information in condition and where information about Rep. 110–28, part I, at 39. GINA does general, and therefore do not think that the particular disease, disorder, or not require that covered entities many charges will be filed alleging that pathological condition, as opposed to its maintain a separate medical file for a covered entity violated GINA by signs and symptoms, is necessary to genetic information. Genetic allowing co-workers to share genetic evaluate an individual’s ability to information may be kept in the same file information about another individual. perform a particular job. See Comments as medical information subject to the However, we note that the analysis of an of AHIP, Chamber/SRHM, EEAC and ADA. employer’s responsibility to prevent SBA. We decided against creating this In response to questions raised by harassment by co-workers is extra-statutory exception, however, commenters, we note that although instructive—an employer is liable for because neither the commenters that genetic information placed in personnel harassment of an employee by co- raised this concern nor the experts with files prior to the effective date of GINA workers if it knew or should have whom we consulted were able to Title II need not be removed and an known of the misconduct, unless it can provide an example that fits within it. employer will not be liable under GINA show that it took immediate and Although there may be cases where a for the mere existence of the appropriate corrective action. See 29 manifested disease, disorder, or information in the file, disclosing such CFR 1604.11(d). We believe a similar pathological condition can only be information to a third party is standard would work well in the case of positively diagnosed through use of prohibited. See Comments of EEAC and an employer’s responsibility to prevent genetic information, there does not SBA. GINA’s prohibitions on use and individuals from discussing the genetic information of co-workers. appear to be a case in which the disclosure of genetic information apply Chamber/SHRM requested that the diagnosis, as opposed to the signs and to all genetic information that meets the final regulation clarify that certain symptoms, is necessary to evaluate an statutory definition, including genetic communications are exempt from individual’s ability to perform a information acquired prior to the GINA’s confidentiality provisions, such particular job. For example, although effective date of GINA. See Comments of as communications to a contractor experts at the National Institutes of CGF, Genetic Alliance, and GPPC performing relevant business functions Health noted that a genetic test may be (requesting clarification of this point). (e.g., storing medical information on used to confirm a diagnosis of cystic We would not anticipate that removing behalf of an employer) or to attorneys fibrosis based principally on the clinical genetic information in a personnel file for purposes of litigation or legal analysis of the patient, the signs or acquired before GINA’s effective date in assessment. This clarification is not symptoms of cystic fibrosis (including, response to a request to disclose the file necessary. First, it is apparent that a for example, frequent lung infections, would impose a significant burden on covered entity’s attorney or a business sinusitis, bronchitis and pneumonia, covered entities. Most genetic with whom it has contracted to store and nasal polyps, among others) would information is medical information that medical information on its behalf is an be sufficient, regardless of the specific has been subject to the ADA’s agent of the covered entity and would disease, disorder, or pathological confidentiality requirements since 1992 therefore be permitted access to relevant condition that may be causing them, to (with respect to employers with 25 or genetic information. Second, as noted assess an individual’s ability to do a job. more employees) or 1994 (with respect above, GINA uses the confidentiality Moreover, in the case of cystic fibrosis, to employers with 15 to 24 employees). regime required by the ADA generally it is extremely unlikely that an Consequently, although all covered for medical records. This regime does individual seeking employment would entities must remove genetic not include specific exceptions for be unaware of his or her diagnosis. information from personnel files prior to communications to attorneys for the Because we have no information purposes of litigation or to contractors supporting the need for this type of 18 Genetic information that a covered entity performing relevant business functions; exception, we decided not to add to the receives verbally and does not reduce to writing must still be kept confidential, except to the extent yet we have not seen any charges exceptions specifically described in the that GINA permits disclosure. As noted in the challenging these types of statute. regulation at 1635.9(a)(3), a covered entity need not communications. reduce to writing genetic information that it As noted above, a covered entity does Section 1635.9 Confidentiality receives orally. Although one commenter requested that this language be altered to indicate that covered not violate GINA when it acquires GINA section 206 addresses entities should not reduce genetic information that genetic information through sources that confidentiality of genetic information it receives orally to writing, we have decided to are publicly and commercially generally, establishes permitted maintain the existing language. See Comment of available, as long as it does not research DLRC. This language was inserted in the proposed disclosures, and describes the rule to respond to concerns that GINA required those sources with the intent of relationship between GINA and HIPAA. employers to reduce to writing any genetic acquiring genetic information or access Each of these items is discussed below. information received. sources that are likely to include genetic

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information. For example, an employer Moreover, the language of the be construed as applying to the use or that purchased a newspaper with an regulation, taken from the statute, notes disclosure of genetic information that is obituary about a family member of an that if the court order was secured protected health information subject to employee indicating that the employee’s without the knowledge of the employee the HIPAA Privacy Rule. See discussion relative died of a disease or disorder or member to whom the information of Section 1635.11(d), infra, for an that has a genetic component would not refers, the covered entity must inform example of the interaction under GINA violate GINA. Similarly, a labor the employee or member of the court between the HIPAA Privacy Rule and organization may lawfully acquire a order and the information that was this regulation. magazine or periodical with an article disclosed. Because the covered entity Section 1635.10 Enforcement and about a member that includes family may not know whether the employee or Remedies medical history about the member’s member is aware of the court order, it parent, sibling, or child. In neither should inform the employee or member In crafting GINA’s enforcement and instance, nor in any similar instance of the court order and the disclosed remedies section, Congress recognized where a covered entity acquires family information unless it knows that the the advisability of using the existing medical history through sources that are employee or member already has this mechanisms in place for redress of other publicly and commercially available, information. This exception does not forms of employment discrimination. In must the covered entity place the allow disclosures in other particular, the Senate noted that this information into a confidential medical circumstances during litigation, such as section intends to take ‘‘advantage of the file. Moreover, inasmuch as one of in response to discovery requests or expertise and process of the EEOC.’’ S. GINA’s purposes is the protection from subpoenas that are not governed by an Rep. No. 110–48, at 31 & n.17. In this disclosure of otherwise private genetic order specifying that genetic regard, GINA and the final regulation information, disclosure of genetic information must be disclosed. Thus, a provide the following: information obtained through sources covered entity’s refusal to provide • The enforcement mechanism that are commercially and publicly genetic information in response to a applicable and remedies available to available does not violate the Act. discovery order, subpoena, or court employees and others covered by Title However, a covered entity may not use order that does not specify that genetic VII of the Civil Rights Act of 1964 apply family medical history to make information must be disclosed is to GINA as well.19 The statute employment decisions, even if the consistent with the requirements of references sections 705–707, 709–711, information was acquired through GINA. and 717 of Title VII, 42 U.S.C. 2000e– commercially and publicly available The fourth exception permits 4, et seq. The Commission notes that its sources. disclosure of relevant genetic implementing regulations found at 29 information to government officials CFR parts 1601 (procedural regulations), Section 1635.9(b) Exceptions to investigating compliance with the 1602 (recordkeeping and reporting Limitations on Disclosure statute. The fifth exception permits requirements under Title VII and the GINA permits disclosure of genetic disclosure consistent with the ADA), and 1614 (federal sector information in limited circumstances. requirements of the FMLA or similar employees) apply here as well. First, a covered entity may disclose state or local leave law. For example, an • The procedures applicable and genetic information to the individual to employee’s supervisor who receives a remedies available to employees whom it relates, if the individual request for FMLA leave from an covered by sections 302 and 304 of the requests disclosure in writing. Second, employee who wants to care for a child Government Employee Rights Act of the section states that genetic with a serious health condition may 1991, 42 U.S.C. 2000e–16(b) & (c) information may be provided to an forward this request to persons with a (GERA) apply under GINA.20 EEOC occupational or other health researcher need to know the information because regulations applicable to GERA are ‘‘if the research is being conducted in of responsibilities relating to the found at 29 CFR part 1603. compliance with the regulations under’’ handling of FMLA requests. Finally, the • The procedures applicable and 45 CFR part 46 (regulating research sixth exception permits disclosure of remedies available to employees involving human subjects). One family medical history to federal, state, covered by 3 U.S.C. 401 et seq. are set commenter requested that this type of or local public health officials in forth in 3 U.S.C. 451–454.21 These disclosure only be permitted if connection with a contagious disease participation in the research is that presents an imminent hazard of 19 As defined by section 701 of the Civil Rights voluntary and the information obtained death or life-threatening illness. The Act of 1964, 42 U.S.C. 2000e, an employee is an is not used for secondary research individual employed by a person engaged in an statute requires the covered entity to industry affecting commerce who has fifteen or purposes. See Comment of ACLU. The notify the employee of any release of a more employees for each working day in each of requirements of 45 CFR part 46 itself, family member’s medical history twenty or more calendar weeks in the current or however, include obtaining the information when undertaken for this preceding calendar year and any agent of such a informed consent of research person. purpose. 20 participants, which involves fully As defined by section 304(a) of GERA, 42 U.S.C. 2000e–16c(a), an employee is a person informing participants of the purposes Section 1635.9(c) Relationship to HIPAA Privacy Regulations chosen or appointed by an individual elected to and risks of the research, as well as the public office by a State or political subdivision of extent to which confidentiality of GINA section 206(c) provides that the a State to serve as part of the personal staff of the identifying records will be maintained. provisions of Title II of GINA are not elected official, to serve the elected official on a policy-making level, or to serve the elected official See 45 CFR 46.116. We need not adopt intended to apply to uses and as the immediate advisor on the exercise of the further safeguards in these disclosures of health information elected official’s constitutional or legal powers. circumstances. governed by the HIPAA Privacy Rule. 21 As defined by, and subject to the limitations in, The third exception permits Accordingly, and consistent with the section 2(a) of the Presidential and Executive Office disclosure in compliance with a court general rule of construction Accountability Act, 3 U.S.C. 411(c), these employees include any employee of the executive order. It provides that the disclosure of implementing this statutory provision at branch not otherwise covered by section 717 of the genetic information must be carefully 1635.11(d), this rule provides at Civil Rights Act of 1964, 42 U.S.C. 2000e–16, tailored to the terms of the order. 1635.9(c) that nothing in 1635.9 should section 15 of the Age Discrimination in

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sections provide for counseling and Section 1635.11(a) Relationship to of diagnosis and treatment that is mediation of employment Other Laws Generally wholly unrelated to employment (e.g., discrimination allegations and the The subsection first addresses the where an employee seeks health formal process of complaints before the relationship of Title II of GINA to other services from the hospital where he or Commission using the same federal, state, local, and tribal laws she works). Other provisions in this section administrative process generally governing genetic discrimination, the clarify that GINA does not (1) limit or applicable to employees in the privacy of genetic information, and expand rights or obligations under Executive Branch of the Federal discrimination based on disability. Over workers’ compensation laws; (2) limit or government; that is, the process set forth 30 states have laws addressing genetic expand the rights of federal agencies to in 29 CFR part 1614. discrimination in employment. Some conduct or support occupational or may be more stringent than GINA; Employees covered through the other health research conducted in others less so. GINA makes clear that it Congressional Accountability Act of accordance with the rules found in 45 does not preempt any other state or 1995 must use the procedures set forth CFR part 46; or (3) limit the statutory or local law that provides equal or greater in that statute. The Commission has no regulatory authority of the Occupational protections than GINA from authority with respect to the Safety and Health Administration or the discrimination on the basis of genetic Mine Safety and Health Administration enforcement of GINA as to employees information or improper access or covered through this provision. or other workplace health and safety disclosure of genetic information. laws and regulations. Another provision The final regulation includes a Additionally, Title II of GINA does not addresses the exemption from GINA of separate reference to the remedies limit the rights or protections under the Armed Forces Repository of provisions applicable to GINA. Similar federal, state, local or tribal laws that Specimen Samples for the Identification to other federal anti-discrimination provide greater privacy protection to of Remains. laws, GINA provides for recovery of genetic information. The EEOC will The final provision in this subsection pecuniary and non-pecuniary damages, provide information on our public Web makes clear that GINA does not require including compensatory and punitive site about state and local laws that that a covered entity provide damages. The statute’s incorporation by prohibit employment discrimination on individuals with any specific benefits or reference of section 1977A of the the basis of genetic information. See specialized health coverage. A covered Revised Statutes of the United States (42 Comment of SBA (requesting more entity does not have to offer health U.S.C. 1981a) also imports the information about state and local laws benefits that relate to any specific limitations on the recovery of addressing genetic information). genetic disease or disorder. GINA Similarly, GINA does not affect an compensatory damages for future merely requires that the covered entity individual’s rights under the ADA, the pecuniary losses, emotional pain, not discriminate against those covered Rehabilitation Act, or state or local laws suffering, etc., and punitive damages by the Act on the basis of genetic that prohibit discrimination against information. applicable generally in employment individuals based on disability. So, for discrimination cases, depending on the example, an individual could challenge Section 1635.11(b) Relationship to size of the employer. Punitive damages the disclosure of genetic information Other Federal Laws Governing Health are not available in actions against the under the ADA where the information is Coverage federal government, or against state or also considered medical information GINA section 209(a)(2)(B) includes local government employers. subject to that law. Additionally, even four subsections that address the Finally, at 1635.10(c) the regulation though information that an employee relationship between Title II and notes that covered entities are required currently has a disease, such as cancer, requirements or prohibitions that are to post notices in conspicuous places is not subject to GINA’s confidentiality subject to enforcement under other describing GINA’s applicable provisions, such information would be federal statutes addressing health provisions. The Commission issued a protected under the ADA, and an coverage. Section 209(a)(2)(B)(i) states revised EEO poster that may be used for employer would be liable under that that nothing in Title II provides for this purpose prior to GINA’s effective law for disclosing the information, enforcement of, or penalties for, date (November 21, 2009). It is available unless a specific ADA exception violations of requirements or to order or print on EEOC’s Web site at applied. prohibitions subject to enforcement http://www1.eeoc.gov/employers/ GINA does limit, however, an under GINA Title I. The three following poster.cfm. employer’s ability to obtain genetic subsections, sections 209(a)(2)(B)(ii)– information as a part of a disability- (iv), state that nothing in Title II Section 1635.11 Construction related inquiry or medical examination. provides for enforcement of, or penalties For example, an employer will no for, any requirement or prohibition GINA section 209 and this section of longer be able to obtain family medical subject to enforcement under various the regulation set forth rules of history or conduct genetic tests of post- sections of ERISA, the Public Health construction applicable to GINA’s offer job applicants, as it currently may Service Act, and the Internal Revenue coverage and prohibitions. They address do under the ADA. We reiterate, Code, which generally prohibit a group principally GINA’s relationship to other however, that family medical history health plan or health insurance issuer in federal laws covering discrimination, and other genetic information may be the group market from: health insurance, and other areas of acquired in connection with employer- • Imposing a preexisting condition potential conflict. provided health or genetic services, exclusion based solely on genetic including wellness programs, that are information, in the absence of a Employment Act of 1967, 29 U.S.C. 633a, or section provided on a voluntary basis (see diagnosis of a condition; 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791, 1635.8(b)(2)), and that Title II of GINA • Discriminating against individuals whether appointed by the President or any other appointing authority in the executive branch, does not apply to genetic information in eligibility and continued eligibility including an employee of the Executive Office of acquired as part of a medical for benefits based on genetic the President. examination conducted for the purpose information; and

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• Discriminating against individuals for group coverage in ERISA, the Public including any implementing regulations in premium or contribution rates under Health Service Act, and the Internal thereunder. The section and the the plan or coverage based on genetic Revenue Code. The firewall seeks to implementing regulation reiterate the information, although such a plan or ensure that health plan or issuer limitations imposed on Title II in the issuer may adjust premium rates for an provisions or actions are addressed and area of group health coverage. employer based on the manifestation of remedied through ERISA, the Public Section 1635.11(d) Relationship to a disease or disorder of an individual Health Service Act, or the Internal HIPAA Privacy Regulations enrolled in the plan. Revenue Code, while actions taken by The intent of this section is to create employers and other GINA Title II Final § 1635.11(d) implements section a clear ‘‘firewall’’ between GINA Titles I entities are remedied through GINA 206(c) of GINA Title II by providing, as and II so that health plan or issuer Title II. The regulation reiterates the a general rule of construction, that this provisions or actions are addressed and language of the section, noting the regulation does not apply to protected remedied through GINA Title I, ERISA, specific sections from ERISA, the Public health information subject to the HIPAA the Public Health Service Act, or the Health Service Act, and the Internal Privacy Rule. Thus, entities subject to Internal Revenue Code and not through Revenue Code that the section covers. the HIPAA Privacy Rule must continue Title II and other employment Employers and other GINA Title II to apply the requirements of the HIPAA discrimination procedures. covered entities, however, would Privacy Rule, and not the requirements We received a variety of comments remain liable for any of their actions of GINA Title II and these implementing requesting further clarification of the that violate Title II, even where those regulations, to genetic information that firewall provision. Employer groups actions involve access to health benefits, is protected health information. For argued that the final regulation should because such benefits are within the example, if a hospital subject to the make very clear that the firewall is definition of compensation, terms, HIPAA Privacy Rule treats a patient broad. See Comments of ABC, Blue conditions, or privileges of employment. who is also an employee of the hospital, Cross and Blue Shield Association For example, an employer that fires an any genetic information that is obtained (BCBSA), Chamber/SHRM and NFIB. employee because of anticipated high or created by the hospital in its role as Some of these same groups requested health claims based on genetic a health care provider is protected that more specific language about the information remains subject to liability health information and is subject to the lack of double liability be inserted into under Title II. On the other hand, health requirements of the HIPAA Privacy Rule the regulation itself and provided model plan or issuer provisions or actions and not those of GINA. In contrast, language for this purpose. See related to the imposition of a preexisting however, any genetic information Comments of ABC, Blue Cross and Blue condition exclusion; a health plan’s or obtained by the hospital in its role as Shield Association, (BSBCA), and issuer’s discrimination in health plan employer, for example, as part of a Chamber/SHRM. Civil rights groups, eligibility, benefits, or premiums based request for leave by the employee, groups promoting genetic research, and on genetic information; a health plan’s would be subject to GINA Title II and others argued that the final rule should or issuer’s request that an individual this rule. Similarly, a health care clarify that the firewall was not undergo a genetic test; and/or a health provider may share genetic information, intended to immunize from liability plan’s or issuer’s collection of genetic consistent with the HIPAA Privacy decisions and actions that violate Title information remain subject to Rule, in the course of providing genetic II, simply because those decisions enforcement under Title I exclusively. services as part of a voluntary wellness involve health benefits governed by Below are a few examples of how the program. Title I. See Comments of CGF, firewall is intended to operate: Several commenters requested that Congressional Committee on Education • If an employer contracts with a the final regulation make clear that and Labor (CCEL) (offering specific health insurance issuer to request genetic information obtained by a health model language), Genetic Alliance, and genetic information, the employer has care provider covered by the HIPAA GPPC. CCEL argued that the proposed committed a Title II violation. In Privacy Rule may not be used in making regulation failed to make clear that addition, the plan and issuer may have employment decisions and must be kept liability under GINA is based on the violated Title I of GINA. separate from employment files. See actor who discriminates (i.e., employers • If an employer directs its employees Comments of CGF, Genetic Alliance and or health plans/insurers) and not the act to undergo mandatory genetic testing in GPPC. Another commenter was of discrimination. See Comment of order to be eligible for health benefits, concerned that the language in the CCEL. Commenters also requested that the employer has committed a Title II proposed preamble suggested that an the final regulation include additional violation. entity covered by both the HIPAA examples illustrating how the firewall • If an employer or union amends a Privacy Rule and GINA can use genetic will work, with one commenter health plan to require an individual to information to discriminate against providing specific examples for this undergo a genetic test, then the applicants and employees because the purpose. See Comments of CCEL employer or union is liable for a requirements of GINA do not apply to (providing specific examples and model violation of Title II. In addition, the it. See Comment of World Privacy language), Navigenics and SBA. We health plan’s implementation of the Forum. In response to these comments, agree that further clarification of the requirement may violate Title I. we clarify that all entities covered by firewall is required and, after careful Title II of GINA, whether or not they are Section 1635.11(c) Relationship to review of the comments received, have also covered by the HIPAA Privacy Authorities Under GINA Title I made the necessary changes to the Rule, must follow the requirements of preamble and the final regulation. The final subsection in GINA section GINA when they are acting as Section 209(a)(1)(B) eliminates 209 provides that nothing in GINA Title employers. ‘‘double liability’’ for health plans and II prohibits a group health plan or group insurers by preventing Title II causes of health insurance issuer from engaging in Section 1635.12 Medical Information action from being asserted regarding any activity that is authorized under the That Is Not Genetic Information matters subject to enforcement under GINA Title I provisions identified in The final regulation states that a Title I or the other genetics provisions GINA section 209(a)(2)(B)(i)–(iv), covered entity does not violate GINA by

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acquiring, using, or disclosing medical Management and Budget under the GINA will require that covered information about a manifested disease Paperwork Reduction Act (44 U.S.C. entities obtain and post revised notices or disorder that is not genetic chapter 35). informing covered individuals of their information, even if the disease or rights under the law. Employers will not Regulatory Flexibility Act disorder may have a genetic basis or incur any costs related to obtaining or component. It further notes, however, Title II of GINA applies to all posting these notices because the that the ADA, and the applicable employers with fifteen or more Commission provides employers, at no regulations issued in support of the Act, employees, approximately 822,000 of cost, a poster explaining the EEO laws would limit the disclosure of genetic which are small firms (entities with that will be updated to include information that also is medical 15–500 employees) according to data information about GINA. provided by the Small Business information and covered by the ADA. In To the extent that employers will Administration Office of Advocacy. See response to a comment, we clarify that need to expend resources to train Firm Size Data at http://sba.gov/advo/ GINA prohibits discrimination based on human resources staff and others on the research/data.html#us. genetic information and not on the basis requirements of GINA, we note that the of a manifested condition, while the The Commission certifies under 5 U.S.C. 605(b) that this final rule will not EEOC conducts extensive outreach and ADA prohibits discrimination on the technical assistance programs, many of basis of manifested conditions that meet have a significant economic impact on a substantial number of small entities them at no cost to employers, to assist the definition of disability. See in the training of relevant personnel on Comment of ICC. Although another because it imposes no reporting burdens and only minimal costs on such firms. EEO-related issues. In FY 2008, for commenter expressed concern that example, EEOC’s outreach efforts neither GINA nor the ADA protects GINA is intended to prevent discrimination based on concerns that included 5,360 education, training, and individuals with a manifested genetic genetic information about an individual outreach events reaching over 270,000 disease that is not yet substantially suggests an increased risk of, or people. EEOC District offices conducted limiting, we note that we have no predisposition to, acquiring a condition 530 no-fee outreach events directed authority under these regulations to in the future. Because individuals toward small businesses, including expand the coverage of GINA. See protected under GINA do not have many events in partnership with Comment of Burton Blatt Institute. currently manifested conditions that employer associations, such as the Moreover, given the broader definition would result in any workplace barriers, Society for Human Resource of disability that now exists under the the law imposes no costs related to Management, and the Industry Liaison Americans with Disabilities Act making workplace modifications. To the Groups and other federal agencies, such Amendments Act (ADAAA), it is less extent GINA requires businesses that as the National Labor Relations Board likely that a significant number of obtain genetic information about and the Office of Federal Contract individuals will fall within this gap. applicants or employees to maintain it Compliance Programs. Events included Perhaps most notably, the revised in confidential files, GINA permits them oral presentations, training and definition of the ‘‘regarded as’’ definition to do so using the same confidential stakeholder input meetings involving of ‘‘disability’’ would apply to anyone files they are already required to 28,525 small business representatives. against whom an employer or other maintain under Title I of the Americans We expect to include information about covered entity takes a prohibited action with Disabilities Act. GINA in our outreach programs in (e.g., failure to hire or termination) The Act may require some general and to offer numerous GINA- based on an actual or perceived physical modification to the post offer/pre- specific outreach programs once the or mental impairment that is not employment medical examination regulation implementing Title II of transitory (lasting or expected to last for process of some employers, to remove GINA becomes final. We will also post six months or less) and minor. See 42 from the process questions pertaining to technical assistance documents on our U.S.C. 12102(3)(A). family medical history. We do not have Web site explaining the basics of the Regulatory Procedures data on the number and size of new regulation, as we do with all of our businesses that obtain family medical new regulations and policy documents. Executive Order 12866 history as part of a post-offer medical We estimate that typical human Pursuant to Executive Order 12866, examination. However, our experience resources professionals will need to EEOC has coordinated this final rule with enforcing the ADA, which required dedicate, at most, three hours to gain a with the Office of Management and all employers with fifteen or more satisfactory understanding of the new Budget. Under section 3(f)(1) of employees to remove medical inquiries requirements, either by attending an Executive Order 12866, EEOC has from their application forms, suggests EEOC-sponsored event or reviewing the determined that the regulation will not that revising post-offer medical relevant materials on their own. We have an annual effect on the economy questionnaires to eliminate questions further estimate that the median hourly of $100 million or more or adversely about family medical history would not pay rate of an HR professional is affect in a material way the economy, a impose significant costs. We recognize approximately $46.40. See Bureau of sector of the economy, productivity, that some employers who currently Labor Statistics, Occupational competition, jobs, the environment, request medical information from Employment and Wages, May 2009 at public health or safety, or state, local or employees verbally may decide to make http://www.bls.gov/oes/current/ tribal governments or communities. such requests in writing and may create oes113049.htm#5#5. Assuming that Therefore, a detailed cost-benefit a form for this purpose, in response to small entities have between one and five assessment of the regulation is not the safe harbor described in HR professionals/managers, we estimate required. 1635.8(b)(1)(i). We have no data that that the cost per entity of getting would enable us to determine how appropriate training will be between Paperwork Reduction Act many businesses will change their approximately $139.00 and $696.00, at This rule contains no new practices, but do not believe the cost of the high end. EEOC does not believe information collection requirements creating a form for those businesses who that this cost will be significant for the subject to review by the Office of choose to do so would be significant. impacted small entities.

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Although several commenters requesting, requiring, or purchasing U.S.C. 1301, any employee of the House requested that EEOC provide training genetic information; of Representatives, the Senate, the and technical assistance specifically (3) Requires that genetic information Capitol Guide Service, the Capitol geared towards small businesses, we be maintained as a confidential medical Police, the Congressional Budget Office, received no comments disputing our record, and places strict limits on the Office of the Architect of the estimates of the number of small entities disclosure of genetic information; and Capitol, the Office of the Attending impacted or the cost to those entities. (4) Provides remedies for individuals Physician, the Office of Compliance, or See Comments of NFIB, NSBA and SBA. whose genetic information is acquired, the Office of Technology Assessment; As noted above, EEOC will offer training used, or disclosed in violation of its (4) As defined by, and subject to the on Title II of GINA in various formats, protections. limitations in, section 2(a) of the as well as issuing the necessary (b) This part does not apply to actions Presidential and Executive Office technical assistance guidance. of covered entities that do not pertain to Accountability Act, 3 U.S.C. 411(c), any an individual’s status as an employee, employee of the executive branch not Unfunded Mandates Reform Act of 1995 member of a labor organization, or otherwise covered by section 717 of the This final rule will not result in the participant in an apprenticeship Civil Rights Act of 1964, 42 U.S.C. expenditure by state, local, or tribal program. For example, this part would 2000e–16, section 15 of the Age governments, in the aggregate, or by the not apply to: Discrimination in Employment Act of private sector, of $100 million or more (1) A medical examination of an 1967, 29 U.S.C. 633a, or section 501 of in any one year, and it will not individual for the purpose of diagnosis the Rehabilitation Act of 1973, 29 U.S.C. significantly or uniquely affect small and treatment unrelated to employment, 791, whether appointed by the President governments. Therefore, no actions were which is conducted by a health care or any other appointing authority in the deemed necessary under the provisions professional at the hospital or other executive branch, including an of the Unfunded Mandates Reform Act health care facility where the individual employee of the Executive Office of the of 1995. is an employee; or President; (2) Activities of a covered entity (5) As defined by, and subject to the Dated: October 29, 2010. carried on in its capacity as a law limitations in, section 717 of the Civil For the Commission. enforcement agency investigating Rights Act of 1964, 42 U.S.C. 2000e–16, Jacqueline A. Berrien, criminal conduct, even where the and regulations of the Equal Chair. subject of the investigation is an Employment Opportunity Commission List of Subjects in 29 CFR Part 1635 employee of the covered entity. at 29 CFR 1614.103, an employee of a federal executive agency, the United Administrative practice and § 1635.2 Definitions—general. States Postal Service and the Postal Rate procedure, Equal employment (a) Commission means the Equal Commission, the Tennessee Valley opportunity. Employment Opportunity Commission, Authority, the National Oceanic and ■ For the reasons set forth in the as established by section 705 of the Civil Atmospheric Administration preamble, the EEOC amends 29 CFR Rights Act of 1964, 42 U.S.C. 2000e–4. Commissioned Corps, the Government chapter XIV by adding part 1635 to read (b) Covered Entity means an Printing Office, and the Smithsonian as follows: employer, employing office, Institution; an employee of the federal employment agency, labor organization, judicial branch having a position in the PART 1635—GENETIC INFORMATION or joint labor-management committee. competitive service; and an employee of NONDISCRIMINATION ACT OF 2008 (c) Employee means an individual the Library of Congress. employed by a covered entity, as well as Sec. (d) Employer means any person that 1635.1 Purpose. an applicant for employment and a employs an employee defined in 1635.2 Definitions—general. former employee. An employee, § 1635.2(c) of this part, and any agent of 1635.3 Definitions specific to GINA. including an applicant for employment such person, except that, as limited by 1635.4 Prohibited practices—in general. and a former employee, is: section 701(b)(1) and (2) of the Civil 1635.5 Limiting, segregating, and (1) As defined by section 701 of the Rights Act of 1964, 42 U.S.C. classifying. Civil Rights Act of 1964, 42 U.S.C. 2000e(b)(1) and (2), an employer does 1635.6 Causing a covered entity to 2000e, an individual employed by a not include an Indian tribe, or a bona discriminate. person engaged in an industry affecting fide private club (other than a labor 1635.7 Retaliation. commerce who has fifteen or more organization) that is exempt from 1635.8 Acquisition of genetic information. 1635.9 Confidentiality. employees for each working day in each taxation under section 501(c) of the 1635.10 Enforcement and remedies. of twenty or more calendar weeks in the Internal Revenue Code of 1986. 1635.11 Construction. current or preceding calendar year and (e) Employing office is defined in the 1635.12 Medical information that is not any agent of such a person; Congressional Accountability Act, 2 genetic information. (2) As defined by section 304(a) of the U.S.C. 1301(9), to mean the personal Authority: 110 Stat. 233; 42 U.S.C. 2000ff. Government Employee Rights Act, 42 office of a Member of the House of U.S.C. 2000e–16c(a), a person chosen or Representatives or of a Senator; a § 1635.1 Purpose. appointed by an individual elected to committee of the House of (a) The purpose of this part is to public office by a State or political Representatives or the Senate or a joint implement Title II of the Genetic subdivision of a State to serve as part of committee; any other office headed by a Information Nondiscrimination Act of the personal staff of the elected official, person with the final authority to 2008, 42 U.S.C. 2000ff, et seq. Title II of to serve the elected official on a policy- appoint, hire, discharge, and set the GINA: making level, or to serve the elected terms, conditions, or privileges of the (1) Prohibits use of genetic official as the immediate advisor on the employment of an employee of the information in employment decision- exercise of the elected official’s House of Representatives or the Senate; making; constitutional or legal powers. or the Capitol Guide Board, the Capitol (2) Restricts employers and other (3) As defined by section 101 of the Police Board, the Congressional Budget entities subject to Title II of GINA from Congressional Accountability Act, 2 Office, the Office of the Architect of the

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Capitol, the Office of the Attending (iii) Third-degree relatives include an (i) A test to determine whether Physician, the Office of Compliance, individual’s great-grandparents, great someone has the BRCA1 or BRCA2 and the Office of Technology grandchildren, great uncles/aunts, and variant evidencing a predisposition to Assessment. first cousins. breast cancer, a test to determine (f) Employment agency is defined in (iv) Fourth-degree relatives include an whether someone has a genetic variant 42 U.S.C. 2000e(c) to mean any person individual’s great-great-grandparents, associated with hereditary nonpolyposis regularly undertaking with or without great-great-grandchildren, and first colon cancer, and a test for a genetic compensation to procure employees for cousins once-removed (i.e., the children variant for Huntington’s Disease; an employer or to procure for employees of the individual’s first cousins). (ii) Carrier screening for adults using opportunities to work for an employer (b) Family medical history. Family genetic analysis to determine the risk of and includes an agent of such a person. medical history means information conditions such as cystic fibrosis, sickle (g) Joint labor-management committee about the manifestation of disease or cell anemia, spinal muscular atrophy, or is defined as an entity that controls disorder in family members of the fragile X syndrome in future offspring; apprenticeship or other training or individual. (iii) Amniocentesis and other retraining programs, including on-the- (c) Genetic information. (1) Genetic evaluations used to determine the job training programs. information means information about: presence of genetic abnormalities in a (h) Labor organization is defined at 42 (i) An individual’s genetic tests; fetus during pregnancy; U.S.C. 2000e(d) to mean an organization (ii) The genetic tests of that (iv) Newborn screening analysis that with fifteen or more members engaged individual’s family members; uses DNA, RNA, protein, or metabolite in an industry affecting commerce, and (iii) The manifestation of disease or analysis to detect or indicate genotypes, any agent of such an organization in disorder in family members of the mutations, or chromosomal changes, which employees participate and which individual (family medical history); such as a test for PKU performed so that exists for the purpose, in whole or in (iv) An individual’s request for, or treatment can begin before a disease part, of dealing with employers receipt of, genetic services, or the manifests; concerning grievances, labor disputes, participation in clinical research that (v) Preimplantation genetic diagnosis wages, rates of pay, hours, or other includes genetic services by the performed on embryos created using terms or conditions of employment. individual or a family member of the invitro fertilization; (i) Member includes, with respect to individual; or (vi) Pharmacogenetic tests that detect a labor organization, an applicant for (v) The genetic information of a fetus genotypes, mutations, or chromosomal membership. carried by an individual or by a changes that indicate how an individual will react to a drug or a particular (j) Person is defined at 42 U.S.C. pregnant woman who is a family dosage of a drug; 2000e(a) to mean one or more member of the individual and the (vii) DNA testing to detect genetic individuals, governments, governmental genetic information of any embryo markers that are associated with agencies, political subdivisions, labor legally held by the individual or family information about ancestry; and member using an assisted reproductive unions, partnerships, associations, (viii) DNA testing that reveals family technology. corporations, legal representatives, relationships, such as paternity. mutual companies, joint-stock (2) Genetic information does not (3) The following are examples of companies, trusts, unincorporated include information about the sex or age tests or procedures that are not genetic organizations, trustees, trustees in cases of the individual, the sex or age of tests: under title 11, or receivers. family members, or information about (i) An analysis of proteins or (k) State is defined at 42 U.S.C. the race or ethnicity of the individual or metabolites that does not detect 2000e(i) and includes a State of the family members that is not derived from genotypes, mutations, or chromosomal United States, the District of Columbia, a genetic test. changes; Puerto Rico, the Virgin Islands, (d) Genetic monitoring means the (ii) A medical examination that tests American Samoa, Guam, Wake Island, periodic examination of employees to for the presence of a virus that is not the Canal Zone, and Outer Continental evaluate acquired modifications to their composed of human DNA, RNA, Shelf lands defined in the Outer genetic material, such as chromosomal chromosomes, proteins, or metabolites; Continental Shelf Lands Act (43 U.S.C. damage or evidence of increased (iii) A test for infectious and 1331 et seq.). occurrence of mutations, caused by the communicable diseases that may be toxic substances they use or are exposed § 1635.3 Definitions specific to GINA. transmitted through food handling; to in performing their jobs, in order to (iv) Complete blood counts, (a) Family member means with identify, evaluate, and respond to the cholesterol tests, and liver-function respect to any individual: effects of, or to control adverse tests. (1) A person who is a dependent of environmental exposures in the (4) Alcohol and Drug Testing— that individual as the result of marriage, workplace. (i) A test for the presence of alcohol birth, adoption, or placement for (e) Genetic services. Genetic services or illegal drugs is not a genetic test. adoption; or means a genetic test, genetic counseling (ii) A test to determine whether an (2) A first-degree, second-degree, (including obtaining, interpreting, or individual has a genetic predisposition third-degree, or fourth-degree relative of assessing genetic information), or for alcoholism or drug use is a genetic the individual, or of a dependent of the genetic education. test. individual as defined in § 1635.3(a)(1). (f) Genetic test—(1) In general. (g) Manifestation or manifested (i) First-degree relatives include an ‘‘Genetic test’’ means an analysis of means, with respect to a disease, individual’s parents, siblings, and human DNA, RNA, chromosomes, disorder, or pathological condition, that children. proteins, or metabolites that detects an individual has been or could (ii) Second-degree relatives include an genotypes, mutations, or chromosomal reasonably be diagnosed with the individual’s grandparents, changes. disease, disorder, or pathological grandchildren, uncles, aunts, nephews, (2) Genetic tests include, but are not condition by a health care professional nieces, and half-siblings. limited to: with appropriate training and expertise

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in the field of medicine involved. For or its agent, to discriminate against an other entities covered by GINA Title II purposes of this part, a disease, individual in violation of this part, from requesting or requiring genetic disorder, or pathological condition is including with respect to the information of an individual or family not manifested if the diagnosis is based individual’s participation in an member of the individual, except as principally on genetic information. apprenticeship or other training or specifically allowed by this law. To retraining program, or with respect to a comply with this law, we are asking that § 1635.4 Prohibited practices—in general. member’s participation in a labor you not provide any genetic information (a) It is unlawful for an employer to organization. when responding to this request for discriminate against an individual on medical information. ‘Genetic the basis of the genetic information of § 1635.7 Retaliation. information’ as defined by GINA, the individual in regard to hiring, A covered entity may not discriminate includes an individual’s family medical discharge, compensation, terms, against any individual because such history, the results of an individual’s or conditions, or privileges of employment. individual has opposed any act or family member’s genetic tests, the fact (b) It is unlawful for an employment practice made unlawful by this title or that an individual or an individual’s agency to fail or refuse to refer any because such individual made a charge, family member sought or received individual for employment or otherwise testified, assisted, or participated in any genetic services, and genetic discriminate against any individual manner in an investigation, proceeding, information of a fetus carried by an because of genetic information of the or hearing under this title. individual or an individual’s family individual. member or an embryo lawfully held by (c) It is unlawful for a labor § 1635.8 Acquisition of genetic information. an individual or family member organization to exclude or to expel from receiving assistive reproductive the membership of the organization, or (a) General prohibition. A covered services.’’ otherwise to discriminate against, any entity may not request, require, or (C) A covered entity’s failure to give member because of genetic information purchase genetic information of an such a notice or to use this or similar with respect to the member. individual or family member of the language will not prevent it from (d) It is an unlawful employment individual, except as specifically establishing that a particular receipt of practice for any employer, labor provided in paragraph (b) of this genetic information was inadvertent if organization, or joint labor-management section. ‘‘Request’’ includes conducting its request for medical information was committee controlling apprenticeship or an Internet search on an individual in not ‘‘likely to result in a covered entity other training or retraining programs, a way that is likely to result in a covered obtaining genetic information’’ (for including on-the-job training programs entity obtaining genetic information; example, where an overly broad to discriminate against any individual actively listening to third-party response is received in response to a because of the individual’s genetic conversations or searching an tailored request for medical information in admission to, or individual’s personal effects for the information). employment in, any program purpose of obtaining genetic (D) Situations to which the established to provide apprenticeship or information; and making requests for requirements of subsection (b)(1)(i) other training or retraining. information about an individual’s apply include, but are not limited to the § 1635.5 Limiting, segregating, and current health status in a way that is following: classifying. likely to result in a covered entity (1) Where a covered entity requests (a) A covered entity may not limit, obtaining genetic information. documentation to support a request for segregate, or classify an individual, or (b) Exceptions. The general reasonable accommodation under fail or refuse to refer for employment prohibition against requesting, Federal, State, or local law, as long as any individual, in any way that would requiring, or purchasing genetic the covered entity’s request for such deprive or tend to deprive the information does not apply: documentation is lawful. A request for individual of employment opportunities (1) Where a covered entity documentation supporting a request for or otherwise affect the status of the inadvertently requests or requires reasonable accommodation is lawful individual as an employee, because of genetic information of the individual or only when the disability and/or the genetic information with respect to the family member of the individual. need for accommodation is not obvious; individual. A covered entity will not be (i) Requests for Medical Information: the documentation is no more than is deemed to have violated this section if (A) If a covered entity acquires genetic sufficient to establish that an individual it limits or restricts an employee’s job information in response to a lawful has a disability and needs a reasonable duties based on genetic information request for medical information, the accommodation; and the documentation because it was required to do so by a acquisition of genetic information will relates only to the impairment that the law or regulation mandating genetic not generally be considered inadvertent individual claims to be a disability that monitoring, such as regulations unless the covered entity directs the requires reasonable accommodation; administered by the Occupational and individual and/or health care provider (2) Where an employer requests Safety Health Administration (OSHA). from whom it requested medical medical information from an individual See 1635.8(b)(5) and 1635.11(a). information (in writing, or verbally, as required, authorized, or permitted by (b) Notwithstanding any language in where the covered entity does not Federal, State, or local law, such as this part, a cause of action for disparate typically make requests for medical where an employee requests leave under impact within the meaning of section information in writing) not to provide the Family and Medical Leave Act 703(k) of the Civil Rights Act of 1964, genetic information. (FMLA) to attend to the employee’s own 42 U.S.C. 2000e–2(k), is not available (B) If a covered entity uses language serious health condition or where an under this part. such as the following, any receipt of employee complies with the FMLA’s genetic information in response to the employee return to work certification § 1635.6 Causing a covered entity to request for medical information will be requirements; or discriminate. deemed inadvertent: ‘‘The Genetic (3) Where a covered entity requests A covered entity may not cause or Information Nondiscrimination Act of documentation to support a request for attempt to cause another covered entity, 2008 (GINA) prohibits employers and leave that is not governed by Federal,

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State, or local laws requiring leave, as genetic information from a social media genetic information, but may offer long as the documentation required to platform which he or she was given financial inducements for completion of support the request otherwise complies permission to access by the creator of health risk assessments that include with the requirements of the Americans the profile at issue (e.g., a supervisor questions about family medical history with Disabilities Act and other laws and employee are connected on a social or other genetic information, provided limiting a covered entity’s access to networking site and the employee the covered entity makes clear, in medical information. provides family medical history on his language reasonably likely to be (ii) The exception for inadvertent page). understood by those completing the acquisition of genetic information also (2) Where a covered entity offers health risk assessment, that the applies in, but is not necessarily limited health or genetic services, including inducement will be made available to, situations where— such services offered as part of a whether or not the participant answers (A) A manager, supervisor, union voluntary wellness program. questions regarding genetic information. representative, or employment agency (i) This exception applies only For example: representative learns genetic where— (A) A covered entity offers $150 to information about an individual by (A) The provision of genetic employees who complete a health risk overhearing a conversation between the information by the individual is assessment with 100 questions, the last individual and others; voluntary, meaning the covered entity 20 of them concerning family medical (B) A manager, supervisor, union neither requires the individual to history and other genetic information. representative, or employment agency provide genetic information nor The instructions for completing the representative learns genetic penalizes those who choose not to health risk assessment make clear that information about an individual by provide it; the inducement will be provided to all receiving it from the individual or third- (B) The individual provides prior employees who respond to the first 80 parties during a casual conversation, knowing, voluntary, and written questions, whether or not the remaining including in response to an ordinary authorization, which may include 20 questions concerning family medical expression of concern that is the subject authorization in electronic format. This history and other genetic information of the conversation. For example, the requirement is only met if the covered are answered. This health risk exception applies when the covered entity uses an authorization form that: assessment does not violate Title II of entity, acting through a supervisor or (1) Is written so that the individual GINA. other official, receives family medical from whom the genetic information is (B) Same facts as the previous history directly from an individual being obtained is reasonably likely to example, except that the instructions do following a general health inquiry (e.g., understand it; not indicate which questions request ‘‘How are you?’’ or ‘‘Did they catch it (2) Describes the type of genetic genetic information; nor does the early?’’ asked of an employee who was information that will be obtained and assessment otherwise make clear which just diagnosed with cancer) or a the general purposes for which it will be questions must be answered in order to question as to whether the individual used; and obtain the inducement. This health risk has a manifested condition. Similarly, a (3) Describes the restrictions on assessment violates Title II of GINA. casual question between colleagues, or disclosure of genetic information; (iii) A covered entity may offer between a supervisor and subordinate, (C) Individually identifiable genetic financial inducements to encourage concerning the general well-being of a information is provided only to the individuals who have voluntarily parent or child would not violate GINA individual (or family member if the provided genetic information (e.g., (e.g., ‘‘How’s your son feeling today?’’, family member is receiving genetic family medical history) that indicates ‘‘Did they catch it early?’’ asked of an services) and the licensed health care that they are at increased risk of employee whose family member was professionals or board certified genetic acquiring a health condition in the just diagnosed with cancer, or ‘‘Will counselors involved in providing such future to participate in disease your daughter be OK?’’). However, this services, and is not accessible to management programs or other exception does not apply where an managers, supervisors, or others who programs that promote healthy employer follows up a question make employment decisions, or to lifestyles, and/or to meet particular concerning a family member’s general anyone else in the workplace; and health goals as part of a health or health with questions that are probing (D) Any individually identifiable genetic service. However, to comply in nature, such as whether other family genetic information provided under with Title II of GINA, these programs members have the condition, or whether paragraph (b)(2) of this section is only must also be offered to individuals with the individual has been tested for the available for purposes of such services current health conditions and/or to condition, because the covered entity and is not disclosed to the covered individuals whose lifestyle choices put should know that these questions are entity except in aggregate terms that do them at increased risk of developing a likely to result in the acquisition of not disclose the identity of specific condition. For example: genetic information; individuals (a covered entity will not (A) Employees who voluntarily (C) A manager, supervisor, union violate the requirement that it receive disclose a family medical history of representative, or employment agency information only in aggregate terms if it diabetes, heart disease, or high blood representative learns genetic receives information that, for reasons pressure on a health risk assessment information from the individual or a outside the control of the provider or that meets the requirements of (b)(2)(ii) third-party without having solicited or the covered entity (such as the small of this section and employees who have sought the information (e.g., where a number of participants), makes the a current diagnosis of one or more of manager or supervisor receives an genetic information of a particular these conditions are offered $150 to unsolicited email about the health of an individual readily identifiable with no participate in a wellness program employee’s family member from a co- effort on the covered entity’s part). designed to encourage weight loss and worker); or (ii) Consistent with the requirements a healthy lifestyle. This does not violate (D) A manager, supervisor, union of paragraph (b)(2)(i) of this section, a Title II of GINA. representative, or employment agency covered entity may not offer a financial (B) The program in the previous representative inadvertently learns inducement for individuals to provide example offers an additional

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inducement to individuals who achieve pursuant to a policy (even in the the covered entity uses an authorization certain health outcomes. Participants absence of requirements of Federal, form that: may earn points toward ‘‘prizes’’ totaling State, or local leave laws) that permits (A) Is written so that the individual $150 in a single year for lowering their the use of leave to care for a sick family from whom the genetic information is blood pressure, glucose, and cholesterol member and that requires all employees being obtained is reasonably likely to levels, or for losing weight. This to provide information about the health understand the form; inducement would not violate Title II of condition of the family member to (B) Describes the genetic information GINA. substantiate the need for leave. that will be obtained; and (iv) Nothing contained in (4) Where the covered entity acquires (C) Describes the restrictions on § 1635.8(b)(2)(iii) limits the rights or genetic information from documents disclosure of genetic information; protections of an individual under the that are commercially and publicly (ii) Is conducted in compliance with Americans with Disabilities Act (ADA), available for review or purchase, any Federal genetic monitoring as amended, or other applicable civil including newspapers, magazines, regulations, including any regulations rights laws, or under the Health periodicals, or books, or through that may be promulgated by the Secretary of Labor pursuant to the Insurance Portability and electronic media, such as information Occupational Safety and Health Act of Accountability Act (HIPAA), as communicated through television, 1970 (29 U.S.C. 651 et seq.), the Federal amended by GINA. For example, if an movies, or the Internet, except that this Mine Safety and Health Act of 1977 (30 employer offers a financial inducement exception does not apply— U.S.C. 801 et seq.), or the Atomic Energy for participation in disease management (i) To medical databases, court Act of 1954 (42 U.S.C. 2011 et seq.); or programs or other programs that records, or research databases available State genetic monitoring regulations, in promote healthy lifestyles and/or to scientists on a restricted basis; the case of a State that is implementing require individuals to meet particular (ii) To genetic information acquired health goals, the employer must make genetic monitoring regulations under through sources with limited access, the authority of the Occupational Safety reasonable accommodations to the such as social networking sites and extent required by the ADA, that is, the and Health Act of 1970 (29 U.S.C. 651 other media sources which require et seq.); and employer must make ‘‘modifications or permission to access from a specific adjustments that enable a covered (iii) Provides for reporting of the individual or where access is results of the monitoring to the covered entity’s employee with a disability to conditioned on membership in a enjoy equal benefits and privileges of entity, excluding any licensed health particular group, unless the covered care professional or board certified employment as are enjoyed by its other entity can show that access is routinely similarly situated employees without genetic counselor involved in the granted to all who request it; disabilities’’ unless ‘‘such covered entity genetic monitoring program, only in (iii) To genetic information obtained can demonstrate that the aggregate terms that do not disclose the through commercially and publicly accommodation would impose an identity of specific individuals. available sources if the covered entity undue hardship on the operation of its (6) Where an employer conducts DNA sought access to those sources with the business.’’ 29 CFR 1630.2(o)(1)(iii); 29 analysis for law enforcement purposes intent of obtaining genetic information; CFR 1630.9(a). In addition, if the as a forensic laboratory or for purposes employer’s wellness program provides or of human remains identification and (directly, through reimbursement, or (iv) To genetic information obtained requests or requires genetic information otherwise) medical care (including through media sources, whether or not of its employees, apprentices, or genetic counseling), the program may commercially and publicly available, if trainees, but only to the extent that the constitute a group health plan and must the covered entity is likely to acquire genetic information is used for analysis comply with the special requirements genetic information by accessing those of DNA identification markers for for wellness programs that condition sources, such as Web sites and on-line quality control to detect sample rewards on an individual satisfying a discussion groups that focus on issues contamination and is maintained and standard related to a health factor, such as genetic testing of individuals disclosed in a manner consistent with including the requirement to provide an and genetic discrimination. such use. individual with a ‘‘reasonable (5) Where the covered entity acquires (c) Inquiries Made of Family Members alternative (or waiver of the otherwise genetic information for use in the Concerning a Manifested Disease, applicable standard)’’ under HIPAA, genetic monitoring of the biological Disorder, or Pathological Condition. (1) when ‘‘it is unreasonably difficult due to effects of toxic substances in the A covered entity does not violate this a medical condition to satisfy’’ or workplace. In order for this exception to section when it requests, requires, or ‘‘medically inadvisable to attempt to apply, the covered entity must provide purchases information about a satisfy’’ the otherwise applicable written notice of the monitoring to the manifested disease, disorder, or standard. See section 9802 of the individual and the individual must be pathological condition of an employee, Internal Revenue Code (26 U.S.C. 9802, informed of the individual monitoring member, or apprenticeship program 26 CFR 54.9802–1 and 54.9802–3T), results. The covered entity may not participant whose family member is an section 702 of the Employee Retirement retaliate or otherwise discriminate employee for the same employer, a Income Security Act of 1974 (ERISA) against an individual due to his or her member of the same labor organization, (29 U.S.C. 1182, 29 CFR 2590.702 and refusal to participate in genetic or a participant in the same 2590.702–1), and section 2705 of the monitoring that is not required by apprenticeship program. For example, Public Health Service Act (45 CFR federal or state law. This exception an employer will not violate this section 146.121 and 146.122). further provides that such monitoring: by asking someone whose sister also (3) Where the covered entity requests (i) Is either required by federal or state works for the employer to take a post- family medical history to comply with law or regulation, or is conducted only offer medical examination that does not the certification provisions of the where the individual gives prior include requests for genetic information. Family and Medical Leave Act of 1993 knowing, voluntary and written (2) A covered entity does not violate (29 U.S.C. 2601 et seq.) or State or local authorization. The requirement for this section when it requests, requires, family and medical leave laws, or individual authorization is only met if or purchases genetic information or

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information about the manifestation of a (4) Genetic information that a covered imminent hazard of death or life- disease, disorder, or pathological entity acquires through sources that are threatening illness, provided that the condition of an individual’s family commercially and publicly available, as individual whose family member is the member who is receiving health or provided by, and subject to the subject of the disclosure is notified of genetic services on a voluntary basis. limitations in, 1635.8(b)(4) of this part, such disclosure. For example, an employer does not is not considered confidential genetic (c) Relationship to HIPAA Privacy unlawfully acquire genetic information information, but may not be used to Regulations. Pursuant to § 1635.11(d) of about an employee when it asks the discriminate against an individual as this part, nothing in this section shall be employee’s family member who is described in §§ 1635.4, 1635.5, or construed as applying to the use or receiving health services from the 1635.6 of this part. disclosure of genetic information that is employer if her diabetes is under (5) Genetic information placed in protected health information subject to control. personnel files prior to November 21, the regulations issued pursuant to (d) Medical examinations related to 2009 need not be removed and a section 264(c) of the Health Insurance employment. The prohibition on covered entity will not be liable under Portability and Accountability Act of acquisition of genetic information, this part for the mere existence of the 1996. including family medical history, information in the file. However, the applies to medical examinations related prohibitions on use and disclosure of § 1635.10 Enforcement and remedies. to employment. A covered entity must genetic information apply to all genetic (a) Powers and procedures: The tell health care providers not to collect information that meets the statutory following powers and procedures shall genetic information, including family definition, including genetic apply to allegations that Title II of GINA medical history, as part of a medical information requested, required, or has been violated: examination intended to determine the purchased prior to November 21, 2009. (1) The powers and procedures ability to perform a job, and must take (b) Exceptions to limitations on provided to the Commission, the additional reasonable measures within disclosure. A covered entity that Attorney General, or any person by its control if it learns that genetic possesses any genetic information, sections 705 through 707 and 709 information is being requested or regardless of how the entity obtained through 711 of the Civil Rights Act of required. Such reasonable measures the information (except for genetic 1964, 42 U.S.C. 2000e–4 through 2000e– may depend on the facts and information acquired through 6 and 2000e–8 through 2000e–10, where circumstances under which a request for commercially and publicly available the alleged discrimination is against an genetic information was made, and may sources), may not disclose it except: employee defined in 1635.2(c)(1) of this include no longer using the services of (1) To the employee or member (or part or against a member of a labor a health care professional who family member if the family member is organization; continues to request or require genetic receiving the genetic services) about (2) The powers and procedures information during medical whom the information pertains upon provided to the Commission and any examinations after being informed not receipt of the employee’s or member’s person by sections 302 and 304 of the to do so. written request; Government Employees Rights Act, 42 (e) A covered entity may not use (2) To an occupational or other health U.S.C. 2000e–16b and 2000e–16c, and genetic information obtained pursuant researcher if the research is conducted in regulations at 29 CFR part 1603, to subparagraphs (b) or (c) of this in compliance with the regulations and where the alleged discrimination is section to discriminate, as defined by protections provided for under 45 CFR against an employee as defined in §§ 1635.4, 1635.5, or 1635.6, and must part 46; § 1635.2(c)(2) of this part; keep such information confidential as (3) In response to an order of a court, (3) The powers and procedures required by § 1635.9. except that the covered entity may provided to the Board of Directors of the disclose only the genetic information Office of Compliance and to any person § 1635.9 Confidentiality. expressly authorized by such order; and under the Congressional Accountability (a) Treatment of genetic information. if the court order was secured without Act, 2 U.S.C. 1301 et seq. (including the (1) A covered entity that possesses the knowledge of the employee or provisions of Title 3 of that act, 2 U.S.C. genetic information in writing about an member to whom the information refers, 1381 et seq.), where the alleged employee or member must maintain the covered entity shall inform the discrimination is against an employee such information on forms and in employee or member of the court order defined in § 1635.2(c)(3) of this part; medical files (including where the and any genetic information that was (4) The powers and procedures information exists in electronic forms disclosed pursuant to such order; provided in 3 U.S.C. 451 et seq., to the and files) that are separate from (4) To government officials President, the Commission, or any personnel files and treat such investigating compliance with this title person in connection with an alleged information as a confidential medical if the information is relevant to the violation of section 3 U.S.C. 411(a)(1), record. investigation; where the alleged discrimination is (2) A covered entity may maintain (5) To the extent that such disclosure against an employee defined in genetic information about an employee is made in support of an employee’s § 1635.2(c)(4) of this part; or member in the same file in which it compliance with the certification (5) The powers and procedures maintains confidential medical provisions of section 103 of the Family provided to the Commission, the information subject to section and Medical Leave Act of 1993 (29 Librarian of Congress, and any person 102(d)(3)(B) of the Americans with U.S.C. 2613) or such requirements by section 717 of the Civil Rights Act, Disabilities Act, 42 U.S.C. under State family and medical leave 42 U.S.C. 2000e–16, where the alleged 12112(d)(3)(B). laws; or discrimination is against an employee (3) Genetic information that a covered (6) To a Federal, State, or local public defined in § 1635.2(c)(5) of this part. entity receives orally need not be health agency only with regard to (b) Remedies. The following remedies reduced to writing, but may not be information about the manifestation of a are available for violations of GINA disclosed, except as permitted by this disease or disorder that concerns a sections 202, 203, 204, 205, 206, and part. contagious disease that presents an 207(f):

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(1) Compensatory and punitive health plan or health insurance issuer employers and other GINA Title II damages as provided for, and limited offering group health insurance covered entities are remedied through by, 42 U.S.C. 1981a(a)(1) and (b); coverage in connection with a group GINA Title II. Employers and other (2) Reasonable attorney’s fees, health plan. GINA Title II covered entities would including expert fees, as provided for, (b) Relation to certain Federal laws remain liable for any of their actions and limited by, 42 U.S.C. 1988(b) and governing health coverage. (1) General: that violate Title II, even where those (c); and Nothing in GINA Title II provides for actions involve access to health benefits, (3) Injunctive relief, including enforcement of, or penalties for, because such benefits are within the reinstatement and hiring, back pay, and violation of any requirement or definition of compensation, terms, other equitable remedies as provided prohibition of a covered entity subject to conditions, or privileges of employment. enforcement under: for, and limited by, 42 U.S.C. 2000e– For example, an employer that fires an (i) Amendments made by Title I of 5(g). employee because of anticipated high (c) Posting of Notices. (1) Every GINA. health claims based on genetic covered entity shall post and keep (ii) Section 701(a) of the Employee posted in conspicuous places upon its Retirement Income Security Act (29 information remains subject to liability premises where notices to employees, U.S.C. 1181) (ERISA), section 2704(a) of under Title II. On the other hand, health applicants for employment, and the Public Health Service Act, and plan or issuer provisions or actions members are customarily posted a section 9801(a) of the Internal Revenue related to the imposition of a preexisting notice to be prepared or approved by the Code (26 U.S.C. 9801(a)), as such condition exclusion; a health plan’s or Commission setting forth excerpts from sections apply with respect to genetic issuer’s discrimination in health plan or, summaries of, the pertinent information pursuant to section eligibility, benefits, or premiums based provisions of this regulation and 701(b)(1)(B) of ERISA, section on genetic information; a health plan’s information pertinent to the filing of a 2704(b)(1)(B) of the Public Health or issuer’s request that an individual complaint. Service Act, and section 9801(b)(1)(B) of undergo a genetic test; and/or a health (2) A willful violation of this the Internal Revenue Code, respectively, plan’s or issuer’s collection of genetic requirement shall be punishable by a of such sections, which prohibit a group information remain subject to fine of not more than $100 for each health plan or a health insurance issuer enforcement under Title I exclusively. separate offense. in the group market from imposing a For example: preexisting condition exclusion based § 1635.11 Construction. solely on genetic information, in the (i) If an employer contracts with a (a) Relationship to other laws, absence of a diagnosis of a condition; health insurance issuer to request generally. This part does not— (iii) Section 702(a)(1)(F) of ERISA (29 genetic information, the employer has (1) Limit the rights or protections of U.S.C. 1182(a)(1)(F)), section 2705(a)(6) committed a Title II violation. In an individual under any other Federal, of the Public Health Service Act, and addition, the issuer may have violated State, or local law that provides equal or section 9802(a)(1)(F) of the Internal Title I of GINA. greater protection to an individual than Revenue Code (26 U.S.C. 9802(a)(1)(F)), (ii) If an employer directs his the rights or protections provided for which prohibit a group health plan or a employees to undergo mandatory under this part, including the health insurance issuer in the group genetic testing in order to be eligible for Americans with Disabilities Act of 1990 market from discriminating against health benefits, the employer has (42 U.S.C. 12101 et seq.), the individuals in eligibility and continued committed a Title II violation. Rehabilitation Act of 1973 (29 U.S.C. eligibility for benefits based on genetic (iii) If an employer or union amends 701 et seq.), and State and local laws information; or prohibiting genetic discrimination or (iv) Section 702(b)(1) of ERISA (29 a health plan to require an individual to discrimination on the basis of disability; U.S.C. 1182(b)(1)), section 2705(b)(1) of undergo a genetic test, then the (2) Apply to the Armed Forces the Public Health Service Act, and employer or union is liable for a Repository of Specimen Samples for the section 9802(b)(1) of the Internal violation of Title II. In addition, the Identification of Remains; Revenue Code (26 U.S.C. 9802(b)(1)), as health plan’s implementation of the (3) Limit or expand the protections, such sections apply with respect to requirement may subject the health plan rights, or obligations of employees or genetic information as a health status- to liability under Title I. employers under applicable workers’ related factor, which prohibit a group (c) Relationship to authorities under compensation laws; health plan or a health insurance issuer GINA Title I. GINA Title II does not (4) Limit the authority of a Federal in the group market from discriminating prohibit any group health plan or health department or agency to conduct or against individuals in premium or insurance issuer offering group health sponsor occupational or other health contribution rates under the plan or insurance coverage in connection with a research in compliance with the coverage based on genetic information. group health plan from engaging in any regulations and protections provided for (2) Application. The application of action that is authorized under any paragraph (b)(1) of this section is under 45 CFR part 46; provision of law noted in § 1635.11(b) of intended to prevent Title II causes of (5) Limit the statutory or regulatory this part, including any implementing action from being asserted regarding authority of the Occupational Safety and regulations noted in § 1635.11(b). Health Administration or the Mine matters subject to enforcement under Safety and Health Administration to Title I or the other genetics provisions (d) Relationship to HIPAA Privacy promulgate or enforce workplace safety for group coverage in ERISA, the Public Regulations. This part does not apply to and health laws and regulations; or Health Service Act, and the Internal genetic information that is protected (6) Require any specific benefit for an Revenue Code. The firewall seeks to health information subject to the employee or member or a family ensure that health plan or issuer regulations issued by the Secretary of member of an employee or member provisions or actions are addressed and Health and Human Services pursuant to (such as additional coverage for a remedied through ERISA, the Public section 264(c) of the Health Insurance particular health condition that may Health Service Act, or the Internal Portability and Accountability Act of have a genetic basis) under any group Revenue Code, while actions taken by 1996.

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§ 1635.12 Medical information that is not condition has or may have a genetic (b) Genetic information related to a genetic information. basis or component. manifested disease, disorder, or (a) Medical information about a (2) Notwithstanding paragraph (a)(1) pathological condition. manifested disease, disorder, or of this section, the acquisition, use, and Notwithstanding paragraph (a) of this pathological condition. (1) A covered disclosure of medical information that is section, genetic information about a entity shall not be considered to be in not genetic information about a manifested disease, disorder, or violation of this part based on the use, manifested disease, disorder, or pathological condition is subject to the acquisition, or disclosure of medical pathological condition is subject to requirements and prohibitions in information that is not genetic applicable limitations under sections sections 202 through 206 of GINA and information about a manifested disease, 103(d)(1)–(4) of the Americans with §§ 1635.4 through 1635.9 of this part. disorder, or pathological condition of an Disabilities Act (42 U.S.C. 12112(d)(1)– employee or member, even if the (4)), and regulations at 29 CFR 1630.13, [FR Doc. 2010–28011 Filed 11–8–10; 8:45 am] disease, disorder, or pathological 1630.14, and 1630.16. BILLING CODE 6570–01–P

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Reader Aids Federal Register Vol. 75, No. 216 Tuesday, November 9, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

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 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 5 CFR Presidential Documents Executive orders and proclamations 741–6000 3 CFR 302...... 67589 330...... 67589 The United States Government Manual 741–6000 Proclamations: 8590...... 67897 335...... 67589 Other Services 8591...... 67899 337...... 67589 Electronic and on-line services (voice) 741–6020 8592...... 67901 410...... 67589 Privacy Act Compilation 741–6064 8593...... 67903 1601...... 68169 Public Laws Update Service (numbers, dates, etc.) 741–6043 8594...... 67905 Proposed Rules: TTY for the deaf-and-hard-of-hearing 741–6086 8595...... 67907 731...... 68222 8596...... 68153 6 CFR 8597...... 68167 ELECTRONIC RESEARCH Executive Orders: 5...... 67909 World Wide Web 13481 (revoked by 7 CFR Full text of the daily Federal Register, CFR and other publications 13557) ...... 68679 920...... 67605 is located at: http://www.gpoaccess.gov/nara/index.html 13556...... 68675 13557...... 68679 983...... 68681 Federal Register information and research tools, including Public Administrative Orders: 993...... 67607 Inspection List, indexes, and links to GPO Access are located at: 1215...... 67609 http://www.archives.gov/federallregister Memorandums: Memorandum of Proposed Rules: E-mail September 20, 205...... 68505 924...... 68510 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 2010 ...... 67023 1214...... 68512, 68529 an open e-mail service that provides subscribers with a digital Memorandum of 1245...... 68728 form of the Federal Register Table of Contents. The digital form September 23, of the Federal Register Table of Contents includes HTML and 2010 ...... 67025 10 CFR PDF links to the full text of each document. Memorandum of May 7, 2008 (revoked by Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select EO 13556)...... 68675 73...... 67636 Online mailing list archives, FEDREGTOC-L, Join or leave the list Notices: 431...... 67637 (or change settings); then follow the instructions. Notice of November 1, 12 CFR PENS (Public Law Electronic Notification Service) is an e-mail 2010 ...... 67587 service that notifies subscribers of recently enacted laws. Notice of November 4, Proposed Rules: 226...... 67458 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 2010 ...... 68673 615...... 68533 and select Join or leave the list (or change settings); then follow Presidential 965...... 68534 the instructions. Determinations: No. 2010-11 of August 966...... 68534 FEDREGTOC-L and PENS are mailing lists only. We cannot 10, 2010 ...... 67011 969...... 68534 respond to specific inquiries. No. 2010-11 of August 987...... 68534 Reference questions. Send questions and comments about the 10, 2010 1270...... 68534 Federal Register system to: [email protected] (correction) ...... 68405 14 CFR The Federal Register staff cannot interpret specific documents or No. 2010-12 of August 25...... 67201 regulations. 26, 2010 ...... 67013 No. 2010-12 of August 39 ...... 67611, 67613, 68169, Reminders. Effective January 1, 2009, the Reminders, including 26, 2010 68172, 68174, 68177, 68179, Rules Going Into Effect and Comments Due Next Week, no longer (correction) ...... 68407 68181, 68185, 68682, 68684, appear in the Reader Aids section of the Federal Register. This No. 2010-14 of 68686, 68688, 68690, 69693, information can be found online at http://www.regulations.gov. September 3, 68695, 68698 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 2010 ...... 67015 71 ...... 67910, 67911, 68415, longer appears in the Federal Register. This information can be No. 2010-14 of 68416, 68701 found online at http://bookstore.gpo.gov/. September 3, 2010 95...... 67210 (correction) ...... 68409 121...... 68189 FEDERAL REGISTER PAGES AND DATE, NOVEMBER No. 2010-15 of Proposed Rules: September 10, 5...... 68224 67011–67200...... 1 2010 ...... 67017 39 ...... 67253, 67637, 67639, 67201–67588...... 2 No. 2010-15 of 68245, 68246, 68543, 68548, 67589–67896...... 3 September 10, 2010 68728, 68731 (correction) ...... 68411 65...... 68249 67897–68168...... 4 No. 2010-16 of 71 ...... 68551, 68552, 68554, 68169–68404...... 5 September 15, 68555, 68556, 68557, 68558 68405–68674...... 8 2010 ...... 67019 119...... 68224 68675–68940...... 9 No. 2010-16 of September 15, 2010 15 CFR (correction) ...... 68413 748...... 67029

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902...... 68199 29 CFR 68272, 68279, 68285, 68291, Proposed Rules: 1635...... 68912 68294, 68570 67 ...... 67304, 67310, 67317, 16 CFR 1926...... 68429 60...... 68296 68738, 68744 1...... 68416 4003...... 68203 63...... 67676 47 CFR 305...... 67615 4903...... 68203 80...... 68044 Proposed Rules: 81 ...... 67303, 68733, 68736 74...... 67227 437...... 68559 31 CFR 85...... 67059 78...... 67227 86...... 67059, 68575 1512...... 67043 510...... 67912 Proposed Rules: 1632...... 67047 152...... 68297 1...... 67060 32 CFR 261...... 67919 9...... 67321 17 CFR 706...... 68213 450...... 68305 20...... 67321 721...... 68306 242...... 68702 64...... 67333 33 CFR 1033...... 68575 73...... 67077 Proposed Rules: 1036...... 67059 Ch. I ...... 67301 100...... 67214 117...... 68704 1037...... 67059 48 CFR 1...... 67254, 67642 1039...... 68575 4...... 67254 165 ...... 67032, 67216, 67618, 237...... 67632 67620 1042...... 68575 15...... 67258 1045...... 68575 252...... 67632 Proposed Rules: 20...... 67258 1054...... 68575 970...... 68217 165...... 67673 30...... 67642 1065...... 67059, 68575 167...... 68568 39...... 67277 1066...... 67059 49 CFR 40...... 67282 34 CFR 1068...... 67059 39...... 68467 140...... 67277 600...... 67170 225...... 68862 180...... 67657 41 CFR 325...... 67634 240...... 68560 668...... 67170 682...... 67170 300-3...... 67629 393...... 67634 571...... 67233 20 CFR 685...... 67170 301-30...... 67629 301-31...... 67629 Proposed Rules: Proposed Rules: 39 CFR Appendix E to Ch. 523...... 67059, 68312 655...... 67662 111...... 68430 301 ...... 67629 534...... 67059, 68312 302-3...... 67629 535...... 67059, 68312 21 CFR 40 CFR 302-4...... 67629 520...... 67031 52...... 67623, 68447 302-6...... 67629 50 CFR 892...... 68200 63...... 67625 303-70...... 67629 17...... 67512, 68719 Proposed Rules: 81...... 67220 229...... 68468 42 CFR 1308...... 67054 86...... 68448 300...... 68725 180...... 68214 Proposed Rules: 600...... 67247 23 CFR 450...... 68215 5...... 67303 622...... 67247 511...... 68418 1033...... 68448 433...... 68583 635...... 67251 1039...... 68448 660...... 67032 27 CFR 1042...... 68448 43 CFR 665...... 68199 9...... 67616 1045...... 68448 4...... 68704 679...... 68726 Proposed Rules: 1054...... 68448 Proposed Rules: 4 ...... 67663, 67666, 67669 1065...... 68448 44 CFR 17 ...... 67341, 67552, 67676, 5...... 67669 Proposed Rules: 64...... 68704 67925 7...... 67669 52 ...... 68251, 68259, 68265, 67...... 68710, 68714 660...... 67810

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Superintendent of Documents, (Oct. 15, 2010; 124 Stat. U.S. Government Printing 3033) LIST OF PUBLIC LAWS Office, Washington, DC 20402 Public Laws Electronic (phone, 202–512–1808). The S. 3196/P.L. 111–283 Notification Service This is a continuing list of text will also be made (PENS) public bills from the current available on the Internet from Pre-Election Presidential session of Congress which GPO Access at http:// Transition Act of 2010 (Oct. have become Federal laws. It www.gpoaccess.gov/plaws/ 15, 2010; 124 Stat. 3045) PENS is a free electronic mail may be used in conjunction index.html. Some laws may notification service of newly with ‘‘P L U S’’ (Public Laws enacted public laws. To not yet be available. S. 3802/P.L. 111–284 Update Service) on 202–741– subscribe, go to http:// 6043. This list is also H.R. 3619/P.L. 111–281 Mount Stevens and Ted listserv.gsa.gov/archives/ available online at http:// publaws-l.html Stevens Icefield Designation www.archives.gov/federal- Coast Guard Authorization Act register/laws.html. of 2010 (Oct. 15, 2010; 124 Act (Oct. 18, 2010; 124 Stat. Note: This service is strictly Stat. 2905) 3050) for E-mail notification of new The text of laws is not laws. The text of laws is not S. 1510/P.L. 111–282 published in the Federal Last List October 18, 2010 available through this service. Register but may be ordered United States Secret Service PENS cannot respond to in ‘‘slip law’’ (individual Uniformed Division specific inquiries sent to this pamphlet) form from the Modernization Act of 2010 address.

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