Vol. 76 Wednesday, No. 240 December 14, 2011

Pages 77669–77894

OFFICE OF THE FEDERAL REGISTER

VerDate Mar 15 2010 19:44 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\14DEWS.LOC 14DEWS mstockstill on DSK4VPTVN1PROD with FEDREGWS II Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011

The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office of the Federal Register, National Archives and Records PUBLIC Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.ofr.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge at www.fdsys.gov, a service of the U.S. Government Printing Office. The online edition of the Federal Register is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6:00 a.m. each day the Federal Register is published and includes both text and graphics from Volume 59, 1 (January 2, 1994) forward. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800 or 866-512-1800 (toll free). E-mail, [email protected]. The annual subscription price for the Federal Register paper edition is $749 plus postage, or $808, plus postage, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $165, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Printing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1- 866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 76 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

.

VerDate Mar 15 2010 19:44 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\14DEWS.LOC 14DEWS mstockstill on DSK4VPTVN1PROD with FEDREGWS III

Contents Federal Register Vol. 76, No. 240

Wednesday, December 14, 2011

Agency for Healthcare Research and Quality PROPOSED RULES NOTICES Process for Designated Contract Market or Swap Execution Scientific Information Request on CYP2C19 Variants and Facility To Make Swap Available To Trade, 77728– Platelet Reactivity Tests, 77833–77834 77738 Scientific Information Request on Intravascular Diagnostic and Imaging Medical Devices, 77834–77835 Defense Department NOTICES Agriculture Department 36(b)(1) Arms Sales, 77809–77811 See Forest Service Privacy Act; Computer Matching Programs, 77811–77812 NOTICES Agency Information Collection Activities; Proposals, Drug Enforcement Administration Submissions, and Approvals, 77767–77768 NOTICES Manufacturers of Controlled Substances; Applications, Alcohol and Tobacco Tax and Trade Bureau 77850 RULES Establishment of Coombsville Viticultural Area, 77677– Education Department 77684 NOTICES Establishment of Fort Ross-Seaview Viticultural Area, Agency Information Collection Activities; Proposals, 77684–77696 Submissions, and Approvals, 77812–77813 Establishment of Naches Heights Viticultural Area, 77696– 77699 Energy Department See Federal Energy Regulatory Commission Architectural and Transportation Barriers Compliance Board Environmental Protection Agency RULES PROPOSED RULES Approvals and Promulgations of Implementation Plans: Telecommunications Act Accessibility Guidelines: State of Missouri, 77701–77703 Electronic and Information Technology Accessibility Pesticide Tolerances: Standards, 77738 Hexythiazox, 77703–77709 Tolerance Exemptions: Bureau of Consumer Financial Protection Butyl acrylate-methacrylic acid-styrene polymer, 77709– NOTICES 77712 Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 77766–77767 Approval and Promulgation of Air Quality Implementation Plans: Centers for Disease Control and Prevention Massachusetts and New Hampshire; Determination of NOTICES Attainment of the One-Hour Ozone Standard, 77739– Agency Information Collection Activities; Proposals, 77742 Submissions, and Approvals, 77835–77836 Approvals and Promulgations of Implementation Plans: State of Missouri, 77742 Children and Families Administration Guidelines Establishing Test Procedures for the Analysis of NOTICES Pollutants: Agency Information Collection Activities; Proposals, Clean Water Act; Analysis and Sampling Procedures; Submissions, and Approvals: Data Availability, 77742–77747 Financial Status Reporting Form for State Councils on NOTICES Developmental Disabilities Program, 77836 Access to Confidential Business Information: Guident Technologies, Inc. and Subcontractor, Impact Coast Guard Innovations Systems, Inc., 77816–77817 RULES Access to Confidential Business Information; Seagoing Barges, 77712–77716 Authorizations: CGI Federal, Inc. and Subcontractor, Innovate, Inc., 77817 Commerce Department Agency Information Collection Activities; Proposals, See Foreign-Trade Zones Board Submissions, and Approvals, 77817–77820 See International Trade Administration Agency Information Collection Activities; Proposals, See National Oceanic and Atmospheric Administration Submissions, and Approvals: NSPS for Metallic Mineral Processing Plants (Renewal), Commodity Futures Trading Commission 77823–77824 RULES State Operating Permit Program (Renewal) and Federal Retail Commodity Transactions Under Commodity Operating Permit Program (Renewal), 77820–77823 Exchange Act: Cancellation Orders for Certain Pesticide Registrations: Interpretation; Request for Comments, 77670–77672 Dicofol, 77824–77825

VerDate Mar<15>2010 19:42 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN mstockstill on DSK4VPTVN1PROD with FEDREGCN IV Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Contents

Meetings: Forest Service Human Studies Review Board; Public Teleconference, NOTICES 77825–77827 Agency Information Collection Activities; Proposals, Petitions for Objections to State Operating Permits: Submissions, and Approvals: Murphy Oil USA, Inc., Meraux Refinery in St. Bernard Flathead and McKenzie Rivers and McKenzie National Parish, LA, 77827–77828 Recreational Trail Visitor Surveys, 77768–77769 Regulation of Fuel and Fuel Additives: Environmental Impact Statements; Availability, etc.: Modification to Octamix Waiver, 77828–77829 North Finger Grazing Authorization Project, Malheur Research Reports; Availability: National Forest, Grant County, OR, 77769 Investigation of Ground Water Contamination Near Pavillion, WY, 77829–77830 Health and Human Services Department See Agency for Healthcare Research and Quality Federal Aviation Administration See Centers for Disease Control and Prevention RULES See Children and Families Administration Amendments of Class D and E Airspace: See Food and Drug Administration North Philadelphia, PA, 77669–77670 See Health Resources and Services Administration PROPOSED RULES See National Institutes of Health Amendment of Class E Airspace: NOTICES Pelion, SC; Withdrawal, 77727 Meetings: Proposed Amendments and Proposed Establishments of Peer Review Draft NTP Technical Reports; Availability; Class E Airspace: Request for Comments, 77832–77833 Columbia, SC and Pelion, SC, 77727–77728 NOTICES Health Resources and Services Administration Passenger Facility Charge (PFC) Approvals and NOTICES Disapprovals, 77887–77888 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 77839–77840 Federal Communications Commission Statements of Organization, Functions and Delegations of PROPOSED RULES Authority, 77840–77841 Hearing Aid-Compatible Mobile Handsets; Amendments, 77747–77757 Homeland Security Department NOTICES See Coast Guard Meetings; Sunshine Act, 77830–77831 Housing and Urban Development Department Federal Election Commission NOTICES NOTICES Funding Awards; Fiscal Year 2011: 2012 Presidential Candidate Matching Fund Submission Indian Community Development Block Grant Program, Dates, etc., 77831–77832 77842–77846

Federal Energy Regulatory Commission Interior Department NOTICES See Land Management Bureau Combined Filings, 77813–77814 Environmental Assessments; Availability, etc.: Internal Revenue Service Cameron LNG, LLC; BOG Liquefaction Project, 77814– RULES 77815 Employer’s Annual Federal Tax Return and Modifications Initial Market-Based Rate Filings Including Requests for to Deposit Rules, 77672–77677 Blanket Section 204 Authorization: NOTICES Ethical Electric Benefit Co., 77815–77816 Meetings: Taxpayer Advocacy Panel Bankruptcy Compliance Federal Railroad Administration Project Committee, 77891 RULES Taxpayer Advocacy Panel Refund Processing Alternate Passenger Rail Service Pilot Program, 77716– Communications Project Committee, 77892–77893 77726 Taxpayer Advocacy Panel Return Processing Delays Project Committee, 77891–77892 Food and Drug Administration Taxpayer Advocacy Panel Small Business/Self-Employed NOTICES Decreasing Non-Filers Project Committee, 77893 Agency Information Collection Activities; Proposals, Taxpayer Advocacy Panel Tax Forms and Publications Submissions, and Approvals: Project Committee, 77892 Experimental Study on Public Display of Lists of Harmful Taxpayer Advocacy Panel Taxpayer Burden Reduction and Potentially Harmful Tobacco Constituents, Project Committee, 77892 77837–77838 Taxpayer Advocacy Panel Toll-Free Project Committee, Notification of Health Claim Based on Authoritative 77892 Statement of Scientific Body, 77838–77839 International Trade Administration Foreign-Trade Zones Board NOTICES NOTICES Antidumping Duty Administrative Reviews; Results, Applications for Expansion: Extensions, Amendments, etc.: Foreign-Trade Zone 49, Newark/Elizabeth, NJ, 77769– Certain Circular Welded Non-Alloy Steel Pipe From 77770 Mexico, 77770–77772

VerDate Mar<15>2010 19:42 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN mstockstill on DSK4VPTVN1PROD with FEDREGCN Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Contents V

Citric Acid and Certain Citrate Salts From People’s Takes of Marine Mammals Incidental to Specified Republic of China, 77772–77775 Activities: Applications for Duty Free Entry of Electron Microscopes: Marine Geophysical Survey in Commonwealth of University of Florida, et al., 77775 Northern Mariana Islands, February to March, 2012, Countervailing Duty Administrative Reviews; Results, 77782–77806 Extensions, Amendments, etc.: U.S. Fish Quotas in Northwest Atlantic Fisheries Certain Hot-Rolled Carbon Steel Flat Products From Organization Regulatory Area; International Affairs, India, 77775–77776 77806–77809 Corrosion-Resistant Carbon Steel Flat Products From Republic of Korea, 77775 National Science Foundation Meetings: NOTICES Environmental Technologies Trade Advisory Committee, Agency Information Collection Activities; Proposals, 77776–77777 Submissions, and Approvals, 77852–77854 North American Free Trade Agreement, Article 1904 Binational Panel Reviews: Nuclear Regulatory Commission Completion of Panel Review, 77777–77778 NOTICES Termination of Panel Review, 77777 Criteria for Identifying Material Licensees for Action Requests for Nominations: Review Meeting, 77855 Advisory Committee on Supply Chain Competitiveness, Environmental Impact Statements; Availability, etc.: 77778–77779 Detroit Edison Co. Combined License for Unit 3, Enrico Fermi Atomic Power Plant Site, 77855–77856 Justice Department See Drug Enforcement Administration Occupational Safety and Health Administration NOTICES NOTICES Lodgings of Consent Decrees Under CERCLA, 77846 Agency Information Collection Activities; Proposals, Privacy Act; Systems of Records, 77846–77850 Submissions, and Approvals: Permit-Required Confined Spaces, 77850–77852 Labor Department See Occupational Safety and Health Administration Postal Regulatory Commission NOTICES Land Management Bureau International Mail Price Change for Inbound Air Parcel NOTICES Post, 77856–77857 Filings of Plats of Surveys: Eastern States, 77846 Securities and Exchange Commission NOTICES National Institutes of Health Applications: NOTICES Seasons Series Trust, et al., 77857–77859 Meetings: Self-Regulatory Organizations; Proposed Rule Changes: Center for Scientific Review, 77841–77842 Chicago Board Options Exchange, Inc., 77878–77881 National Institute on Alcohol Abuse and Alcoholism, EDGA Exchange, Inc., 77877–77878 77841 Fixed Income Clearing Corp., 77861–77862 Fixed Income Clearing Corp.; Correction, 77865 National Labor Relations Board International Securities Exchange, LLC, 77881–77883 RULES Municipal Securities Rulemaking Board, 77865–77877 Special Procedural Rules Governing Periods When the NASDAQ OMX BX, Inc., 77862–77863 National Labor Relations Board Lacks a Quorum of NASDAQ OMX PHLX LLC, 77877 Members, 77699–77701 NASDAQ Stock Market LLC, 77863–77865, 77883–77887 NYSE Arca, Inc., 77859–77861 National Oceanic and Atmospheric Administration RULES Surface Transportation Board Research Area Within Grays Reef National Marine NOTICES Sanctuary; Effective Date, 77670 Acquisitions of Control: PROPOSED RULES Student Transportation of America, Inc. for Dairyland Fisheries of Exclusive Economic Zone Off Alaska: Buses, Inc., 77888–77889 Chinook Salmon Bycatch Management in Gulf of Alaska Continuances in Control Exemptions: Pollock Fishery; Amendment 93, 77757–77765 Watco Holdings, Inc.; Swan Ranch Railroad, L.L.C., NOTICES 77889–77890 Applications: Operation Exemptions: Fagatele Bay National Marine Sanctuary Advisory Swan Ranch Railroad, L.L.C. Within Swan Industrial Council, 77780 Park, 77890 Northwestern Hawaiian Islands Coral Reef Ecosystem Petitions for Declaratory Orders: Reserve Advisory Council, 77779–77780 Union Pacific Railroad Co., 77890–77891 Permits: Endangered Species; File No. 10022; Modification, Transportation Department 77780–77781 See Federal Aviation Administration Endangered Species; File No. 15802, 77781 See Federal Railroad Administration Marine Mammals; File No. 781–1824; Amendment, 77782 See Surface Transportation Board

VerDate Mar<15>2010 19:42 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN mstockstill on DSK4VPTVN1PROD with FEDREGCN VI Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Contents

Treasury Department See Alcohol and Tobacco Tax and Trade Bureau See Internal Revenue Service Reader Aids Veterans Affairs Department Consult the Reader Aids section at the end of this page for NOTICES phone numbers, online resources, finding aids, reminders, Agency Information Collection Activities; Proposals, and notice of recently enacted public laws. Submissions, and Approvals: To subscribe to the Federal Register Table of Contents Monthly Statement of Wages Paid to Trainee, 77893– LISTSERV electronic mailing list, go to http:// 77894 listserv.access.gpo.gov and select Online mailing list Request for Supplies (Chapter 31–Vocational archives, FEDREGTOC-L, Join or leave the list (or change Rehabilitation), 77893 settings); then follow the instructions.

VerDate Mar<15>2010 19:42 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00004 Fmt 4748 Sfmt 4748 E:\FR\FM\14DECN.SGM 14DECN mstockstill on DSK4VPTVN1PROD with FEDREGCN Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Contents VII

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.

14 CFR 71...... 77669 Proposed Rules: 71 (2 documents) ...... 77727 15 CFR 922...... 77670 17 CFR 1...... 77670 Proposed Rules: 37...... 77728 38...... 77728 26 CFR 31...... 77672 27 CFR 9 (3 documents) ...... 77677, 77684, 77696 29 CFR 102...... 77699 36 CFR Proposed Rules: 1193...... 77738 1194...... 77738 40 CFR 52...... 77701 70...... 77701 180 (2 documents) ...... 77703, 77709 Proposed Rules: 52 (2 documents) ...... 77739, 77742 70...... 77742 136...... 77742 46 CFR 2...... 77712 24...... 77712 30...... 77712 70...... 77712 90...... 77712 91...... 77712 188...... 77712 47 CFR Proposed Rules: 20...... 77747 49 CFR 269...... 77716 50 CFR Proposed Rules: 679...... 77757

VerDate Mar 15 2010 19:45 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\14DELS.LOC 14DELS mstockstill on DSK4VPTVN1PROD with FEDREGLS 77669

Rules and Regulations Federal Register Vol. 76, No. 240

Wednesday, December 14, 2011

This section of the FEDERAL REGISTER to amend Class D and Class E airspace (3) does not warrant preparation of a contains regulatory documents having general at Northeast Philadelphia Airport, North Regulatory Evaluation as the anticipated applicability and legal effect, most of which Philadelphia, PA. (76 FR 49383). impact is so minimal. Since this is a are keyed to and codified in the Code of Interested parties were invited to routine matter that will only affect air Federal Regulations, which is published under participate in this rulemaking effort by traffic procedures and air navigation, it 50 titles pursuant to 44 U.S.C. 1510. submitting written comments on the is certified that this rule, when The Code of Federal Regulations is sold by proposal to the FAA. No comments promulgated, would not have a the Superintendent of Documents. Prices of were received. Subsequent to significant economic impact on a new books are listed in the first FEDERAL publication, the FAA found a substantial number of small entities REGISTER issue of each week. typographic error in the regulatory text under the criteria of the Regulatory for the radius of the controlled airspace Flexibility Act. listed for Class E surface airspace, and The FAA’s authority to issue rules DEPARTMENT OF TRANSPORTATION makes the correction from a 5-mile regarding aviation safety is found in radius to a 5.6-mile radius of the airport, Title 49 of the United States Code. Federal Aviation Administration and also removes reference to the Subtitle I, Section 106 describes the ceiling level that was cited in error. authority of the FAA Administrator. 14 CFR Part 71 Also, the geographic coordinates of the Subtitle VII, Aviation Programs, [Docket No. FAA–2011–0625; Airspace airport are adjusted. describes in more detail the scope of the Docket No. 11–AEA–16] Class D and E airspace designations agency’s authority. are published in paragraphs 5000 and This rulemaking is promulgated Amendment of Class D and E 6002, respectively, of FAA Order under the authority described in Airspace; North Philadelphia, PA 7400.9V dated August 9, 2011, and Subtitle VII, Part, A, Subpart I, Section AGENCY: Federal Aviation effective September 15, 2011, which is 40103. Under that section, the FAA is Administration (FAA), DOT. incorporated by reference in 14 CFR charged with prescribing regulations to ACTION: Final rule. 71.1. The Class D and Class E airspace assign the use of airspace necessary to designations listed in this document ensure the safety of aircraft and the SUMMARY: This action amends Class D will be published subsequently in the efficient use of airspace. This regulation and Class E airspace at Northeast Order. is within the scope of that authority as Philadelphia Airport, North it amends Class D and E airspace at The Rule Philadelphia, PA, due to the closing of Northeast Philadelphia Airport, North Willow Grove Naval Air Station and This action amends Title 14, Code of Philadelphia, PA. Warminster Naval Air Warfare Center Federal Regulations (14 CFR) part 71 to (NAWC). This action also corrects a amend Class D airspace and Class E Lists of Subjects in 14 CFR Part 71 typographic error in the regulatory text surface airspace at Northeast Airspace, Incorporation by reference, for the Class E airspace radius and Philadelphia Airport, North Navigation (air). ceiling level, and adjusts the geographic Philadelphia, PA. The Class D and Class Adoption of the Amendment coordinates of the airport. This action E surface airspace is reconfigured due to enhances the safety and airspace the closing of the Willow Grove Naval In consideration of the foregoing, the management of Instrument Flight Rules Air Station and Warminster NAWC. The Federal Aviation Administration (IFR) operations in the North boundary radius of the controlled amends 14 CFR part 71 as follows: Philadelphia, PA, airspace area. airspace listed in the regulatory text for DATES: Effective date: 0901 UTC, Class E airspace is corrected from a PART 71—DESIGNATION OF CLASS A, February 9, 2012. The Director of the 5-mile radius to a 5.6-mile radius of the B, C, D, AND E AIRSPACE AREAS; AIR Federal Register approves this airport and reference to the ceiling level TRAFFIC SERVICE ROUTES; AND incorporation by reference action under listed for Class E airspace is removed. REPORTING POINTS title 1, Code of Federal Regulations, part Also, the geographic coordinates of the ■ 1. The authority citation for part 71 51, subject to the annual revision of airport are adjusted to be in concert continues to read as follows: FAA Order 7400.9 and publication of with the FAAs aeronautical database. conforming amendments. This action enhances the safety and Authority: 49 U.S.C. 106(g); 40103, 40113, FOR FURTHER INFORMATION CONTACT: John management of IFR operations at the 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. Fornito, Airspace Specialist, Operations airport. Support Group, Eastern Service Center, The FAA has determined that this § 71.1 [Amended] Air Traffic Organization, Federal regulation only involves an established ■ 2. The incorporation by reference in Aviation Administration, P.O. Box body of technical regulations for which 14 CFR 71.1 of Federal Aviation 20636, Atlanta, Georgia 30320; frequent and routine amendments are Administration Order 7400.9V, Airspace telephone (404) 305–6364. necessary to keep them operationally Designations and Reporting Points, SUPPLEMENTARY INFORMATION: current. It, therefore, (1) is not a dated August 9, 2011, and effective ‘‘significant regulatory action’’ under History September 15, 2011, is amended as Executive Order 12866; (2) is not a follows: On August 10, 2011, the FAA ‘‘significant rule’’ under DOT published in the Federal Register a Regulatory Policies and Procedures Paragraph 5000 Class D Airspace. notice of proposed rulemaking (NPRM) (44 FR 11034; February 26, 1979); and * * * * *

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77670 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

AEA PA D North Philadelphia, PA October 14, 2011. Through this notice, FOR FURTHER INFORMATION CONTACT: [Amended] NOAA is announcing the regulations Rosemary Hollinger, Regional Counsel, Northeast Philadelphia Airport, Philadelphia, became effective on December 4, 2011. Division of Enforcement, (312) 596– PA DATES: Effective Date: The regulations 0538, [email protected], or Martin B. ° ′ ″ ° ′ ″ (Lat. 40 04 55 N., long. 75 00 38 W.) published on October 14, 2011 (76 FR White, Assistant General Counsel, That airspace extending upward from the 63824) are effective on December 4, Office of the General Counsel, (202) surface to and including 2,600 feet MSL 2011. 418–5129, [email protected], Commodity within a 5.6-mile radius of the Northeast FOR FURTHER INFORMATION CONTACT: Futures Trading Commission, Three Philadelphia Airport. This Class D airspace Lafayette Centre, 1155 21st Street NW., area is effective during the specific dates and Resource Protection Coordinator Becky times established in advance by a Notice to Shortland at (912) 598–2381. Washington, DC 20581. All comments must be submitted in Airmen. The effective date and time will Dated: December 5, 2011. thereafter be continuously published in the English, or, if not, accompanied by an Airport/Facility Directory. Holly A. Bamford, English translation. Comments will be Deputy Assistant Administrator for Ocean posted as received to http:// Paragraph 6002 Class E airspace designated Services and Coastal Zone Management. www.cftc.gov. You should submit only as surface areas. [FR Doc. 2011–31918 Filed 12–13–11; 8:45 am] information that you wish to make * * * * * BILLING CODE 3510–NK–M available publicly. If you wish the AEA PA E2 North Philadelphia, PA Commission to consider information [Amended] that may be exempt from disclosure Northeast Philadelphia Airport, Philadelphia, COMMODITY FUTURES TRADING under the Freedom of Information Act PA COMMISSION (‘‘FOIA’’),1 a petition for confidential (Lat. 40°04′55″ N., long. 75°00′38″ W.) treatment of the exempt information That airspace extending upward from the 17 CFR Part 1 may be submitted according to the surface within a 5.6-mile radius of the RIN 3038–AD64 established procedures in § 145.9 of the Northeast Philadelphia Airport. This Class E CFTC’s regulations.2 The Commission airspace area is effective during the specific Retail Commodity Transactions Under reserves the right, but shall have no dates and times established in advance by a Commodity Exchange Act obligation, to review, prescreen, filter, Notice to Airmen. The effective date and time redact, refuse, or remove any or all of will thereafter be continuously published in AGENCY: Commodity Futures Trading the Airport/Facility Directory. your submission from http:// Commission. www.cftc.gov that it may deem to be Issued in College Park, Georgia, on ACTION: Interpretation; Request for inappropriate for publication, such as November 29, 2011. comments. obscene language. All submissions that Mark D. Ward, SUMMARY: The Commodity Futures have been redacted or removed that Manager, Operation Support Group, Eastern contain comments on the merits of the Service Center, Air Traffic Organization. Trading Commission (‘‘Commission’’ or ‘‘CFTC’’) is issuing this interpretation of rulemaking will be retained in the [FR Doc. 2011–31854 Filed 12–13–11; 8:45 am] the term ‘‘actual delivery’’ as set forth in public comment file and will be BILLING CODE 4910–13–P section 2(c)(2)(D)(ii)(III)(aa) of the considered as required under the Commodity Exchange Act (‘‘CEA’’) Administrative Procedure Act and other pursuant to section 742(a) of the Dodd- applicable laws, and may be accessible DEPARTMENT OF COMMERCE Frank Wall Street Reform and Consumer under FOIA. Protection Act. The Commission SUPPLEMENTARY INFORMATION: National Oceanic and Atmospheric requests comment on whether this Administration I. Background interpretation accurately construes the statutory language. In the event that On July 21, 2010, President Obama 15 CFR Part 922 comments demonstrate a need to modify signed the Dodd-Frank Wall Street Reform and Consumer Protection Act [Docket No. 070726412–1300–02] this interpretation, the Commission will 3 take appropriate action. (‘‘Dodd-Frank Act’’). Title VII of the RIN 0648–AV88 Dodd-Frank Act 4 amended the DATES: Effective December 14, 2011. Commodity Exchange Act (‘‘CEA’’) 5 to Research Area Within Gray’s Reef Comments must be received by establish a comprehensive new National Marine Sanctuary; Notice of February 13, 2012. regulatory framework for swaps and Effective Date ADDRESSES: Comments, identified by security-based swaps. The legislation RIN number, may be sent by any of the was enacted to reduce risk, increase AGENCY: Office of National Marine following methods: transparency, and promote market Sanctuaries (ONMS), National Oceanic • Agency Web site, via its Comments and Atmospheric Administration integrity within the financial system by, Online process: http:// among other things: (1) Providing for the (NOAA), Department of Commerce comments.cftc.gov. Follow the (DOC). registration and comprehensive instructions for submitting comments regulation of swap dealers and major ACTION: Notice of effective date. through the Web site. • Mail: David A. Stawick, Secretary of 1 SUMMARY: NOAA published a final rule 5 U.S.C. 552. the Commission, Commodity Futures 2 17 CFR 145.9. for the establishment of a research area Trading Commission, Three Lafayette 3 See Dodd-Frank Wall Street Reform and within the Gray’s Reef National Marine Centre, 1155 21st Street NW., Consumer Protection Act of 2010, Public Law 111– Sanctuary on October 14, 2011 (76 FR Washington, DC 20581. 203, 124 Stat. 1376 (2010). The text of the Dodd- 63824). Pursuant to Section 304(b) of • Hand Delivery/Courier: Same as Frank Act may be accessed at http://www.cftc.gov/ the National Marine Sanctuaries Act (16 mail above. LawRegulation/OTCDERIVATIVES/index.htm. • 4 Pursuant to section 701 of the Dodd-Frank Act, U.S.C. 1434(b)) the final regulations take Federal eRulemaking Portal: http:// Title VII may be cited as the ‘‘Wall Street effect after 45 days of continuous www.regulations.gov. Follow the Transparency and Accountability Act of 2010.’’ session of Congress beginning on instructions for submitting comments. 5 7 U.S.C. 1 et seq.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77671

swap participants; (2) imposing clearing future delivery.’’ Senator Lincoln and 4b 16 ‘‘as if the agreement, contract, and trade execution requirements on explained the rationale for this or transaction was a contract of sale of standardized derivative products; (3) legislation during floor debate on the a commodity for future delivery.’’ 17 creating robust recordkeeping and real- Dodd-Frank Act: New CEA section 2(c)(2)(D) excepts time reporting regimes; and (4) [the] contracts [in Zelener] function just like certain transactions from its application. enhancing the Commission’s futures contracts, but the court of appeals, In particular, new CEA section rulemaking and enforcement authorities * * * based on the wording of the contract 2(c)(2)(D)(ii)(III)(aa) 18 excepts a contract with respect to, among others, all documents, held them to be spot contracts of sale that ‘‘results in actual delivery registered entities and intermediaries outside of CFTC jurisdiction. The CFTC within 28 days or such other longer subject to the Commission’s oversight. Reauthorization Act of 2008, which was period as the Commission may In addition, section 742(a) of the enacted as part of that year’s Farm Bill, determine by rule or regulation based Dodd-Frank Act amends section 2(c)(2) clarified that such transactions in foreign upon the typical commercial practice in of the CEA to add a new subparagraph, currency are subject to CFTC anti-fraud authority. It left open the possibility, cash or spot markets for the commodity 6 19 section 2(c)(2)(D) of the CEA, entitled however, that such Zelener-type contracts involved.’’ ‘‘Retail Commodity Transactions.’’ New could still escape CFTC jurisdiction if used The Commission is issuing this CEA section 2(c)(2)(D) provides the for other commodities such as energy and interpretation to inform the public of Commission with a new source of metals. the Commission’s views as to the jurisdiction over certain retail Section 742 corrects this by extending the meaning of the term ‘‘actual delivery’’ as commodity transactions.7 Congress Farm Bill’s ‘‘Zelener fraud fix’’ to retail off- used in new CEA section enacted this provision following court exchange transactions in all commodities. 2(c)(2)(D)(ii)(III)(aa) and to provide the decisions, including CFTC v. Zelener,8 Further, a transaction with a retail customer public with guidance on how the that narrowly interpreted the term that meets the leverage and other requirements set forth in Section 742 is Commission intends to assess whether ‘‘contract of sale of a commodity for subject not only to the anti-fraud provisions any given transaction results in actual future delivery’’—the statutory term for of CEA Section 4b (which is the case for delivery within the meaning of the a futures contract—based on language in foreign currency), but also to the on-exchange statute.20 The Commission requests customer agreements. Zelener involved trading requirement of CEA Section 4(a), ‘‘as comment on whether its interpretation retail foreign currency transactions that if’’ the transaction was a futures contract.12 of ‘‘actual delivery’’ accurately were characterized as spot sales in Accordingly, new CEA section construes the statutory language. contract documents, but in which, in 2(c)(2)(D) broadly applies to any This interpretation does not address practice, customer positions were held agreement, contract, or transaction in the meaning or scope of new CEA open indefinitely and customers never any commodity that is entered into section 2(c)(2)(D)(ii)(III)(bb) 21 or any 9 took delivery of foreign currency. with, or offered to (even if not entered exception to new CEA section 2(c)(2)(D) Zelener held that the transactions into with), a non-eligible contract other than new CEA section were not subject to CFTC jurisdiction participant or non-eligible commercial 2(c)(2)(D)(ii)(III)(aa). Similarly, this because they did not involve futures entity on a leveraged or margined basis, contracts but were ‘‘in form, spot sales 16 7 U.S.C. 6b. 10 or financed by the offeror, the for delivery within 48 hours.’’ In so counterparty, or a person acting in 17 7 U.S.C. 2(c)(2)(D)(iii). ruling, the court focused solely on the 18 7 U.S.C. 2(c)(2)(D)(ii)(III)(aa). concert with the offeror or counterparty language of the customer agreements. 19 The Commission has not adopted any on a similar basis.13 Following Zelener, Congress provided New CEA section regulations permitting a longer actual delivery the Commission with additional 2(c)(2)(D) further provides that such an period for any commodity pursuant to new CEA section 2(c)(2)(D)(ii)(III)(aa). Accordingly, the 28- authority over retail foreign currency agreement, contract, or transaction shall be subject to CEA sections 4(a),14 4(b),15 day actual delivery period set forth in this provision transactions in the CFTC remains applicable to all commodities. Reauthorization Act of 2008.11 20 In 1985, the Commission’s Office of General 12 Similarly, in section 742(a) of the Dodd- 156 Cong. Rec. S5,924 (daily ed. July 15, 2010) Counsel issued a staff interpretation determining (statement of Sen. Lincoln); see also Hearing to whether certain hypothetical precious metals Frank Act, Congress provided the Review Implications of the CFTC v. Zelener Case transactions would be subject to regulation under Commission with additional authority Before the Subcomm. on General Farm the CEA. Interpretive Letter 85–2, Bank Activities over non-foreign currency retail Commodities and Risk Management of the H. Involving the Sale of Precious Metals (CFTC Office commodity transactions by making Comm. on Agriculture, 111th Cong. 52–664 (2009) of General Counsel Aug. 6, 1985), Comm. Fut. L. (‘‘In 2004 the Seventh Circuit Court made a Rep. (CCH) ¶ 22,673 (‘‘Letter 85–2’’). Letter 85–2 specified forms of these transactions decision in the CFTC v. Zelener [case]. It adopted opined on whether the hypothetical transactions subject to certain provisions of the CEA a narrow definition of the term ‘transactions for would constitute leverage contracts, as defined by regardless of whether they involve a future delivery.’ What it held is that a 3-day 17 CFR 31.4(w), or contracts of sale of a commodity ‘‘contract of sale of a commodity for contract offered to retail customers for foreign for future delivery, as that term is used in CEA currency that on its face promised delivery was not section 2(a)(1)(A). Letter 85–2 is not relevant to a a futures contract and was, therefore, outside the determination of whether ‘‘actual delivery’’ has 6 7 U.S.C. 2(c)(2)(D). CFTC’s jurisdiction. This was even though the occurred within the meaning of new CEA section 7 The jurisdictional grant provided to the contracts operated in practice as futures contracts. 2(c)(2)(D)(ii)(III)(aa) for several reasons, including, Commission by new CEA section 2(c)(2)(D) is in Following the Zelener decision, many [fraudsters] but not limited to, the following: (1) Letter 85–2 addition to, and independent from, the jurisdiction were given a roadmap to evade CFTC jurisdiction predates new CEA section 2(c)(2)(D) by over contracts of sale of a commodity for future and to scam customers or consumers.’’) (statement approximately 26 years and therefore does not delivery and transactions subject to regulation of Hon. Leonard L. Boswell, United States purport to construe new CEA section 2(c)(2)(D); (2) pursuant to CEA section 19 that the CEA has Representative and Chairman, Subcommittee on to the extent Letter 85–2 assumes the occurrence of historically granted to the Commission. The General Farm Commodities and Risk Management); delivery of a commodity, it does not purport to jurisdictional grant provided by new CEA section (‘‘What we are talking about here though is determine whether ‘‘actual delivery’’ has occurred 2(c)(2)(D) is also in addition to, and independent expanding the—well, correcting would be the under new CEA section 2(c)(2)(D)(ii)(III)(aa); and (3) from, the jurisdiction over swaps granted to the argument the Zelener interpretation of what a new CEA section 2(c)(2)(D)(iii) explicitly subjects Commission by the Dodd-Frank Act. futures contract is. If in substance it is a futures certain retail commodity transactions to CEA 8 373 F.3d 861 (7th Cir. 2004); see also CFTC v. contract, it is going to be regulated. It doesn’t matter sections 4(a), 4(b), and 4b ‘‘as if’’ they were Erskine, 512 F.3d 309 (6th Cir. 2008). how clever your draftsmanship is.’’) (statement of contracts of sale of a commodity for future delivery, 9 373 F.3d at 863–64. Hon. Jim Marshall, United States Representative). regardless of whether they are, in fact, contracts of 10 Id. at 868–69. 13 7 U.S.C. 2(c)(2)(D)(i). sale of a commodity for future delivery under CEA 11 Food, Conservation and Energy Act of 2008, 14 7 U.S.C. 6(a). section 2(a)(1)(A). Public Law 110–246, 122 Stat. 1651 (2008). 15 7 U.S.C. 6(b). 21 7 U.S.C. 2(c)(2)(D)(ii)(III)(bb).

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77672 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

interpretation does not address the including any portion of the purchase made segregation or allocation status of the meaning or scope of contracts of sale of using leverage, margin, or financing, into the commodity. a commodity for future delivery, the possession of the buyer and has transferred Example 5: Actual delivery will not have forward contract exclusion from the title to that quantity of the commodity to the occurred if, within 28 days, an agreement, buyer. contract, or transaction for the purchase or term ‘‘future delivery’’ set forth in CEA Example 2: Actual delivery will have sale of a commodity is rolled, offset, or 22 section 1a(27), or the forward contract occurred if, within 28 days, the seller has otherwise netted with another transaction or exclusion from the term ‘‘swap’’ set physically delivered the entire quantity of settled in cash between the buyer and the forth in CEA section 1a(47)(B)(ii).23 Nor the commodity purchased by the buyer, seller, but the seller has not, in accordance does this interpretation alter any including any portion of the purchase made with the methods described in Example 1 or statutory interpretation or statement of using leverage, margin, or financing, whether 2, physically delivered the entire quantity of Commission policy relating to the in specifically segregated or fungible bulk the commodity purchased by the buyer, form, into the possession of a depository forward contract exclusion.24 including any portion of the purchase made other than the seller and its parent company, using leverage, margin, or financing, and II. Commission Interpretation of partners, agents, and other affiliates, that is: transferred title to that quantity of the ‘‘Actual Delivery’’ (a) A financial institution as defined by the commodity to the buyer, regardless of CEA; (b) a depository, the warrants or whether the agreement, contract, or In the view of the Commission, the warehouse receipts of which are recognized transaction between the buyer and seller determination of whether ‘‘actual for delivery purposes for any commodity on purports to create an enforceable obligation delivery’’ has occurred within the a contract market designated by the on the part of the seller, or a parent company, meaning of new CEA section Commission; or (c) a storage facility licensed partner, agent, or other affiliate of the seller, 2(c)(2)(D)(ii)(III)(aa) requires or regulated by the United States or any to deliver the commodity to the buyer. United States agency, and has transferred consideration of evidence regarding title to that quantity of the commodity to the Issued in Washington, DC, on December 1, delivery beyond the four corners of buyer.25 2011 by the Commission. contract documents. This interpretation Example 3: Actual delivery will not have David A. Stawick, of the statutory language is based on occurred if, within 28 days, a book entry is Secretary of the Commission. made by the seller purporting to show that Congress’s use of the word ‘‘actual’’ to [FR Doc. 2011–31355 Filed 12–13–11; 8:45 am] modify ‘‘delivery’’ and on the legislative delivery of the commodity has been made to BILLING CODE P history of new CEA section the buyer and/or that a sale of a commodity 2(c)(2)(D)(ii)(III)(aa) described above. has subsequently been covered or hedged by Consistent with this interpretation of the seller through a third party contract or account, but the seller has not, in accordance DEPARTMENT OF THE TREASURY the statutory language, in determining with the methods described in Example 1 or whether actual delivery has occurred 2, physically delivered the entire quantity of Internal Revenue Service within 28 days, the Commission will the commodity purchased by the buyer, employ a functional approach and including any portion of the purchase made 26 CFR Part 31 examine how the agreement, contract, or using leverage, margin, or financing, and transaction is marketed, managed, and transferred title to that quantity of the [TD 9566] performed, instead of relying solely on commodity to the buyer, regardless of language used by the parties in the whether the agreement, contract, or RIN 1545–BK82 transaction between the buyer and seller agreement, contract, or transaction. This purports to create an enforceable obligation Employer’s Annual Federal Tax Return approach best accomplishes Congress’s on the part of the seller, or a parent company, and Modifications to the Deposit Rules intent when it enacted section 742(a) of partner, agent, or other affiliate of the seller, the Dodd-Frank Act and gives full to deliver the commodity to the buyer. AGENCY: Internal Revenue Service, meaning to Congress’s term ‘‘actual Example 4: Actual delivery will not have Treasury. delivery.’’ occurred if, within 28 days, the seller has purported to physically deliver the entire ACTION: Final regulations and removal of Relevant factors in this determination temporary regulations. include the following: ownership, quantity of the commodity purchased by the buyer, including any portion of the purchase possession, title, and physical location made using leverage, margin, or financing, in SUMMARY: This document contains final of the commodity purchased or sold, accordance with the method described in regulations relating to the Employers’ both before and after execution of the Example 2, and transfer title to that quantity Annual Federal Tax Program (the Form agreement, contract, or transaction; the of the commodity to the buyer, but the title 944 Program) and the requirements for nature of the relationship between the document fails to identify the specific depositing social security, Medicare, buyer, seller, and possessor of the financial institution, depository, or storage and withheld Federal income taxes commodity purchased or sold; and the facility with possession of the commodity, (collectively ‘‘employment taxes’’). manner in which the purchase or sale is the quality specifications of the commodity, the identity of the party transferring title to These final regulations allow certain recorded and completed. The the commodity to the buyer, and the employers to file a Form 944, Commission provides the following ‘‘Employer’s ANNUAL Federal Tax examples to illustrate how it will 25 Based on Examples 1 and 2, an agreement, Return,’’ rather than Forms 941, determine whether actual delivery has contract, or transaction that results in ‘‘physical ‘‘Employer’s QUARTERLY Federal Tax occurred within the meaning of new delivery’’ within the meaning of section Return.’’ Additionally, these final CEA section 2(c)(2)(D)(ii)(III)(aa). 1.04(a)(2)(i)–(iii) of the Model State Commodity Code would ordinarily result in ‘‘actual delivery’’ regulations provide guidance related to Example 1: Actual delivery will have under new CEA section 2(c)(2)(D)(ii)(III)(aa), absent the lookback periods and deposit occurred if, within 28 days, the seller has other evidence indicating that the purported requirements for employers required to physically delivered the entire quantity of delivery is a sham. See Model State Commodity file Forms 941 and Form 944. These the commodity purchased by the buyer, Code § 1.04(a)(2)(i)–(iii), Comm. Fut. L. Rep. Archive (CCH) ¶ 22,568 (Apr. 5, 1985). Conversely, final regulations affect taxpayers that an agreement, contract, or transaction that does not file Forms 941, Form 944, and any 22 7 U.S.C. 1a(27). result in ‘‘physical delivery’’ within the meaning of related Spanish-language returns or 23 7 U.S.C. 1a(47)(B)(ii). section 1.04(a)(2)(i)–(iii) of the Model State returns for U.S. possessions. 24 See, e.g., Statutory Interpretation Concerning Commodity Code is highly unlikely to result in Forward Transactions, 55 FR 39188 (Sept. 25, 1990) ‘‘actual delivery’’ under new CEA section DATES: Effective Date: These regulations (‘‘Brent Interpretation’’). 2(c)(2)(D)(ii)(III)(aa). are effective on December 14, 2011.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77673

Applicability Date: For dates of threshold’’) be increased. The Treasury The revisions contained in these final applicability, see §§ 31.6011(a)–1(g), Department and the IRS agreed to make regulations also impact employers that 31.6011(a)–4(d), and 31.6302–1(n). Form 944 voluntary and to continue to file Spanish-language returns or returns FOR FURTHER INFORMATION CONTACT: consider whether to increase the for U.S. possessions. For tax year 2012 Jennifer Records, (202) 622–4910 (not a eligibility threshold. No comments and later, Form 944–SS, Employer’s toll-free number). responding to the 2008 notice of ANNUAL Federal Tax Return (American Samoa, Guam, the SUPPLEMENTARY INFORMATION: proposed rulemaking were received. This Treasury decision adopts the rules Commonwealth of the Northern Mariana Background of the 2008 proposed regulations with Islands, and the U.S. Virgin Islands) and These final regulations amend the minor clarifying changes and removes Form 944–PR, Planilla para la Regulations on Employment Taxes and the temporary regulations. That is, Declaracio´n Federal ANUAL del Collection of Income Tax at Source (26 participation in the Form 944 Program Patrono, will be eliminated due to the CFR part 31) under section 6011 relating will remain voluntary and the eligibility low volume of employers filing these to the employment tax return filing threshold for participation will remain forms. Employers who would otherwise requirements and section 6302 relating at $1,000. file a Form 944–SS or Form 944–PR will file a Form 944. The Treasury to the employment tax deposit Explanation of Revisions requirements. These final regulations Department and the IRS plan to retain ´ are part of the IRS’ continued effort to Although this Treasury decision Form 944(SP), Declaracion Federal reduce taxpayer burden by permitting adopts the rules of the proposed ANUAL de Impuestos del Patrono o certain employers to file one regulations with no substantive change, Empleador, which is the Spanish equivalent of Form 944. Employers in employment tax return annually instead some of the language included in the the United States in the Form 944 of four quarterly employment tax proposed regulations and the existing Program may file Form 944(SP) as an returns. final regulations is clarified and alternative to filing Form 944. The Treasury Department and the IRS updated to reflect current law and Additionally, employers in American are considering changes to the annual practice. The revisions are discussed in Samoa, Guam, the Commonwealth of filing program in light of the program’s this preamble. the Northern Mariana Islands, the U.S. performance as measured against the Employers that request to participate Virgin Islands, and Puerto Rico may file program’s original goals, administrative in the Form 944 Program must receive a Form 944(SP) as an alternative to and operational considerations, and written notice to file Form 944 before filing Form 944, for tax year 2012 and overall program effectiveness. Any they are permitted to file the form. Once later. These final regulations remove changes to the program will be set forth employers receive this notice, they must references to the eliminated forms and file Form 944 for each year and cannot in future guidance. update the language included in the On January 3, 2006, temporary file Forms 941 until they are notified proposed regulations and the existing that their filing requirement has regulations (TD 9239) relating to Form final regulations to provide guidance to 944 (the 2006 temporary regulations) changed to Forms 941 because (1) They former Form 944–SS and Form 944–PR were published in the Federal Register contacted the IRS to request that their filers who are required to file Form 944 (71 FR 11). A notice of proposed filing requirement be changed to Forms instead. rulemaking (REG–148568–04) cross- 941, or (2) they no longer qualify for the Employers in American Samoa, referencing the 2006 temporary Form 944 Program. The IRS issued Guam, the Commonwealth of the regulations was published in the guidance published in the Internal Northern Mariana Islands, and the U.S. Federal Register on the same day (71 FR Revenue Bulletin (Rev. Proc. 2009–13 Virgin Islands who are required to file 46) (the 2006 proposed regulations). A (2009–1 CB 323) and Rev. Proc. 2009– Form 944 for tax year 2012 and later can correction to the 2006 temporary 51 (2009–45 IRB 625)) that provides request to file Forms 941–SS instead of regulations was published in the procedures for employers to follow to Form 944. Employers in Puerto Rico Federal Register on March 17, 2006 (71 request to file Form 944 instead of who are required to file Form 944 for tax FR 13766). On December 29, 2008, Forms 941 (‘‘opt in’’). Additionally, Rev. year 2012 and later can request to file temporary regulations (TD 9440), which Proc. 2009–13 and Rev. Proc. 2009–51 Forms 941–PR instead of Form 944. revised the 2006 temporary regulations, provide procedures for employers to Employers required to file Form 944 relating to Form 944 (the 2008 follow to request to file Forms 941 should follow the procedures contained temporary regulations) were published instead of Form 944 when the IRS in Rev. Proc. 2009–51 or its successor to in the Federal Register (73 FR 79354). previously notified them they should request to file Form 941–SS or Form A notice of proposed rulemaking (REG– file Form 944 (‘‘opt out’’). Under Rev. 941–PR. See § 601.601(d)(2)(ii)(b). 148568–04) cross-referencing the 2008 Proc. 2009–13, for tax year 2009, temporary regulations was published in employers who were notified they Special Analyses the Federal Register on the same day should file Form 944 could only opt out It has been determined that this (73 FR 79423) (the 2008 proposed if they anticipated that their Treasury decision is not a significant regulations). No requests for a public employment tax liability would exceed regulatory action as defined in hearing were received; therefore, no the $1,000 threshold or if they wanted Executive Order 12866, as public hearing was held. As noted in the to e-file Forms 941 quarterly instead. supplemented by Executive Order 2008 temporary regulations, comments Beginning in 2010, employers were able 13563. Therefore, a regulatory were received responding to the 2006 to opt out of filing Form 944 for any assessment is not required. It also has notice of proposed rulemaking. Those reason if they followed the procedures been determined that section 553(b) of comments requested that use of Form set forth in Rev. Proc. 2009–51 or its the Administrative Procedure Act (5 944 be changed from mandatory to successor. These final regulations clarify U.S.C. chapter 5) does not apply to these voluntary and that the amount of the that employers should follow the regulations. It is hereby certified that employment tax liability used to procedures contained in Rev. Proc these regulations will not have a determine whether employers are 2009–51 or its successor to opt in or to significant economic impact on a eligible to file Form 944 (the ‘‘eligibility opt out of the Form 944 Program. substantial number of small entities

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77674 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

pursuant to the Regulatory Flexibility as otherwise provided in § 31.6011(a)–8 of this section. Upon proper request by Act (5 U.S.C. Chapter 6). The and in paragraphs (a)(3), (a)(4), and the employer, the IRS will notify regulations under sections 6011 and (a)(5) of this section, Form 941, employers in writing of their 6302 affect only a small number of ‘‘Employer’s QUARTERLY Federal Tax qualification for the Employers’ Annual taxpayers that file employment tax Return,’’ is the form prescribed for Federal Tax Program (Form 944). The returns, and participation in the Form making the return required by this IRS will notify employers when they no 944 Program is voluntary. Therefore, the paragraph (a)(1). Such return shall not longer qualify for the Employers’ Treasury Department and the IRS have include wages for agricultural labor Annual Federal Tax Program (Form 944) determined that the regulations will not required to be reported on any return and must file Forms 941 instead. affect a substantial number of small prescribed by paragraph (a)(2) of this Qualified employers are those with an entities. Pursuant to section 7805(f) of section. The return shall include wages estimated annual employment tax the Internal Revenue Code, the received by an employee in the form of liability (that is, social security, proposed regulations preceding these tips only to the extent of the tips Medicare, and withheld Federal income regulations were submitted to the Chief reported by the employee to the taxes) of $1,000 or less for the entire Counsel for Advocacy of the Small employer in a written statement calendar year, except employers Business Administration for comment furnished to the employer pursuant to required under— on their impact on small entities. No section 6053(a). (A) Paragraph (a)(2) of this section to comments from the Small Business * * * * * make a return on Form 943, Administration were received. (4) Employers in Puerto Rico, the U.S. ‘‘Employer’s Annual Federal Tax Return for Agricultural Employees’’; or Drafting Information Virgin Islands, Guam, American Samoa, or the Commonwealth of the Northern (B) Paragraph (a)(3) of this section to The principal authors of these Mariana Islands. Except as otherwise make a return on Schedule H (Form regulations are Blaise Dusenberry and provided in paragraph (a)(5), Form 941– 1040), ‘‘Household Employment Taxes.’’ Jennifer Records of the Office of the PR, ‘‘Planilla para la Declaracion (ii) Requests to opt in or opt out of the Associate Chief Counsel (Procedure and Federal TRIMESTRAL del Patrono,’’ is Employers’ Annual Federal Tax Administration). the form prescribed for use in making Program (Form 944). The IRS has List of Subjects in 26 CFR Part 31 the return required under paragraph established procedures in Revenue (a)(1) of this section in the case of every Procedure 2009–51 published in the Employment taxes, Fishing vessels, employer whose principal place of Internal Revenue Bulletin for employers Gambling, Income taxes, Penalties, business is in Puerto Rico, or if the to follow to request to participate in the Pensions, Railroad retirement, Reporting employer has employees who are Employers’ Annual Federal Tax and recordkeeping requirements, Social subject to income tax withholding for Program (Form 944) (to opt in) and to Security, Unemployment compensation. Puerto Rico. Except as otherwise request to be removed from the Adoption Amendments to the provided in paragraph (a)(5), Form 941– Employers’ Annual Federal Tax Regulations SS, ‘‘Employer’s QUARTERLY Federal Program (Form 944) after becoming a Tax Return (American Samoa, Guam, participant in order to file Forms 941 Accordingly, 26 CFR part 31 is instead (to opt out). The IRS will notify amended as follows: the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin employers that their filing requirements PART 31—EMPLOYMENT TAXES AND Islands),’’ is the form prescribed for use have changed to Form 944 or Forms COLLECTION OF INCOME TAX AT in making the return required under 941. Employers must follow the SOURCE paragraph (a)(1) of this section in the procedures in Revenue Procedure 2009– case of every employer whose principal 51 or its successor to request to opt in ■ Paragraph 1. The authority citation place of business is in the U.S. Virgin or opt out of the Employers’ Annual for part 31 is amended by removing the Islands, Guam, American Samoa, or the Federal Tax Program (Form 944). entry for § 31.6302–1T to read in part as Commonwealth of the Northern Mariana * * * * * follows: Islands, or if the employer has (g) Effective/applicability dates. Authority: 26 U.S.C. 7805 * * * employees who are subject to income Paragraphs (a)(1) and (a)(5)(i) of this ■ Par. 2. Section 31.6011(a)–1 is tax withholding for these U.S. section apply to taxable years beginning amended by revising paragraphs (a)(1), possessions. Form 941 (or Form 944, as on or after December 30, 2008. (a)(4), (a)(5) and (g) to read as follows: described under paragraph (a)(5) of this Paragraph (a)(4) of this section applies section, if the IRS notified the employer to taxable years beginning on or after § 31.6011(a)–1 Returns under Federal that Form 944 must be filed in lieu of January 1, 2012. Paragraph (a)(5)(ii) of Insurance Contributions Act. Form 941) is the form prescribed for this section applies to taxable years (a) Requirement—(1) In general. making the return in the case of every beginning on or after January 1, 2010. Except as otherwise provided in employer who is required pursuant to The rules of paragraph (a)(1) of this paragraphs (a)(3) and (a)(5) of this § 31.6011(a)–4 to make a return of section that apply to taxable years section and in § 31.6011(a)–5 every income tax withheld from wages. beginning before December 30, 2008, are employer is required to make a return (5) Employers in the Employers’ contained in § 31.6011(a)–1 as in effect for the first calendar quarter in which Annual Federal Tax Program (Form prior to December 30, 2008. The rules of the employer pays wages, other than 944)—(i) In general. Employers notified paragraph (a)(4) of this section that wages for agricultural labor, subject to of their qualification for the Employers’ apply to taxable years beginning before the tax imposed by the Federal Annual Federal Tax Program (Form 944) January 1, 2012, are contained in Insurance Contributions Act, and is are required to file Form 944, § 31.6011(a)–1 as in effect prior to required to make a return for each ‘‘Employer’s ANNUAL Federal Tax January 1, 2012. The rules of paragraph subsequent calendar quarter (whether or Return,’’ instead of Form 941 (or Form (a)(5)(ii) of this section that apply to not wages are paid therein) until the 941–SS or Form 941–PR under taxable years beginning before January employer has filed a final return in paragraph (a)(4) of this section) to make 1, 2010, but on or after December 30, accordance with § 31.6011(a)–6. Except a return as required by paragraph (a)(1) 2008, are contained in § 31.6011(a)–1T

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77675

as in effect on or after December 30, (B) Paragraph (a)(2) of this section to section, each return required to be made 2008. The rules of paragraph (a)(5) of make a return on Schedule H (Form under § 31.6011(a)–1, in respect of the this section that apply to taxable years 1040), ‘‘Household Employment Taxes.’’ taxes imposed by the Federal Insurance beginning before December 30, 2008, are (ii) Request to opt in or opt out of the Contributions Act (26 U.S.C. 3101– contained in § 31.6011(a)–1T as in effect Employers’ Annual Federal Tax 3128), or required to be made under prior to December 30, 2008. Program (Form 944). The IRS § 31.6011(a)–4, in respect of income tax established procedures in Revenue withheld, shall be filed on or before the § 31.6011(a)–1T [Removed]. Procedure 2009–51 published in the last day of the first calendar month ■ Par. 3. Section 31.6011(a)–1T is Internal Revenue Bulletin for employers following the period for which it is removed. to follow to request to participate in the made. A return may be filed on or before Employers’ Annual Federal Tax ■ Par. 4. Section 31.6011(a)–4 is the 10th day of the second calendar Program (Form 944) (to opt in) and to amended by revising paragraphs (a)(1), month following such period if timely request to be removed from the (a)(4) and (d) to read as follows: deposits under section 6302(c) of the Employers’ Annual Federal Tax Code and the regulations have been § 31.6011(a)–4 Returns of income tax Program (Form 944) after becoming a made in full payment of such taxes due withheld. participant in order to file Forms 941 for the period. instead (to opt out). The IRS will notify (a) Withheld from wages—(1) In * * * * * employers that their filing requirements general. Except as otherwise provided Par. 7. Section 31.6302–0 is amended have changed to Form 944 or Forms in paragraphs (a)(2), (a)(3), (a)(4), and (b) as follows: 941. Employers must follow the of this section, and in § 31.6011(a)–5, ■ 1. Revising the introductory text. procedures in Revenue Procedure 2009– every person required to make a return ■ 2. Revising the section heading for 51 or its successor to opt in or opt out of income tax withheld from wages § 31.6302–1. of the Employers’ Annual Federal Tax pursuant to section 3402 shall make a ■ 3. Adding entries for paragraphs Program (Form 944). return for the first calendar quarter in (b)(4)(i), (b)(4)(ii), (c)(5), (c)(6), (f)(4)(ii) which the person is required to deduct * * * * * and (f)(4)(iii) for § 31.6302–1. and withhold such tax and for each (d) Effective/applicability dates. ■ 4. Revising the entries for paragraphs subsequent calendar quarter, whether or Paragraphs (a)(1) and (a)(4)(i) of this (d), (f)(4)(i), (f)(5), (g)(1) and (n) for not wages are paid therein, until the section apply to taxable years beginning § 31.6302–1. person has filed a final return in on or after December 30, 2008. ■ 5. Removing the heading for accordance with § 31.6011(a)–6. Except Paragraph (a)(4)(ii) of this section § 31.6302–1T and the entries for as otherwise provided in paragraphs applies to taxable years beginning on or paragraphs (a) though (n). (a)(2), (a)(3), (a)(4), and (b) of this after January 1, 2010. The rules of The revisions and additions to read as section, and in § 31.6011(a)–8, Form paragraph (a)(1) of this section that follows: apply to taxable years beginning before 941, ‘‘Employer’s QUARTERLY Federal § 31.6302–0 Table of contents. Tax Return,’’ is the form prescribed for December 30, 2008, are contained in § 31.6011(a)–4 as in effect prior to This section lists the table of contents making the return required under this for §§ 31.6302–1 through 31.6302–4. paragraph (a)(1). December 30, 2008. The rules of paragraph (a)(4)(ii) of this section that * * * * * § 31.6302–1 Deposit rules for taxes under apply to taxable years beginning before the Federal Insurance Contributions Act (4) Employers in the Employers’ January 1, 2010, but on or after (FICA) and withheld income taxes. Annual Federal Tax Program (Form December 30, 2008, are contained in * * * * * 944)—(i) In general. Employers notified § 31.6011(a)–4T as in effect on or after (b) * * * of their qualification for the Employers’ December 30, 2008. The rules of (4) * * * Annual Federal Tax Program (Form 944) paragraph (a)(4) of this section that (i) In general. are required to file Form 944, apply to taxable years beginning before (ii) Adjustments and claims for ‘‘Employer’s ANNUAL Federal Tax December 30, 2008, are contained in refund. Return,’’ instead of Form 941 to make a § 31.6011(a)–4T as in effect prior to (c) * * * return of income tax withheld from December 30, 2008. Paragraph (b)(6) of (5) Exception to the monthly and wages pursuant to section 3402. Upon this section (relating to certain semi-weekly deposit rules for employers proper request by the employer, the IRS payments made by government entities in the Employers’ Annual Federal Tax will notify employers in writing of their subject to withholding under section Program (Form 944). qualification for the Employers’ Annual 3402(t)) applies to payments made by (6) Extension of time to deposit for Federal Tax Program (Form 944). The government entities under section employers in the Employers’ Annual IRS will notify employers when they no 3402(t) after December 31, 2012. Federal Tax Program (Form 944) during longer qualify for the Employers’ the preceding year. Annual Federal Tax Program (Form 944) § 31.6011(a)–4T [Removed]. ■ Par. 5. Section 31.6011(a)–4T is * * * * * and must file Forms 941 instead. (d) Examples. Qualified employers are those with an removed. ■ * * * * * estimated annual employment tax Par. 6. Section 31.6071(a)–1 is (f) * * * liability (that is, social security, amended by revising paragraph (a)(1) to read as follows: (4) * * * Medicare, and withheld federal income (i) De minimis deposit rules for taxes) of $1,000 or less for the entire § 31.6071(a)–1 Time for filing returns and quarterly and annual return periods calendar year, except employers other documents. beginning on or after January 1, 2001. required under— (a) Federal Insurance Contributions (ii) De minimis deposit rule for (A) Paragraph (a)(3) of this section to Act and income tax withheld from quarterly return periods beginning on or make a return on Form 943, wages and from nonpayroll payments— after January 1, 2010. ‘‘Employer’s Annual Federal Tax Return (1) Quarterly or annual returns. Except (iii) De minimis deposit rule for for Agricultural Employees’’; or as provided in paragraph (a)(4) of this employers who file Form 944.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77676 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

(5) Examples. and 6414 filed after the due date of the February deposit is due March 15, 2007. F (g) * * * original return are not taken into deposits the $2,500 of employment taxes (1) In general. account when determining the aggregate accumulated during January and February on * * * * * amount of employment taxes reported March 15, 2007. Pursuant to paragraph (c)(6) (n) Effective/applicability dates. of this section, F will be deemed to have for the lookback period. Prior period timely deposited the employment taxes due * * * * * adjustments reported on Forms 941 or for January 2007, and, thus, the IRS will not Form 944 for 2008 and earlier years are impose a failure-to-deposit penalty under § 31.6302–0T [Removed] taken into account in determining the section 6656 for that month. ■ employment tax liability for the return Par. 8. Section 31.6302–0T is (e) * * * removed. period in which the adjustments are (2) The term employment taxes does ■ Par. 9. Section 31.6302–1 is amended reported. not include taxes with respect to wages by revising paragraphs (b)(4), (c)(5), (c) * * * for domestic service in a private home (c)(6), (d) Example 6, (e)(2), (f)(4), (f)(5) (5) Exception to the monthly and of the employer, unless the employer is Example 3, (g)(1), and (n) to read as semi-weekly deposit rules for employers otherwise required to file a Form 941 or follows: in the Employers’ Annual Federal Tax Form 944 under § 31.6011(a)–4 or Program (Form 944). Generally, an § 31.6302–1 Deposit rules for taxes under § 31.6011(a)–5. In the case of employers the Federal Insurance Contributions Act employer who files Form 944 for a paying advance earned income credit (FICA) and withheld income taxes. taxable year may remit its accumulated amounts for periods ending before * * * * * employment taxes with its timely filed January 1, 2011, the amount of taxes (b) * * * return for that taxable year and is not required to be deposited shall be (4) Lookback period—(i) In general. required to deposit under either the reduced by advance amounts paid to For employers who file Form 941, monthly or semi-weekly rules set forth employees. Also, see § 31.6302–3 ‘‘Employer’s QUARTERLY Federal Tax in paragraphs (c)(1) and (c)(2) of this concerning a taxpayer’s option with Return,’’ (or any related Spanish- section during that taxable year. An respect to payments made before language returns or returns for U.S. employer who files Form 944 whose January 1, 1994, to treat backup possessions) the lookback period for actual employment tax liability exceeds withholding amounts under section each calendar year is the twelve month the eligibility threshold, as set forth in 3406 separately. period ended the preceding June 30. For §§ 31.6011(a)–1(a)(5) and 31.6011(a)– (f) * * * example, the lookback period for 4(a)(4), will not qualify for this (4) De minimis rule—(i) De minimis calendar year 2006 is the period July 1, exception and should follow the deposit deposit rules for quarterly and annual 2004, to June 30, 2005. The lookback rules set forth in this section. return periods beginning on or after period for employers who file Form 944, (6) Extension of time to deposit for January 1, 2001. If the total amount of ‘‘Employer’s ANNUAL Federal Tax employers in the Employers’ Annual accumulated employment taxes for the Return,’’ or filed Form 944 (or any Federal Tax Program (Form 944) during return period is de minimis and the related Spanish-language returns or the preceding year. An employer who amount is fully deposited or remitted returns for U.S. possessions) for either filed Form 944 for the preceding year with a timely filed return for the return of the two previous calendar years, is but will file Form 941 instead for the period, the amount deposited or the second calendar year preceding the current year will be deemed to have remitted will be deemed to have been current calendar year. For example, the timely deposited its current year’s timely deposited. The total amount of lookback period for calendar year 2006 January deposit obligation(s) under accumulated employment taxes is de is calendar year 2004. In determining paragraphs (c)(1) through (c)(4) of this minimis if it is less than $2,500 for the status as either a monthly or semi- section if the employer deposits the return period or if it is de minimis weekly depositor, an employer should amount of such deposit obligation(s) by pursuant to paragraph (f)(4)(ii) of this determine the aggregate amount of March 15 of that year. section. employment tax liabilities reported on * * * * * (ii) De minimis deposit rule for its return(s) (Forms 941 or Form 944) for (d) * * * quarterly return periods beginning on or the lookback period. The amount of Example 6. Extension of time to deposit for after January 1, 2010. For purposes of employment tax liabilities reported for employers who filed Form 944 for the paragraph (f)(4)(i) of this section, if the the lookback period is the amount the preceding year satisfied. F (a monthly total amount of accumulated employer reported on either Forms 941 depositor) was notified to file Form 944 to employment taxes for the immediately or Form 944 even if the employer is report its employment tax liabilities for the preceding quarter was less than $2,500, required to file the other form for the 2006 calendar year. F filed Form 944 on unless § 31.6302–1(c)(3) applies to current calendar year. New employers January 31, 2007, reporting a total require a deposit at the close of the next employment tax liability for 2006 of $3,000. day, then the employer will be deemed shall be treated as having employment Because F’s annual employment tax liability tax liabilities of zero for any part of the for the 2006 taxable year exceeded $1,000 to have timely deposited the employer’s lookback period before the date the (the applicable eligibility threshold for that employment taxes for the current employer started or acquired its taxable year), the IRS notified F to file Forms quarter if the employer complies with business. 941 for calendar year 2007 and thereafter. the time and method payment (ii) Adjustments and claims for Based on F’s liability during the lookback requirements contained in paragraph refund. The employment tax liability period (calendar year 2005, pursuant to (f)(4)(i) of this section. reported on the original return for the paragraph (b)(4)(i) of this section), F is a (iii) De minimis deposit rule for return period is the amount taken into monthly depositor for 2007. F accumulates employers who file Form 944. An account in determining whether the $1,000 in employment taxes during January employer who files Form 944 whose 2007. Because F is a monthly depositor, F’s aggregate amount of employment taxes January deposit obligation is due February employment tax liability for the year reported for the lookback period 15, 2007. F does not deposit these equals or exceeds $2,500 but whose exceeds $50,000. Any amounts reported accumulated employment taxes on February employment tax liability for a quarter of on adjusted returns or claims for refund 15, 2007. F accumulates $1,500 in the year is de minimis pursuant to pursuant to sections 6205, 6402, 6413, employment taxes during February 2007. F’s paragraph (f)(4)(i) of this section will be

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77677

deemed to have timely deposited the of determining whether a deposit of § 31.6302–1T [Removed]. employment taxes due for that quarter if either is due, whether the One-Day rule Par. 10. Section 31.6302–1T is the employer fully deposits the of paragraph (c)(3) of this section removed. employment taxes accumulated during applies, or whether any safe harbor is the quarter by the last day of the month applicable. In addition, Form 943 taxes Steven T. Miller, following the close of that quarter. and Form 941 or Form 944 taxes must Deputy Commissioner for Services and Employment taxes accumulated during be deposited separately. (See paragraph Enforcement. the fourth quarter can be either (b) of this section for rules for Approved: December 6, 2011. deposited by January 31 or remitted determining an agricultural employer’s Emily S. McMahon, with a timely filed return for the return deposit status for Form 941 taxes). Acting Assistant Secretary of the Treasury period. Whether an agricultural employer is a (Tax Policy). (5) * * * monthly or semi-weekly depositor of [FR Doc. 2011–32069 Filed 12–9–11; 4:15 pm] Example 3. De minimis deposit rule for Form 943 taxes is determined according BILLING CODE 4830–01–P employers who file Form 944 satisfied. K (a to the rules of this paragraph (g). monthly depositor) was notified to file Form * * * * * 944 to report its employment tax liabilities (n) Effective/applicability dates. DEPARTMENT OF THE TREASURY for the 2006 calendar year. In the first quarter Except for the deposit of employment of 2006, K accumulates employment taxes in taxes attributable to payments made by Alcohol and Tobacco Tax and Trade the amount of $1,000. On April 28, 2006, K government entities under section Bureau deposits the $1,000 of employment taxes accumulated in the first quarter. K 3402(t), §§ 31.6302–1 through 31.6302– accumulates another $1,000 of employment 3 apply with respect to the deposit of 27 CFR Part 9 taxes during the second quarter of 2006. On employment taxes attributable to [Docket No. TTB–2011–0006; T.D. TTB–100; July 31, 2006, K deposits the $1,000 of payments made after December 31, Ref: Notice No. 119] employment taxes accumulated in the second 1992. Paragraph (e)(1)(iii)(E) of this quarter. K’s business grows and accumulates section applies with respect to the RIN 1513–AB81 $1,500 in employment taxes during the third deposit of employment taxes quarter of 2006. On October 31, 2006, K attributable to payments made by Establishment of the Coombsville deposits the $1,500 of employment taxes government entities under section Viticultural Area accumulated in the third quarter. K accumulates another $2,000 in employment 3402(t) after December 31, 2012. To the AGENCY: Alcohol and Tobacco Tax and taxes during the fourth quarter. K files Form extent that the provisions of §§ 31.6302– Trade Bureau, Treasury. 1 through 31.6302–3 are inconsistent 944 on January 31, 2007, reporting a total ACTION: Final rule; Treasury Decision. employment tax liability for 2006 of $5,500 with the provisions of §§ 31.6302(c)–1 and submits a check for the remaining $2,000 and 31.6302(c)–2, a taxpayer will be SUMMARY: This final rule establishes the of employment taxes with the return. K will considered to be in compliance with 11,075-acre ‘‘Coombsville’’ viticultural be deemed to have timely deposited the §§ 31.6302–1 through 31.6302–3 if the area in Napa County, California. The employment taxes due for all of 2006 because taxpayer makes timely deposits during viticultural area lies within the Napa K complied with the de minimis deposit rule 1993 in accordance with §§ 31.6302(c)– provided in paragraph (f)(4)(iii) of this Valley viticultural area and the section. Therefore, the IRS will not impose a 1 and 31.6302(c)–2. Paragraphs (b)(4), multicounty North Coast viticultural failure-to-deposit penalty under section 6656 (c)(5), (c)(6), (d) Example 6, (e)(2), area. TTB designates viticultural areas for any month of the year. Under this de (f)(4)(i), (f)(4)(iii), (f)(5) Example 3, and to allow vintners to better describe the minimis deposit rule, because K was required (g)(1) of this section apply to taxable origin of their wines and to allow to file Form 944 for calendar year 2006, if K’s years beginning on or after December consumers to better identify wines they employment tax liability for a quarter is de 30, 2008. Paragraph (f)(4)(ii) of this may purchase. minimis, then K may deposit that quarter’s section applies to taxable years DATES: Effective Date: January 13, 2012. liability by the last day of the month beginning on or after January 1, 2010. following the close of the quarter. This de FOR FURTHER INFORMATION CONTACT: The rules of paragraphs (e)(2) and (g)(1) minimis rule allows K to have the benefit of of this section that apply to taxable Karen A. Thornton, Regulations and the same quarterly de minimis amount K Rulings Division, Alcohol and Tobacco would have received if K filed Form 941 each years beginning before December 30, 2008, are contained in § 31.6302–1 as in Tax and Trade Bureau, 1310 G St. NW., quarter instead of Form 944 annually. Thus, Room 200E, Washington, DC 20220; because K’s employment tax liability for each effect prior to December 30, 2008. The quarter was de minimis, K could deposit rules of paragraphs (b)(4), (c)(5), (c)(6), phone (202) 453–1039, ext. 175. quarterly. (d) Example 6, (f)(4)(i), (f)(4)(iii), and SUPPLEMENTARY INFORMATION: (g) Agricultural employers—special (f)(5) Example 3 of this section that Background on Viticultural Areas rules—(1) In general. An agricultural apply to taxable years beginning on or employer reports wages paid to farm after January 1, 2006, and before TTB Authority workers annually on Form 943 December 30, 2008, are contained in Section 105(e) of the Federal Alcohol (Employer’s Annual Tax Return for § 31.6302–1T as in effect prior to Administration Act (FAA Act), 27 Agricultural Employees) and reports December 30, 2008. The rules of U.S.C. 205(e), authorizes the Secretary wages paid to nonfarm workers paragraphs (b)(4) and (f)(4) of this of the Treasury to prescribe regulations quarterly on Form 941 or annually on section that apply to taxable years for the labeling of wine, distilled spirits, Form 944. Accordingly, an agricultural beginning before January 1, 2006, are and malt beverages. The FAA Act employer must treat employment taxes contained in § 31.6302–1 as in effect provides that these regulations should, reportable on Form 943 (‘‘Form 943 prior to January 1, 2006. The rules of among other things, prohibit consumer taxes’’) separately from employment paragraph (g) of this section eliminating deception and the use of misleading taxes reportable on Form 941 or Form use of Federal tax deposit coupons statements on labels, and ensure that 944 (‘‘Form 941 or Form 944 taxes’’). apply to deposits and payments made labels provide the consumer with Form 943 taxes and Form 941 or Form after December 31, 2010. adequate information as to the identity 944 taxes are not combined for purposes * * * * * and quality of the product. The Alcohol

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77678 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

and Tobacco Tax and Trade Bureau • A copy of the appropriate United Previous Proposed Rulemaking (TTB) administers the regulations States Geological Survey (USGS) map(s) promulgated under the FAA Act. showing the location of the proposed Previously, a group of Napa Valley Part 4 of the TTB regulations (27 CFR viticultural area, with the boundary of grape growers proposed the part 4) allows the establishment of the proposed viticultural area clearly establishment of the 11,200-acre definitive viticultural areas and the use drawn thereon; and ‘‘Tulocay’’ American viticultural area in approximately the same area as the of their names as appellations of origin • A detailed narrative description of on wine labels and in wine proposed Coombsville viticultural area. the proposed viticultural area boundary Consequently, TTB published Notice advertisements. Part 9 of the TTB based on USGS map markings. regulations (27 CFR part 9) sets forth No. 68 in the Federal Register (71 FR standards for the preparation and Petition for the Coombsville Viticultural 65432) on November 8, 2006, to propose submission of petitions for the Area the establishment of the Tulocay establishment or modification of viticultural area. However, comments American viticultural areas and lists the TTB received a petition from Thomas received in response to Notice No. 68 approved American viticultural areas. Farella of Farella-Park Vineyards and raised a substantial question as to Bradford Kitson, on behalf of the whether there was a sufficient basis to Definition vintners and grape growers in the conclude that the geographical area Section 4.25(e)(1)(i) of the TTB Coombsville region of Napa Valley, described in the petition was locally or regulations (27 CFR 4.25(e)(1)(i)) defines California, proposing the establishment nationally known as ‘‘Tulocay.’’ a viticultural area for American wine as of the Coombsville viticultural area. The Additionally, the evidence provided by a delimited grape-growing region having proposed viticultural area contains the commenters and other information distinguishing features as described in 11,075 acres, 1,360 acres of which are in available suggested the likelihood of part 9 of the regulations and a name and 26 commercial vineyards, according to confusion if the term ‘‘Tulocay’’ would a delineated boundary as established in the petition. The proposed viticultural suddenly be attributed only to grapes part 9 of the regulations. These area lies within the Napa Valley grown from a geographical area, as the designations allow vintners and viticultural area (27 CFR 9.23) and the term ‘‘Tulocay’’ has been identified with consumers to attribute a given quality, larger, multicounty North Coast a particular winery for more than 30 reputation, or other characteristic of a viticultural area (27 CFR 9.30). The years. Based on the comments received wine made from grapes grown in an area distinguishing features of the proposed in response to Notice No. 68, TTB to its geographic origin. The Coombsville viticultural area include published Notice No. 84 in the Federal Register (73 FR 34902) on June 19, 2008, establishment of viticultural areas geology, geography, climate, and soils. withdrawing Notice No. 68. allows vintners to describe more TTB notes that the proposed However, TTB did not preclude accurately the origin of their wines to Coombsville viticultural area adjoins or consumers and helps consumers to consideration of the current petition in is located near four established Notice No. 84. In fact, TTB stated: identify wines they may purchase. viticultural areas: the Oak Knoll District Establishment of a viticultural area is ‘‘* * * currently there is no petition of Napa Valley viticultural area (27 CFR neither an approval nor an endorsement requesting the establishment of a 9.161), the Los Carneros viticultural area by TTB of the wine produced in that viticultural area in the subject area (27 CFR 9.32), the Wild Horse Valley area. using a variation of Tulocay, such as viticultural area (27 CFR 9.124), and the Tulocay District, or any other name, Requirements Solano County Green Valley viticultural such as Coombsville or Coombsville Section 4.25(e)(2) of the TTB area (27 CFR 9.44). The Oak Knoll District. It is noted that these findings regulations outlines the procedure for District of Napa Valley viticultural area do not preclude future consideration of proposing an American viticultural area to the northwest and the Los Carneros a petition, supported by sufficient name and provides that any interested party viticultural area to the southwest share evidence, proposing the establishment may petition TTB to establish a grape- portions of their boundary lines with of a viticultural area in the subject area growing region as a viticultural area. those of the proposed viticultural area. using a name other than ‘Tulocay.’ ’’ Section 9.12 of the TTB regulations (27 The Wild Horse Valley viticultural area Notice No. 84 further noted that some CFR 9.12) prescribes standards for to the east and the Solano County Green comments in response to Notice No. 68 petitions for the establishment or Valley viticultural area to the southeast expressed a preference for the name modification of viticultural areas. Such are close to, but do not touch, the ‘‘Coombsville’’ for the proposed petitions must include the following: eastern boundary line of the proposed viticultural area rather than the • Evidence that the area within the Coombsville viticultural area. petitioned-for ‘‘Tulocay’’ name. proposed viticultural area boundary is The petition states that four bonded TTB further notes that the eastern nationally or locally known by the wineries use the ‘‘Coombsville’’ name portion of the boundary line for the viticultural area name specified in the on one or more of their wine labels: proposed Coombsville viticultural area petition; Bighorn Cellars, Laird Family Estate, differs from that of the proposed • An explanation of the basis for Farella-Park Vineyards, and Monticello Tulocay viticultural area boundary line defining the boundary of the proposed Cellars. All four wineries have advised in order to keep the proposed viticultural area; TTB in writing that if the Coombsville Coombsville viticultural area within • A narrative description of the viticultural area is established, they will Napa County and the Napa Valley features of the proposed viticultural area be able to comply with the rule that at viticultural area. This boundary change that affect viticulture, such as climate, least 85 percent of the wine must be results in a 125-acre reduction of the geology, soils, physical features, and produced from grapes grown within the total area, from 11,200 acres for the elevation, that make it distinctive and boundary of the Coombsville previously proposed Tulocay distinguish it from adjacent areas viticultural area in order to use the viticultural area to 11,075 acres for the outside the proposed viticultural area ‘‘Coombsville’’ name on the label as an currently proposed Coombsville boundary; appellation of origin. viticultural area.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77679

Name Evidence for the Proposed listings. One realtor listing on July 7, region appeared on Coombsville Viticultural Area 2009, described a property as ‘‘situated AppellationAmerica.com: the The petition states that ‘‘Coombsville’’ in the prestigious and desirable Coombsville region is described as ‘‘the is the commonly used name for an area Coombsville area.’’ Another realtor hottest spot for grapes these days in the that lies east of the City of Napa, listing from 2008 described a property Napa Valley’’ and it is circled on a map California. In addition, the area east of as ‘‘Coombsville Area at Its Best!’’ The of the Napa Valley in ‘‘Why Cool the City of Napa is designated as petition includes the following Coombsville is HOT’’ (Oct. 8, 2008); and ‘‘Coombsville’’ on the Napa County description of a proposed new housing a 1995 acquisition of 20 acres of Land Use Plan 2008–2030 map. The development in the region: ‘‘The project vineyards in the Coombsville region is petition also states that the Coombsville is off of Wyatt Road, on the frontier detailed in ‘‘The Wonders of Mountain where the residences of east Napa meet Terroir: Let Robert Craig Explain’’ (Feb. region has always had a separate the open space and rural feel of 7, 2007). identity from the City of Napa. Early on, Coombsville’’ (‘‘No middle ground in the City of Napa grew in increments, Boundary Evidence Napa County,’’ op. cit., Oct. 23, 2005). eventually ‘‘swallowing up the easterly Fifty-five acres in the region purchased According to USGS maps submitted suburb of Coombsville’’ (‘‘Napa Valley for real estate development is described with the petition, the proposed Heyday,’’ Richard H. Dillon, The Book in the petition as, ‘‘* * * in the Coombsville viticultural area is nestled Club of California, 2004, page 119). Coombsville area of Napa County, in the southeastern region of the Napa The petition states that, as early as scrub-covered slopes at the south end of Valley viticultural area, between the 1914, an unincorporated area of Napa the valley * * *’’ (‘‘The Far Side of eastern shores of both the Napa River County became commonly known as the Eden—New Money, Old Land and the and Milliken Creek and the western ‘‘Coombsville’’ region, named for Battle for Napa Valley,’’ James Conaway, ridgeline of the Vaca Range at the Nathan Coombs, a prominent Houghton Mifflin Company, 2002, page Solano County line. The west-facing, community leader and founder of the 50). horseshoe-shaped southern tip of the City of Napa. Mr. Coombs owned 2,525 The petition notes that the Vaca Range encircles much of the acres of land on 3 parcels to the east of Coombsville name has long been proposed Coombsville viticultural area the Napa River, in the area now called associated with viticulture. The petition and defines parts of the northern, ‘‘Coombsville’’ (‘‘Official Map of the states that the history of grape-growing eastern, and southern portions of the County of Napa,’’ California, 1876). in the Coombsville region dates to 1870, boundary line, according to the petition, According to the petition, the original when the Carbone family purchased a boundary description, and USGS maps. Coombsville Road, little more than an large land parcel on Coombsville Road According to the boundary unnamed path, existed more than 120 (‘‘Napa Valley Heyday,’’ Richard H. description in the petition, the eastern years ago (‘‘Map of Coombsville,’’ Dillon, The Book Club of California, portion of the boundary line of the survey map, W. A. Pierce, ‘‘County Road 2004, page 100). Around 1880, Antonio proposed Coombsville viticultural area from Napa to Green Valley,’’ 1883). Carbone opened a winery (ibid.). The incorporates straight lines between Currently, Napa city and county road historic winery still exists and is now western peaks of the Vaca Range. The signs identify Coombsville Road where used as a private residence, the petition eastern portion of the boundary line the road intersects with Third Street and explains. The petition further states that corresponds in part to, but does not the Silverado Trail. Coombsville Road is modern vineyard plantings include: overlap, the western portions of the entirely within the boundary line of the Farella-Park Vineyards; Stag’s Leap boundary lines of the Wild Horse Valley proposed Coombsville viticultural area Wine Cellars’ Arcadia Vineyards; Far and Solano County Green Valley (‘‘Napa Valley,’’ map, California State Niente Winery’s Barrow Lane, viticultural areas and stays within Napa Automobile Association, May 2004). Carpenter, and John’s Creek Vineyards; County. The petition cited several Napa Berlenbach Vineyards; and Richard As detailed in the boundary County newspaper reports to Perry Vineyards. description in the petition, the southern demonstrate that the Coombsville name The petition explains that portion of the boundary line of the is commonly used to refer to the region ‘‘Coombsville’’ has national name proposed Coombsville viticultural area within the proposed viticultural area. recognition because of its renown as a follows a straight southeast-to-northwest For example, a newspaper report stated: wine region in Napa Valley. The line from a map point in Kreuse Canyon ‘‘A week ago, Patrick Sexton’s backyard following reports were published by to Imola Avenue, and then continues in Coombsville was a riotous place, with Wine Spectator: ‘‘Putting Coombsville west on Imola Avenue to the Napa a gobble-gobble here, a gobble-gobble on the map for Napa Cabernet’’ (July 31, River. there, a gobble-gobble everywhere’’ 2001), regarding a vintner who believes According to the petition, and as (‘‘Napa High senior raises great he can make one of the top cabernets in visible on the USGS maps, an east-west gobblers,’’ The Napa Valley Register, the Napa Valley region; ‘‘Caldwell transverse ridge that climatically Nov. 27, 2008). Another report describes Vineyards’’ (Nov. 15, 2002), regarding protects the Coombsville region from a downed power line that cut off the first time that John Caldwell the full impact of the marine influence electricity to 2,200 Coombsville produced wine from a 60-acre of the San Pablo Bay lies beyond the residential customers overnight (‘‘Lights Coombsville vineyard; ‘‘Franciscan proposed southern portion of the out again in Coombsville area,’’ op. cit., Buys Large Parcel of Napa Land’’ boundary line. Commonly known as Sept. 3, 2008). A third report describes (March 15, 1999), describing a 160-acre ‘‘Suscol,’’ ‘‘Soscol,’’ or ‘‘Soscol Ridge,’’ a political district including property in the Coombsville region; and the ridge separates the Coombsville Coombsville, American Canyon, and ‘‘James Laube Unfined—An Armchair region from large portions of the Napa part of [the City of] Napa (‘‘Local ballot Winery ‘Tour’ with Philippe Melka’’ Valley flood plain’s differing soils and for June takes shape,’’ op. cit., March 12, (Aug. 10, 2007), detailing the broad slough topography. The petition 2008). acquisition of Coombsville-grown states that the complex terrain of the The petition also states that the Napa cabernet grapes to produce wine. ridge was difficult to use as a precise County real estate industry recognizes The petition also states that the and reasonable southern portion of the the Coombsville region in its sale following reports on the Coombsville boundary line for the proposed

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77680 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Coombsville viticultural area petition. Coombsville region, the western front of According to USGS maps, elevations Hence, a straight line between two map the caldera collapsed and slid westward within the proposed Coombsville points and a portion of Imola Avenue as a large landslide into the valley viticultural area vary from about 10 feet was used to define the southern limits below (ibid.). The ancient Napa River along Milliken Creek and the Napa of the proposed Coombsville viticultural removed most of the landslide debris River shoreline to 1,877 feet at the peak area. TTB believes that the straight line from the Napa Valley (ibid.). The of Mt. George, at the northeast corner of and Imola Avenue are a reasonable remaining debris formed a raised the proposed Coombsville viticultural alternative for the proposed southern structure in the valley, and the area along the western ridge of the Vaca portion of the boundary line. remaining portion of the caldera formed Range. The landforms along the According to the boundary a horseshoe-shaped ridge to the east. remaining caldera wall that forms the description and the USGS Napa This area is referred to on USGS maps edge of the ‘‘saucer’’ vary from Quadrangle map, the western portion of of the Coombsville area as the ‘‘cup and approximately 500 to 1,200 feet in saucer,’’ since the raised area resembles the boundary line of the proposed elevation, some having steep terrain. a teacup sitting within the curved Coombsville viticultural area relies on The raised ‘‘cup’’ portion of the cup- portions of the Napa River and Milliken ‘‘saucer’’ formed by the remaining ridge and-saucer formation exceeds 400 feet Creek to connect Imola Avenue to the of the caldera. in elevation in some areas. The south with Monticello Road to the The petition states that the earth surrounding gentle slopes and rolling north. TTB notes that the southwest surface materials that cover the terrain which form the bottom of the corner of the proposed viticultural area, proposed Coombsville viticultural area at the intersection of Imola Avenue and originated in a variety of ways. A thin ‘‘saucer’’ vary from approximately 100 the Napa River, touches but does not coat of residual debris on volcanic to 200 feet in elevation. The flood plain overlap the eastern portion of the bedrock covers the hills. Within the along the western boundary line varies boundary line of the Los Carneros remains of the caldera, alluvial gravels in elevation from 10 to 20 feet along viticultural area. of the Huichica Formation occur in the Milliken Creek and the Napa River. According to the boundary northern part and diatomaceous lake According to the petition, the description, the northern portion of the deposits occur along the northeast edge. combination of unique landforms and boundary line of the proposed The remainder of the surface material is large elevation differences gives the Coombsville viticultural area uses a variety of alluvial deposits laid down proposed Coombsville viticultural area a Monticello Road and a straight line from since the ancient volcanic collapse fog-protected partial basin with high (ibid.). the road’s intersection with the 400-foot surrounding ridges. The aerial contour line eastward to the peak of Mt. The petition did not include data on the geology of the surrounding areas. photograph submitted with the petition George. Much of the length of the shows Coombsville as an isolated niche proposed northern portion of the Geography within the larger, more open terrain of boundary line follows a ridge line from As shown in the aerial photograph the Napa Valley viticultural area. Also, the Vaca Range along Milliken Creek, submitted with the petition, the most the USGS maps indicate that the Vaca according to the USGS maps submitted notable geographical characteristic of Range to the east provides a natural with the petition. TTB notes that the the proposed Coombsville viticultural geographical boundary for the proposed northwest corner of the proposed area is a horseshoe-shaped, elevated viticultural area. viticultural area, at the intersection of landform, part of the Vaca Range (‘‘The According to the USGS maps and the Milliken Creek and Monticello Road, Winemaker’s Dance—Exploring Terroir touches but does not overlap the petition, the regions surrounding the in the Napa Valley’’). The west-facing proposed Coombsville viticultural area southeast corner of the Oak Knoll horseshoe comprises a ring of volcanic District of Napa Valley viticultural area. have different geographies. To the mountains, according to the petition. northwest of the proposed viticultural The elevated cup-and-saucer landform Distinguishing Features area lies the Oak Knoll District of Napa lies partially within the curvature of the Valley viticultural area, which can be Geology horseshoe on the western side of the distinguished from the proposed The petition describes the ancient proposed viticultural area. A small flood Coombsville viticultural area by its low volcanic and crustal uplift events in the plain lies along the proposed western geologic history of the Coombsville portion of the boundary line near the valley floor elevations and the dry creek region (‘‘The Geologic Origin of the Napa River and Milliken Creek, the alluvial fan. To the west lies the City of Coombsville Area,’’ EarthVision, Inc., petition explains. The petition states Napa. To the southwest lies the Los May 2009). According to the petition that gentle slopes and rolling terrain Carneros viticultural area, which can be and the above report, the initial extend westward from the Vaca Range distinguished from the proposed geological event was the eruption and and the opening of the horseshoe to the viticultural area by its low rolling hills, collapse of a volcano that was part of Napa River and Milliken Creek, and that flatlands, and mountainous terrain. To the Napa Valley-Sonoma volcanic most viticultural activity occurs within the southeast lies the Solano County series. The collapse of the volcano this area. The petition states that the Green Valley viticultural area, with a created a bowl-shaped structure known Milliken-Sarco-Tulocay watershed, more rugged terrain than the proposed as a caldera, which formed the basis for named after the three main creeks in the Coombsville viticulture area. To the east the ‘‘cup and saucer’’ topography within region, lies within the proposed lies the Wild Horse Valley viticultural the Coombsville region. Coombsville viticultural area. The cup- area, which can be distinguished from The petition states that the next and-saucer landform presents a drainage the proposed viticultural area by its important geologic process began when obstacle, making Sarco Creek detour to isolated valley and the surrounding crustal forces started to uplift and the north and Tulocay Creek flow to the steep, rugged terrain and high wrinkle the earth crust in the Vaca south. Eventually, all drainage flows to elevations. To the northeast are the Vaca Range. The uplift progressed from east the southwest and joins with the south- Mountains, which can be distinguished to west through the Vaca Range. When flowing Napa River, the petition from the proposed viticultural area by the uplift passed through the explains. their rugged terrain.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77681

Climate the petitioner, the isolated Wild Horse created in partnership with the National Valley and Solano County Green Valley Climatic Data Center, Regional Climate The petition states that the proposed viticultural areas, to the immediate east Centers, and State Climate Offices. viticultural area has climatically unique of the proposed Coombsville viticultural The table below presents average features, including precipitation and area, lack available weather station data. annual precipitation amounts and heat heat summation. The petition provides In considering this petition, TTB summation range totals for the statistical information on the obtained historic weather station data Coombsville region, the Los Carneros microclimates of the adjacent Los for surrounding north, east, south, and and Oak Knoll District of Napa Valley Carneros and Oak Knoll District of Napa west regions within 15 miles or less of viticultural areas, and the surrounding Valley viticultural areas, which are both the proposed Coombsville viticultural north, east, south, and west weather within the larger Napa Valley area (Lake Berryessa, Fairfield, Napa station areas. The table data is based viticultural area (‘‘The Micro-Climate of State Hospital, and the City of Napa, primarily on petition documentation the Coombsville Viticultural Area,’’ Erik respectively) from the Western Region and also TTB’s WRCC Web site data Moldstad, Sept. 28, 2009). According to Climate Center (WRCC) Web site, research.

Oak Knoll Los Carneros District of Climatic averages for Coombsville viticultural Napa Valley Lake Fairfield Napa State City of Napa Coombsville region and region area viticultural Berryessa (east) Hospital (west) surrounding areas (southwest) area (north) (south) (northwest)

Years ...... 2006–2008 2006–2008 2006–2008 1957–1970 1950–2009 1893–2009 1903–1965

Precipitation in inches—annual aver- age ...... 19.14 17.32 21.63 24.44 22.77 24.61 24.02

Years ...... 1974–2007 1974–2007 1974–2007 1974–2007 1950–2009 1893–2009 1903–1965

Heat summation units— annual average...... 2,550 2,435 2,888 2,611 2,667 2,794 3,233

The table shows that precipitation in mean temperature is above 50 degrees, The petition states that the effects of the proposed Coombsville viticultural which is the minimum temperature the presence and disappearance of fog area averages 19.14 inches annually, required for grapevine growth. Climatic from the Napa Valley region in the day and varies from the surrounding region I has less than 2,500 growing alters the temperature rise in the grape- viticultural microclimates. The degree days (GDD) per year; region II, growing season. Temperature and Coombsville region is warmer and 2,501 to 3,000; region III, 3,001 to 3,500; sunlight have subtle effects on grape wetter than the Los Carneros viticultural region IV, 3,501 to 4,000; and region V, development that, over the growing area to the southwest and cooler and 4,001 or more. season, affect grape ripening times and drier than the Oak Knoll District of According to the table, the flavors. The pace of sugar accumulation Napa Valley viticultural area to the Coombsville region is a low Winkler and the pace of the lessening of acidity northwest, according to Michael Wolf, region II (2,550 GDD units), which is during grape ripening are two examples owner of Michael Wolf Vineyard cooler by 61 to 683 degree units than the of how the fog affects grape Services. To the northwest, the Oak four surrounding areas from which development. The petition notes that Knoll District of Napa Valley weather station data was obtained by grape growers in the cooler Los Carneros viticultural area averages 2.5 inches TTB. The coolest of the four areas is viticultural area, to the south and closer more annual rainfall. To the southwest, Lake Berryessa to the north at 2,611 to the foggy bay, harvest grapes with the Los Carneros viticultural area has GDD units (region II), and the warmest similar sugar and acidity levels for the about 2 inches less rainfall annually. is the City of Napa to the west at 3,233 same varietal as in the Coombsville The data in the table indicates that the GDD units (region III). Also, the adjacent region, but do so later in the growing proposed Coombsville viticultural area Oak Knoll District of Napa Valley season. To the north of the Coombsville averages 3.63 to 5.47 inches less viticultural area is significantly warmer region, in the warmer and less foggy precipitation annually than the four at 2,888 GDD units, a high Winkler Oak Knoll District of Napa Valley surrounding areas for which weather region II. The adjacent Los Carneros viticultural area, the same varietals with station data was obtained by TTB. viticultural area is cooler than the similar sugar and acid levels are The growing season in the proposed proposed Coombsville region (region l) harvested earlier than in the Coombsville viticultural area is at 2,435 GDD units. Coombsville and Los Carneros areas. measured in the Winkler climate The petition states that significant The petition explains that the classification system (‘‘General viticultural factors for the Coombsville Coombsville region has more sunlight Viticulture,’’ Albert J. Winkler, region growing season include the and daytime heat during the growing University of California Press, 1974, amount of solar radiation and daytime season than the Los Carneros pages 61–64). In the Winkler system, heating. The solar radiation and heating viticultural area to the southwest and heat accumulation per year defines are affected by the dissipation rate of less than the Oak Knoll District of Napa climatic regions. As a measurement of morning fog, followed by the number of Valley viticultural area to the northwest. heat accumulation during the growing hours of sunshine, and then the onset of The morning fog generally dissipates season, 1 degree day accumulates for afternoon cooling bay breezes from San about 1 to 2 hours earlier in the each degree Fahrenheit that a day’s Pablo Bay. Coombsville region than in the Los

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77682 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Carneros viticultural area to the incrementally stops rising, or slightly weathered from their primary volcanic southwest, and an hour later than in the decreases. These cool breezes contribute source, while lowland soils are alluvial Oak Knoll District of Napa Valley to the differences in maximum daytime in nature (‘‘A Custom Soil Resource viticultural area to the northwest. Also, temperatures during the growing season Report for Napa County, California— in the afternoon, the bay breezes first for the south-to-north locations in the Coombsville Soils,’’ Natural Resources cool the Los Carneros viticultural area, Los Carneros viticultural area, the Conservation Service, United States then spread slowly northward through Coombsville region, Oak Knoll District Department of Agriculture, http:// the Coombsville region into the Oak of Napa Valley viticultural area, and websoilsurvey.nrcs.usda.gov/, May 27, Knoll District of Napa Valley other Napa Valley viticultural areas. 2009). The petitioner provided the viticultural area, and eventually following table, which shows the Soils continue northward up the Napa Valley. percentages of the predominant soils in According to the petition, as the San The petition explains that the soils of the proposed Coombsville viticultural Pablo Bay afternoon breezes reach the proposed Coombsville viticultural area as compared to surrounding northward to each micro-climate in the area are generally well drained and of regions, based on information contained Napa Valley region, the air temperature volcanic origin. Upland soils are in this report.

Oak Knoll District of Los Carneros Wild Horse West Side Viticultural area Coombsville Napa Valley (SW) Valley Napa River (percent) (NW) (percent) (E) (W) (percent) (percent) (percent)

Predominant Soil Series: Hambright-Rock outcrop ...... 28.5 0.6 0 .2 15 .5 0 Coombs ...... 24.1 5.6 0 1.7 5.0 Sobrante ...... 15.5 1.1 0 16.0 0 Forward ...... 7.4 0.7 7 .9 0 0.4 Haire ...... 4.5 23.0 43.0 0 10 .8 Cole ...... 2.6 23.1 10 .9 0 47 .3

The Hambright-Rock outcrop complex The Proposed Coombsville Viticultural North Coast, or partially overlapping the makes up 28.5 percent of the Area Compared to the North Coast and North Coast,’’ and that ‘‘smaller Coombsville area, as shown on the Napa Valley Viticultural Areas viticultural areas tend to be more above table, and is found in lesser uniform in their geographical and North Coast Viticultural Area concentrations to the north, east, and climatic characteristics, while very large south. The complex is found in the Vaca The North Coast viticultural area was areas such as the North Coast tend to Range and makes up most of the cup- established by T.D. ATF–145, which exhibit generally similar characteristics, and-saucer landform soils (ibid.). was published in the Federal Register in this case the influence of maritime air on September 21, 1983 (48 FR 42973). Coombs gravelly and stony loams off of the Pacific Ocean and San Pablo It includes all or portions of Napa, represent 24.1 percent of the soils in the Bay.’’ Thus, the proposal to establish the Sonoma, Mendocino, Solano, Lake, and Coombsville area, and are found in Coombsville viticultural area is not Marin Counties, California. TTB notes lesser concentrations to the north, east, inconsistent with what was envisaged that the North Coast viticultural area and west, as shown on the above table. when the North Coast viticultural area contains all or portions of In addition, those soils are the main was established. approximately 40 established types appropriate for grape growing in viticultural areas, in addition to the area Napa Valley Viticultural Area the Coombsville region. They are covered by the proposed Coombsville The Napa Valley viticultural area was alluvial, well drained soils at elevations viticultural area. In the conclusion of established by T.D. ATF–79, which was of 50 to 500 feet. The Coombs soils are the ‘‘Geographical Features’’ section of published in the Federal Register on ‘‘relatively unique to the area,’’ and they the preamble, T.D. ATF–145 states that January 28, 1981 (46 FR 9061), includes were likely first identified in the ‘‘[d]ue to the enormous size of the North most of Napa County, California. As Coombsville area, according to the Coast, variations exist in climatic noted in T.D. ATF–79, the Napa Valley petition. Coombs soils make up only 1.7 features such as temperature, rainfall, viticultural area encompasses ‘‘all the percent of the soils in Napa County, but and fog intrusion.’’ areas traditionally known as ‘Napa they account for almost a quarter of the The proposed Coombsville Valley’ which possess generally similar Coombsville region soils (ibid.). viticultural area shares the basic viticulture characteristics different from As shown on the table, Sobrante soils viticultural feature of the North Coast those of the surrounding areas.’’ TTB make up 15.5 percent of the viticultural area: the marine influence notes that the Napa Valley viticultural Coombsville region, 16 percent to the that moderates growing season area encompasses 14 existing smaller east in Wild Horse Valley, and a much temperatures in the area. However, the viticultural areas, in addition to the area lesser concentration to the northwest. proposed viticultural area is much more covered by the proposed Coombsville These soils are well drained and are at uniform in its geography, geology, viticultural area. elevations of 120 feet and higher. climate, and soils than the diverse The Coombsville petition states that a As shown on the table, soils found in multicounty North Coast viticultural Mediterranean climate of warm, dry lesser concentrations in the proposed area. In this regard, TTB notes that T.D. summers and cool, moist winters Coombsville viticultural area include ATF–145 specifically states that dominates the Napa Valley region. Air Haire and Cole, which have higher ‘‘approval of this viticultural area does temperatures in the valley increase from concentrations in three of the not preclude approval of additional south to north based on the dissipation surrounding areas. areas, either wholly contained with the of the marine fog and cooling winds

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77683

from the San Pablo Bay to the south. a typographical error in the boundary viticultural area will not affect any Precipitation amounts are greater at the description in paragraph (c)(12) of the existing viticultural area, and any north end of the valley, at higher proposed regulatory text, which is bottlers using Napa Valley or North elevations, and in the Mayacmas described in more detail below. There Coast as an appellation of origin or in Mountains on the west side of the were no comments submitted in a brand name for wines made from valley. Sun exposure is greater on the opposition to Notice No. 119. grapes grown within the Coombsville east side of Napa Valley along the TTB Finding viticultural area will not be affected by southwest face of the Vaca Range, the establishment of this new including the Coombsville region, as After careful review of the petition viticultural area. The establishment of compared to the western valley foothills and the comments received during the the Coombsville viticultural area will of the Mayacmas Mountains. comment period, TTB finds that the allow vintners to use ‘‘Coombsville,’’ According to T.D. ATF–79, the Napa evidence provided by the petitioner ‘‘Napa Valley,’’ and ‘‘North Coast’’ as Valley viticultural area contains supports the establishment of the appellations of origin for wines made proposed Coombsville viticultural area varieties of both Coombs and Sobrante from grapes grown within the soils, which are prominent in the within the Napa Valley and North Coast Coombsville viticultural area. Coombsville region. The Napa Valley viticultural areas, as proposed in Notice viticultural area also includes other soil No. 119, with the alteration to the For a wine to be labeled with a types, including Bale, Cole, Yolo, Reyes, boundary description as discussed viticultural area name or with a brand and Clear Lake. The latter soil types are below. Accordingly, under the authority name that includes a viticultural area not prominent or are not present in the of the Federal Alcohol Administration name or other term identified as being proposed Coombsville viticultural area, Act and part 4 of the TTB regulations, viticulturally significant in part 9 of the according to the petition. Thus, while TTB establishes the ‘‘Coombsville’’ TTB regulations, at least 85 percent of the characteristics of the proposed viticultural area in Napa County, the wine must be derived from grapes Coombsville viticultural area are California, effective 30 days from the grown within the area represented by generally similar to those of the Napa publication date of this document. that name or other term, and the wine Valley viticultural area, there are some must meet the other conditions listed in Boundary Description distinguishing characteristics that 27 CFR 4.25(e)(3). If the wine is not warrant its separate designation as a See the narrative boundary eligible for labeling with the viticultural viticultural area. description of the viticultural area in the area name or other viticulturally regulatory text published at the end of Notice of Proposed Rulemaking and significant term and that name or term this document. In this final rule, TTB Comments Received appears in the brand name, then the altered some of the language in the label is not in compliance and the TTB published Notice No. 119 written boundary description published bottler must change the brand name and regarding the proposed Coombsville as part of Notice No. 119, to conform the obtain approval of a new label. viticultural area in the Federal Register written boundary description to the Similarly, if the viticultural area name on May 24, 2011 (76 FR 30052). In that boundary of the proposed viticultural or other term of viticultural significance notice, TTB requested comments from area as marked on the USGS maps and all interested persons by July 25, 2011. appears in another reference on the the written description submitted with label in a misleading manner, the bottler TTB solicited comments on the the petition. As noted in comment 17, accuracy of the name, boundary, would have to obtain approval of a new in paragraph (c)(12) of the proposed label. climactic, and other required regulatory text, the word ‘‘northwest’’ information submitted in support of the should have read ‘‘northeast.’’ Different rules apply if a wine has a petition. TTB expressed particular Paragraph (c)(12) of the final regulatory brand name containing a viticultural interest in whether the distinguishing text contains the correct term area name or other viticulturally features of the proposed viticultural area ‘‘northeast.’’ significant term that was used as a are sufficiently different from the brand name on a label approved before established Napa Valley and North Maps July 7, 1986. See 27 CFR 4.39(i)(2) for Coast viticultural areas, within which The petitioner provided the required details. the proposed area lies. Additionally, maps, and TTB lists them below in the TTB asked if the geographic features of regulatory text. Regulatory Flexibility Act the proposed viticultural area are so TTB certifies that this regulation will distinguishable from the surrounding Impact on Current Wine Labels not have a significant economic impact Napa Valley and North Coast Part 4 of the TTB regulations prohibits on a substantial number of small viticultural areas that the proposed any label reference on a wine that entities. The regulation imposes no new Coombsville viticultural area should no indicates or implies an origin other than reporting, recordkeeping, or other longer be part of those viticultural areas. the wine’s true place of origin. With the TTB received 50 comments in establishment of this viticultural area, administrative requirement. Any benefit response to Notice No. 119. The its name, ‘‘Coombsville,’’ is recognized derived from the use of a viticultural commenters included 26 self-identified as a name of viticultural significance area name would be the result of a wine industry members and one self- under 27 CFR 4.39(i)(3). The text of the proprietor’s efforts and consumer identified representative of a trade new regulation clarifies this point. Once acceptance of wines from that area. association, the Napa Valley Vintners. this final rule becomes effective, wine Therefore, no regulatory flexibility Forty-nine of the comments express bottlers using ‘‘Coombsville’’ in a brand analysis is required. support for the proposed Coombsville name, including a trademark, or in Executive Order 12866 viticultural area, and many note the another label reference as to the origin unique climate and distinctive of the wine, will have to ensure that the This rule is not a significant geography of the proposed viticultural product is eligible to use the viticultural regulatory action as defined by area as described in Notice No. 119. The area’s name as an appellation of origin. Executive Order 12866. Therefore, it remaining comment, comment 17, notes The establishment of the Coombsville requires no regulatory assessment.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77684 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Drafting Information marked 1,775-foot elevation point, to DEPARTMENT OF THE TREASURY Karen A. Thornton of the Regulations the intersection of the T6N and T5N Alcohol and Tobacco Tax and Trade and Rulings Division drafted this notice. common line and the 1,600-foot elevation line; then Bureau List of Subjects in 27 CFR Part 9 (5) Proceed south-southeast in a 27 CFR Part 9 Wine. straight line for 1.1 miles to the 1,480- The Regulatory Amendment foot elevation point along the section 9 north boundary line, T5N/R3W; then [Docket No. TTB–2011–0004; T.D. TTB–98; For the reasons discussed in the Re: Notice Nos. 34, 42, and 117] preamble, TTB amends title 27, chapter (6) Proceed south-southwest in a I, part 9, Code of Federal Regulations, as straight line for 1.3 miles to the 1,351- RIN 1513–AA64 follows: foot elevation point, section 16, T5N/ R3W; then Establishment of the Fort Ross- PART 9—AMERICAN VITICULTURAL (7) Proceed south-southwest in a Seaview Viticultural Area AREAS straight line for 1.5 miles to the AGENCY: Alcohol and Tobacco Tax and ■ 1. The authority citation for part 9 intersection with two unimproved dirt Trade Bureau, Treasury. roads and the 1,360-foot elevation line continues to read as follows: ACTION: in Kreuse Canyon at the headwaters of Final rule; Treasury decision. Authority: 27 U.S.C. 205. the intermittent Kreuse Creek, northeast SUMMARY: This Treasury decision Subpart C—Approved American of Sugarloaf, section 20, T5N/R3W; then establishes the 27,500-acre ‘‘Fort Ross- Viticultural Areas (8) Proceed northwest in a straight Seaview’’ viticultural area in the line for 1.95 miles to the 90-degree turn western part of Sonoma County, ■ 2. Subpart C is amended by adding of Imola Avenue at the 136-foot California. TTB designates viticultural § 9.223 to read as follows: elevation point, section 13, T5N/R4W; areas to allow vintners to better describe § 9.223 Coombsville. then the origin of their wines and to allow consumers to better identify wines they (a) Name. The name of the viticultural (9) Proceed west along Imola Avenue may purchase. area described in this section is for 2.1 miles, crossing from the Mt. ‘‘Coombsville’’. For purposes of part 4 of George map onto the Napa map, to the DATES: Effective Date: January 13, 2012. this chapter, ‘‘Coombsville’’ is a term of intersection of Imola Avenue with the FOR FURTHER INFORMATION CONTACT: viticultural significance. Napa River at the Maxwell Bridge, T5N/ Elisabeth C. Kann, Regulations and (b) Approved maps. The two United R4W; then Rulings Division, Alcohol and Tobacco States Geological Survey 1:24,000 scale Tax and Trade Bureau, 1310 G St. NW., (10) Proceed north (upstream) along topographic maps used to determine the Room 200E, Washington, DC 20220; the Napa River for 3.2 miles, crossing boundary of the Coombsville phone (202) 453–1039, ext. 002. viticultural area are titled: over the T6N/T5N common line, to the SUPPLEMENTARY INFORMATION: (1) Mt. George Quadrangle, California, intersection of the Napa River with 1951, Photoinspected 1973; and Milliken Creek, T6N/R4W; then Background on Viticultural Areas (2) Napa Quadrangle, California-Napa (11) Proceed north (upstream) along TTB Authority Co., 1951, Photorevised 1980. Milliken Creek for 0.75 mile to the (c) Boundary. The Coombsville intersection of Milliken Creek with Section 105(e) of the Federal Alcohol viticultural area is located in Napa Monticello Road, T6N/R4W; then Administration Act (FAA Act), 27 County, California. The boundary of the U.S.C. 205(e), authorizes the Secretary Coombsville viticultural area is as (12) Proceed northeast along of the Treasury to prescribe regulations described below: Monticello Road for 2.4 miles, crossing for the labeling of wine, distilled spirits, (1) The beginning point is on the Mt. from the Napa map onto the Mt. George and malt beverages. The FAA Act George map at the 1,877-foot peak of Mt. map, to the intersection of Monticello provides that these regulations should, George, section 29, T6N/R3W. From the Road with the section 19 west boundary among other things, prohibit consumer beginning point, proceed southeast in a line, T6N/R3W; and then deception and the use of misleading straight line for 0.4 mile to the (13) Proceed east-southeast in a statements on labels and ensure that intersection of the 1,400-foot elevation straight line for 1.4 miles to the labels provide the consumer with line and an unnamed intermittent creek beginning point, section 29, T6N/R3W. adequate information as to the identity that feeds northeast into Leonia Lakes, and quality of the product. The Alcohol section 29, T6N/R3W; then Signed: September 28, 2011. and Tobacco Tax and Trade Bureau (2) Proceed east-southeast in a straight John J. Manfreda, (TTB) administers the regulations line for 0.45 mile to the intersection of Administrator. promulgated under the FAA Act. the 1,380-foot elevation line and an Approved: October 19, 2011. Part 4 of the TTB regulations (27 CFR unnamed, unimproved dirt road, and Timothy E. Skud, part 4) provides for the establishment of then continue in the same straight line definitive viticultural areas and the use Deputy Assistant Secretary, Tax, Trade, and to the section 29 east boundary line, Tariff Policy. of their names as appellations of origin T6N/R3W; then on wine labels and in wine (3) Proceed south-southeast in a [FR Doc. 2011–32018 Filed 12–13–11; 8:45 am] advertisements. Part 9 of the TTB straight line for 0.6 mile to the unnamed BILLING CODE 4810–31–P regulations (27 CFR part 9) sets forth 1,804-foot elevation point in the standards for the preparation, northwest quadrant of section 33, T6N/ submission, and approval of petitions R3W; then for the establishment or modification of (4) Proceed south-southwest in a American viticultural areas and lists the straight line for 1 mile, passing over the approved American viticultural areas.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77685

Definition California (the Shabram-Hirsch Seaview name in recent years. For Section 4.25(e)(1)(i) of the TTB petition). The Shabram-Hirsch petition example, the land within and near the regulations (27 CFR 4.25(e)(1)(i)) defines states that the proposed Fort Ross- proposed viticultural area in the a viticultural area for American wine as Seaview viticultural area, which western part of Sonoma County has a delimited grape-growing region having contains 18 commercial vineyards on been called the ‘‘Fort Ross-Seaview 506 acres, lies close to the Pacific Ocean district’’ (‘‘A Miraculous Intersection: A distinguishing features as described in and about 65 miles north-northwest of Short History of Viticulture and part 9 of the regulations and a name and San Francisco. It lies entirely within the Winegrowing in Western Sonoma a delineated boundary as established in Sonoma Coast viticultural area (27 CFR County’’ by Charles L. Sullivan, 2001), part 9 of the regulations. These 9.116), which lies entirely within the according to the Shabram-Hirsch designations allow vintners and multicounty North Coast viticultural petition. consumers to attribute a given quality, area (27 CFR 9.30). The proposed reputation, or other characteristic of a Boundary Evidence viticultural area would not overlap, or wine made from grapes grown in an area otherwise affect, any other viticultural According to the Shabram-Hirsch to its geographic origin. The areas. petition, viticulture within the proposed establishment of viticultural areas Fort Ross-Seaview viticultural area allows vintners to describe more Name Evidence dates to 1817, when Captain Leontii accurately the origin of their wines to In 1812, Fort Ross was established by Andreianovich Hagemeister planted consumers and helps consumers to Russian fur trappers on a bluff, lying Peruvian grape cuttings at Fort Ross. In identify wines they may purchase. just west of the boundary of the 1973, Michael Bohan planted two acres Establishment of a viticultural area is proposed Fort Ross-Seaview viticultural of grapes three miles east of Fort Ross, neither an approval nor an endorsement area and overlooking the Pacific Ocean, between Seaview Road and Creighton by TTB of the wine produced in that according to the Shabram-Hirsch Ridge. In 1974, he planted another 15 area. petition. The fort served as Russia’s acres, and, in 1976, he started selling his Requirements southernmost outpost in the Pacific grape harvests to wineries in Sonoma Northwest until it was abandoned in and Santa Cruz Counties, California. In Section 4.25(e)(2) of the TTB 1841. Since 1906, the site of the fort has 1980, co-petitioner David Hirsch regulations outlines the procedure for been called the Fort Ross State Historic planted a vineyard between the 1,300- proposing the establishment of an Park; a reconstructed fort now is open and 1,600-foot elevations in the Fort American viticultural area and provides to the public. Seaview is a small, Ross-Seaview area, according to his that any interested party may petition unincorporated community and real April 15, 2003 letter to Mr. Shabram TTB to establish a grape-growing region estate development located along the that was submitted as a supplemental as a viticultural area. Section 9.12 of the Pacific Coast Highway (State Route 1) exhibit to the petition. The petition TTB regulations (27 CFR 9.12) and located nearby and to the north of notes that, in spring 2003, the proposed prescribes standards for petitions for the the park. Much of the Seaview viticultural area contained 18 establishment or modification of community is located within the commercial vineyards on 506 acres. American viticultural areas. Such proposed viticultural area. According to the Shabram-Hirsch petitions must include the following: Fort Ross Road winds through the petition, the boundary of the proposed • Evidence that the area within the southern portion of the proposed Fort viticultural area generally incorporates viticultural area boundary is nationally Ross-Seaview viticultural area, as most of the contiguous 920-foot or locally known by the viticultural area shown on the 1978 USGS Fort Ross elevation line. It also incorporates the name specified in the petition; quadrangle map; also shown on the map ridges, hills, and mountains at higher • An explanation of the basis for are Seaview Cemetery and, extending elevations located along the Pacific defining the boundary of the viticultural northward in the proposed viticultural coast near Fort Ross and Seaview in area; area, Seaview Road. The intersection of western Sonoma County. The 920-foot • A narrative description of the Fort Ross and Seaview Roads lies to the elevation line and the higher elevations features of the viticultural area that northeast of the Fort Ross State Historic separate the sunnier proposed affect viticulture, such as climate, Park (California State Automobile viticultural area from the surrounding geology, soils, physical features, and Association, ‘‘Mendocino and Sonoma foggy areas, which are at lower elevation, that make it distinctive and Coast’’ map, October 2000), according to elevations. distinguish it from adjacent areas the Shabram-Hirsch petition. The western portion of the boundary outside the viticultural area boundary; The Shabram-Hirsch petition states line of the proposed Fort Ross-Seaview • A copy of the appropriate United that the location of the proposed viticultural area is located between 0.5 States Geological Survey (USGS) map(s) viticultural area is commonly called and 2.5 miles from the Pacific coastline showing the location of the viticultural ‘‘Fort Ross-Seaview’’ by local grape and mostly at or above the 920-foot area, with the boundary of the growers. In a letter to Mr. Shabram elevation line, as shown on the USGS viticultural area clearly drawn thereon; explaining the origins and usage of the maps submitted with the Shabram- and proposed ‘‘Fort Ross-Seaview’’ name, Hirsch petition. Coincidentally, the San • A detailed narrative description of Daniel Schoenfeld, a grape grower and Andreas Rift Zone runs generally the viticultural area boundary based on longtime resident, claimed that the Fort parallel to and west of the western USGS map markings. Ross-Seaview name identifies the portion of the proposed boundary line proposed viticultural area and and east of the Pacific coast, as shown The 2003 Fort Ross-Seaview Petition distinguishes the area from other on the USGS maps. Patrick Shabram, on behalf of himself geographic place names. Although all In his 2003 letter, Mr. Hirsch also and David Hirsch of Hirsch Vineyards, three names, ‘‘Fort Ross,’’ ‘‘Seaview,’’ explained that, because coastal fog does submitted a petition in 2003 to establish and ‘‘Fort Ross-Seaview,’’ have been not rise above the 920-foot elevation the 27,500-acre Fort Ross-Seaview used to identify the area, Mr. line, the proposed viticultural area American viticultural area in the Schoenfeld noted an increased receives more hours of solar radiation western part of Sonoma County, incidence in use of the Fort Ross- than the surrounding lower elevations,

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77686 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

which cannot support successful the proposed viticultural area contrast entire coast of Sonoma County (‘‘Lines viticulture. ‘‘During the summer, fog with the relatively younger sedimentary of Heaviest and Average Maximum Fog usually covers the Sonoma Coast during rocks that are the parent material of the Intrusion for Sonoma County,’’ map, by the morning and burns off about noon,’’ soils in the area to the west and that Carol Ann Lawson, 1976). However, he wrote. ‘‘This marine fog layer seldom coincide with the San Andreas Rift TTB notes that this map does not detail rises above 900 feet, which explains Zone. the heavy fog line from the contrasting why there are no vineyards below this The Shabram-Hirsch petition did not warmer and sunnier microclimates at elevation in the proposed area.’’ In include any soils data for the higher elevations, such as that which addition, according to the Shabram- surrounding areas, except for the area to exists in the proposed viticultural area. Hirsch petition, the moderating the west mentioned above. The Shabram-Hirsch petition states that the water temperature of the ocean temperatures of the Pacific Ocean Climate reduce the risk of nighttime freeze and off the Pacific coast to the west of the frost within the proposed viticultural The Shabram-Hirsch petition states proposed viticultural area rarely rises area. that generally the proposed viticultural above 60 degrees Fahrenheit. From mid- area is not directly affected by marine spring to fall, a fogbank is created Distinguishing Features fog. In areas generally above 900 feet in offshore that moves inland through low- The distinguishing features of the elevation, the climate is influenced by elevation mountain gaps and valleys. 27,500-acre proposed Fort Ross-Seaview longer periods of sunlight and is warmer The fog, rarely rising above the 900-foot viticultural area are topography, soils, than that in the surrounding land below elevation line, cools temperatures on and climate, according to the Shabram- 900 feet. The prevalence of marine fog shore and reduces sunshine in the early Hirsch petition. below the 900-foot elevation line causes mornings and late afternoons at the surrounding, lower areas to be elevations of 900 feet or less. Topography cooler and to have a shorter growing Consequently, the proposed viticultural The Shabram-Hirsch petition explains season than that in the proposed area, which lies mainly between the that vineyards within the proposed viticultural area. 920- and 1,800-foot elevation lines, viticultural area are generally located on According to the Shabram-Hirsch receives less fog and more sun during rounded ridges with summits extending petition, the coastal fog and its effects the growing season than the above 1,200 feet. The USGS maps on agriculture were studied for more surrounding, lower areas. submitted with the petition show that than 3 decades by Robert Sisson, former The Shabram-Hirsch petition the proposed viticultural area consists County Director and Farm Advisor for compares the proposed Fort Ross- of steep, mountainous terrain made up Sonoma County (‘‘Guidelines for Seaview viticultural area to the of canyons, narrow valleys, ridges, and Assessing the Viticultural Potential of southwestern portion of the Sonoma 800- to 1,800-foot peaks. The area, Sonoma County: An Analysis of the Coast and nearby Russian River Valley mainly at elevations of between 920 and Physical Environment,’’ M.A. thesis by viticultural areas. Those areas, to the 1,800 feet, has meandering, light-duty or Carol Ann Lawson, University of southwest and to the northeast, unimproved roads and jeep trails and California, Davis, 1976). Mr. Sisson respectively, have cool and scattered creeks and ponds. mapped the diverse climate of the comparatively less sunny climates The Shabram-Hirsch petition did not lowermost, foggy coastal areas that because they generally receive marine include a description of the topography surround some of the higher, sunnier fog and do not lie above the fog line. in the surrounding areas. elevations, according to the petition. The Shabram-Hirsch petition states TTB notes that the Sisson system of that temperatures are roughly Soils climatic classification takes into account comparable during the coolest part of The Shabram-Hirsch petition states the amount of time that a vine is the year at Fort Ross State Historic Park that the soils consist of Yorkville, actually exposed to a certain at the 112-foot elevation level, just west Boomer, Sobrante, Laughlin, and many temperature. The system uses such of the proposed boundary, and at other soils within the proposed Fort terms as ‘‘Coastal Cool’’ and ‘‘Coastal Campmeeting Ridge in Seaview at the Ross-Seaview viticultural area (Soil Warm,’’ which incorporate a method of 1,220-foot elevation level, located Survey of Sonoma County, California, heat summation that takes into account within the proposed viticultural area issued by the Natural Resources not only the highs and lows but the (‘‘Unique Climatic and Environmental Conservation Service, 1990, pp. 44 and number of hours at which temperatures Characteristics of the Proposed Fort 45). Hugo soils are common in the remain in the highly effective Ross-Seaview Viticultural Area,’’ 2001, proposed Fort Ross-Seaview viticultural photosynthesis range of 70 to 90 °F. by Patrick L. Shabram). However, daily area and in the mountain ranges of ‘‘Coastal Cool’’ is designated as having high temperatures during the growing Sonoma County and Mendocino County a cumulative duration of less than 1,000 season May through October and daily to the north of the proposed viticultural hours between 70 °F and 90 °F in April low temperatures in June and from area. Hugo soils are well drained, very through October. August through October are warmer on gravelly loams derived from sandstone The Shabram-Hirsch petition states the ridge than at the park, according to and shale (see publication cited above). that the proposed viticultural area is the petition. Significant growing season The Shabram-Hirsch petition states ‘‘Coastal Cool’’ (‘‘Climate Types of temperature variations occur at points that some soils in the proposed Sonoma County,’’ map, Vassen, 1986). between these lower and higher viticultural area derived from The area can support viticulture, in elevations (see publication cited above). metamorphic rocks and, to a lesser contrast to the surrounding, lower- extent, igneous rocks, but most soils elevation, cooler, less sunny, marine Notices of Proposed Rulemaking and derived from sedimentary rocks climatic areas that cannot sustain Comments Received (untitled maps, by M.E. Huffman and viticulture, according to the petition. TTB published Notice No. 34 C.F. Armstrong, California Department The Shabram-Hirsch petition also regarding the proposed Fort Ross- of Conservation Division of Mines and states that the proposed Fort Ross- Seaview viticultural area in the Federal Geology, reprinted 2000). The petition Seaview viticultural area is in the Register on March 8, 2005 (70 FR also states that the sedimentary rocks in heaviest fog intrusion area, spanning the 11174). In Notice No. 34, TTB invited

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77687

comments from all interested members trademarked ‘‘Fort Ross Winery’’ and located at inland elevations between of the public on or before May 9, 2005. ‘‘Fort Ross Vineyard’’ names, which the 700 and 900 feet, are protected from In response to a request from an owner states would cause irreparable marine fog intrusion by parallel coastal industry member, TTB subsequently economic hardship and potentially ridges at elevations of 920 feet or higher. extended the comment period of Notice cause consumer confusion. The coastal ridges effectively buffer the No. 34 from May 12, 2005 until June 8, Four additional comments, Nos. 1, 5, cooling fog of the Pacific Ocean from 2005 (see Notice No. 42, published in 6, and 7, oppose Notice No. 34 based on inland vineyards, according to the the Federal Register at 70 FR 25000 the proposed boundary line and propose Northern Addition petition. (May 12, 2005)). an alternate boundary line that would Name Evidence: The Northern In Notice No. 34, TTB specifically include an additional area to the north. Addition petition states that, since the invited comments regarding whether According to the four opposing Russian occupation of northern ‘‘Ft. Ross-Seaview,’’ ‘‘Fort Ross,’’ ‘‘Ft. commenters, all of whom own California, the ‘‘Fort Ross’’ name has Ross,’’ and ‘‘Seaview’’ should be vineyards and/or wineries in the area to continuously been used to identify the designated as terms of viticultural the north of the proposed viticultural Sonoma County coastline north of the significance in addition to the full ‘‘Fort area (the Northern Commenters), the Russian River (including the proposed Ross-Seaview’’ name. TTB also solicited vineyards in that area have the same Fort Ross-Seaview viticultural area and comments on the sufficiency and distinguishing features and the proposed Northern Addition). accuracy of the name, boundary, characteristics as the vineyards located Citing historical evidence relating to climatic, and other required information within the proposed Fort Ross-Seaview the Russian occupation’s effect on submitted in support of the petition. viticultural area to the south. The native populations in the early and mid- Northern Commenters contend that the 1800s and the development of the area Comments Received in Response to northern portion of the proposed surrounding Fort Ross by George Notice No. 34 boundary line should extend northward Washington Call in the mid-1870s, the TTB received seven comments in to Buckeye Creek, which would include Northern Addition petition contends response to Notice No. 34. Two a region generally referred to as the that the historically-recognized ‘‘Fort comments support the petition without ‘‘Annapolis area.’’ In addition, two of Ross Region’’ extends northward from qualification, and a third commenter the Northern Commenters also express the Russian River to approximately the supports the proposed viticultural area concern about the use of the ‘‘Fort Ross- Gualala River and six to nine miles but expressed concern about a potential Seaview’’ name, explaining that the inland from the Pacific coastline, and conflict with his brand name if ‘‘Fort ‘‘Fort Ross’’ name is used by the Fort that region includes the proposed Fort Ross’’ or Ft. Ross’’ alone are designated Ross Winery and that the ‘‘Seaview’’ Ross-Seaview viticultural area as well as as terms of viticultural significance. name is used by an Australian sparkling the proposed Northern Addition (‘‘The Four additional comments oppose the wine bottler. Archeology and Ethnohistory of Fort petition on the ground that the proposed In comment 5, one of the Northern Ross, California,’’ by Kent G. Lightfoot, boundary line excludes a region to the Commenters suggested that TTB delay Thomas A. Wake, and Ann M. Schiff, north that the commenters contend has establishing the Fort Ross-Seaview Archaeological Research Facility, similar geographical features as the viticultural area to allow the growers in University of California at Berkeley, petitioned-for viticultural area. the northern area the opportunity to 1991). The Northern Addition petition The commenters in support of Notice gather and submit documentation further notes that the natural No. 34 include co-petitioner David supporting a northern expansion of the environment of the ‘‘Fort Ross Region’’ Hirsch, of Hirsch Vineyards, who has 27,500-acre proposed Fort Ross-Seaview extends, south to north, from the small been growing wine grapes at a vineyard viticultural area (the Northern coastal town of Jenner, located at the at an elevation of 1,500 feet in the Addition). TTB agreed to a delay, and mouth of the Russian River, to the town proposed Fort Ross-Seaview viticultural on November 11, 2005, the Northern of Gualala, located at the mouth of the area since 1980. In comment 2, Mr. Commenters submitted a petition, USGS Gualala River. Hirsch explains the importance of the maps, and a written boundary The Northern Addition petition adds area’s marine-influenced climate, soils, description for a proposed expansion of that the ‘‘Seaview’’ geographical place and topography in producing premium the 27,500-acre proposed Fort Ross- name identifies the tiny coastal grapes in the region. In comment 4, two Seaview viticultural area to include the community of Seaview and Seaview local grape-growers that have been Northern Addition (the Northern Road, which the Northern Addition operating their vineyard on a 1,500-foot Addition petition). petition notes is ‘‘some distance’’ from elevation ridgetop in the proposed the vineyards in the Northern Addition. viticultural area since 1982 explain that The Northern Addition Petition The Northern Addition petition points grape growing is part of the heritage of In the Northern Addition petition, the out, however, that some vineyards in the Fort Ross-Seaview region. Both Northern Commenters petitioned for a the 27,500-acre proposed Fort Ross- comments 2 and 4 emphasize that the 15,726-acre expansion of the proposed Seaview viticultural area are also establishment of the proposed Fort Ross-Seaview viticultural area, located at similar distances from the viticultural area would help consumers which included 28 commercial Seaview community. identify wines made from grapes grown vineyards on about 900 acres as of Given the distance of the Northern in the proposed Fort Ross-Seaview November 11, 2005. The documentation Addition from the Seaview community, viticultural area. included a narrative explaining the the Northern Commenters proposed that In addition, in comment 3, a local basis for the proposal as well as the ‘‘Fort Ross’’ portion of the proposed vineyard and winery owner generally supporting evidence relating to the viticultural area name be modified by an supports the establishment of the historic name usage and distinguishing alternative geographical place name in proposed viticultural area, but the features of the Northern Addition. lieu of ‘‘Seaview’’ that would better owner opposes the designation of ‘‘Fort According to the Northern Addition describe the proposed viticultural area Ross’’ and ‘‘Ft. Ross’’ as viticulturally petition, the Northern Addition is well- with the 15,726-acre Northern Addition, significant terms because it would suited for commercial viticulture such as ‘‘Stewarts Point’’ or create a conflict with the owner’s because the area vineyards, which are ‘‘Annapolis.’’ TTB notes that ‘‘Stewarts

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77688 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Point’’ and ‘‘Annapolis’’ are Buckeye Creek, a tributary of the South Addition consists of steep mountains geographical place names that refer to Fork of the Gualala River, as shown on with 5 to 70 percent slopes, 1,500-foot areas located in or near the Northern USGS maps. The Northern Addition ridgetops, and valleys. In addition, the Addition and are outside the boundary petition states that Buckeye Creek forms first ridgeline inland from the Pacific line of the 27,500-acre proposed Fort a natural boundary line between higher Ocean, which buffers coastal fog, forms Ross-Seaview viticultural area. elevation areas to the south and north. the western portion of the boundary line Alternatively, the Northern Commenters The eastern portion of the proposed of both the 27,500-acre proposed Fort suggested adding ‘‘Region’’ to the ‘‘Fort boundary line for the Northern Addition Ross-Seaview viticultural area and the Ross’’ name or combining ‘‘Fort Ross’’ follows a 600-foot elevation line and proposed Northern Addition, according with ‘‘Sonoma Coast’’ or ‘‘Northern roads on ridgelines between the to the boundary descriptions. Sonoma Coast.’’ generally mountainous coastal terrain Climate: The Northern Addition Boundary Evidence: According to the and the very rugged interior mountains petition asserts that the 27,500-acre Northern Addition petition, the to the east. To the southeast, the proposed Fort Ross-Seaview viticultural proposed boundary line expansion is proposed boundary line for the area and the proposed Northern based on the geographical features of the Northern Addition joins with the Addition share a similar climate, which 15,726-acre Northern Addition, which northeastern portion of the boundary is the primary defining feature of the are similar to the distinguishing line of the 27,500-acre proposed Fort area according to the Northern geographical features of the proposed Ross-Seaview viticultural area, Commenters. 27,500-acre Fort Ross-Seaview according to the Northern Addition The Northern Addition petition viticultural area. petition. compares the data on average annual The Northern Addition petition Distinguishing Features: The Northern heat accumulation, measured in explains that the western portion of the Addition petition contends that the growing degree days 1 (GDD), for three boundary line for the proposed Fort proposed Northern Addition shares the vineyards in the proposed Fort Ross- Ross-Seaview viticultural area would same distinguishing features of Seaview viticultural area to similar data combine with the western portion of the topography, climate, and soils as the for a vineyard located in the proposed proposed boundary line for the proposed Fort Ross-Seaview viticultural Northern Addition. The data for the Northern Addition. The combined area. three vineyards in the proposed Fort boundary line follows a high-elevation Topography: The Northern Addition Ross-Seaview viticultural area ridgeline that limits the inland intrusion petition states that the topography is originated from the Shabram-Hirsch of cooling marine fog off the Pacific similar in both the 27,500-acre proposed petition. According to the data, which is Ocean. The northernmost portion of the Fort Ross-Seaview viticultural area and summarized in the below table, all of proposed boundary line for the the Northern Addition. According to the the vineyards are located in Winkler Northern Addition parallels the 600- to Northern Addition petition, the climatic region II, which has 2,501– 400-foot elevations in the area of topography of the proposed Northern 3,000 GDDs per year.

Average annual Vineyard Location degree days

Jordan ...... 27,500-acre proposed Fort Ross-Seaview viticultural area ...... 2,605 Campmeeting Ridge ...... 27,500-acre proposed Fort Ross-Seaview viticultural area ...... 2,615 Nobles ...... 27,500-acre proposed Fort Ross-Seaview viticultural area ...... 2,580 La Crema ...... Northern Addition ...... 2,580

In addition, according to the Northern The Northern Addition petition Northern Addition) to establish that Addition petition and the above data, all contends that the Marine Cold and both the Northern Addition and the four vineyards have a Coastal Cool Coastal Cool climate classifications are proposed Fort Ross-Seaview viticultural climate using the Sisson system of not rigidly divided at the 900-foot area have warmer temperatures during climactic classification cited in the elevation line, and that the vineyards at the growing season as compared to the Shabram-Hirsch petition, in which areas the lower, 560- to 890-foot elevations in coastal, lower elevation Fort Ross State with degree day accumulations in the the proposed Northern Addition receive Historic Park. As with the proposed Fort higher Region I or lower Region II range adequate solar radiation for grape Ross-Seaview viticultural area, the data are considered to be Coastal Cool. ripening because they are surrounded show that the Northern Addition has According to the Northern Addition by a higher elevation ridge to the west average temperatures that are roughly petition, a map submitted with the that decreases the frequency of fog comparable to those at Fort Ross State Shabram-Hirsch petition that is based intrusion and its concomitant cooling Historic Park when little fog occurs on Sisson’s research also shows that all effects. during the coolest part of the year and of the vineyards in the proposed The Northern Addition petition also in the evenings during the growing Northern Addition are located within provides a comparison of growing season. By contrast, and similar to the the Coastal Cool classification, season temperatures for Fort Ross State proposed Fort Ross-Seaview viticultural including the lower 560- to 890-foot Historic Park (located at the 112-foot area, the Northern Addition has daytime elevations of the vineyards in the elevation to the west of the proposed high temperatures during the growing Northern Addition (Vassen, ‘‘Climate viticultural area) and La Crema season that are significantly higher than Types of Sonoma County Map,’’ 1986). Vineyard (located in the proposed the growing season daytime high

1 In the Winkler climatic classification system, Fahrenheit that a day’s mean temperature is above III, 3,001 to 3,500; region IV, 3,501 to 4,000; and annual heat accumulation during the growing 50 degrees, the minimum temperature required for region V, 4,001 or more (‘‘General Viticulture,’’ by season, measured in annual GDD, defines climatic grapevine growth. Climatic region I has less than Albert J. Winkler, University of California Press, regions. One GDD accumulates for each degree 2,500 GDD per year; region II, 2,501 to 3,000; region 1974, pages 61–64).

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77689

temperatures at Fort Ross State Historic viticultural area, notwithstanding some area vineyard owners ultimately agreed Park. The Northern Addition petitioners similar characteristics. The Shabram that the area is called both the ‘‘Fort attribute these significantly higher response further contends that the Ross area’’ and the ‘‘Seaview area,’’ and temperatures to the warming effect of arguments presented in favor of the that both names are significant to local solar radiation during the daytime that Northern Addition, especially the viticulture (see publication cited above), is similar to the growing season argument premised on the similar resulting in the proposed ‘‘Fort Ross- warming that occurs in the proposed Coastal Cool climate classification in Seaview’’ name. Fort Ross-Seaview viticultural area. both regions, are equally applicable to In further support of the proposed The Northern Addition petition other nearby California coastal regions. Fort Ross-Seaview name, the Shabram explains that the terrain of the region Accordingly, the Shabram response response quotes two Fort Ross vineyard contributes to its distinctive climate argues that an expansion of the owners regarding the significance of the because the high elevation ridge along proposed Fort Ross-Seaview viticultural name. One area grower, Lester the Pacific coastline blocks or slows the area based on the grounds stated in the Schwartz, stated in a supplemental intrusion of marine fog currents flowing Northern Addition petition would exhibit to the petition that ‘‘[t]he inland. According to the Northern warrant a larger expansion into other petitioners chose ‘Fort Ross-Seaview’ Addition petition, the growing season neighboring regions, including the because that is what locals call the area climate of the proposed Fort Ross- established Mendocino Ridge which produces fine grapes and wine’’ Seaview viticultural area and the viticultural area (27 CFR 9.158) to the (Schwartz letter to TTB, dated May 4, Northern Addition are similar because north, established by T.D. ATF–392 2005). Another local grower, Daniel they both are affected by the fog- (published in the Federal Register at 62 Schoenfeld, stated in his 2004 letter to buffering caused by the coastal ridges FR 55512 (October 27, 1997)), and the Mr. Shabram about the ‘‘Fort Ross- and hills along the northernmost proposed Freestone-Occidental Seaview’’ name that ‘‘[t]he region that portions of the Sonoma Coast viticultural area (a petition under TTB constitutes the proposed AVA is known viticultural area. The Northern Addition review) to the south, both of which as the ‘Fort Ross’ area, as the ‘Seaview’ petition further notes that the generally share a similar Coastal Cool area, and as the ‘Fort Ross-Seaview’ mountainous terrain in the region climate as a result of coastal fog and area. All three names have been used causes nighttime cool air to drain from have some similar soil types. Such an interchangeably to describe the area. the surrounding ridges and hillsides to expansion would create a larger, ‘Fort Ross-Seaview’ has been used for a the lower elevations, thereby extending regional viticultural area more akin to number of years in verbal the growing season on the higher ridges the established Sonoma Coast communication to eliminate confusion and hillsides and reducing the risk of viticultural area as compared to the associated with the different names’’ (in springtime frost in both the proposed smaller, local viticultural area that was conversation with TTB personnel, May Fort Ross-Seaview viticultural area and sought by the Fort Ross-Seaview 18, 2004). the proposed Northern Addition. petitioners. The Shabram response further states Soils: The Northern Addition petition Name Evidence: The Shabram that writers consistently do not include states that the soils in both the proposed response states that the ‘‘Fort Ross- the Northern Addition (or Annapolis) Fort Ross-Seaview viticultural area and Seaview’’ name is not associated with region when referring to the Fort Ross- the proposed Northern Addition are the Northern Addition area, and it Seaview area, or vice versa. As noted in varied, well drained, and nonalluvial argues that use of the name to identify the discussion of the Shabram-Hirsch (Soil Survey of Sonoma County, the viticulture of the Northern Addition petition above, Charles Sullivan used California, 1972, issued by the U.S. would be confusing to consumers. the ‘‘Fort Ross-Seaview’’ name to refer Department of Agriculture, Natural According to the Shabram response, the to the area, which was before the local Resources Conservation Service). Northern Addition area is instead growers reached a consensus on the Goldridge, Yorkville, Josephine, and recognized as a separate geographical name of the proposed viticultural area, Laughlin soils are common in both region known as ‘‘Annapolis,’’ which is and the Shabram Response notes that areas, and Hugo soils make up 54 the reason why the area was not Mr. Sullivan does not mention percent of the proposed Fort Ross- considered for inclusion when the Fort Annapolis or the Northern Addition Seaview viticultural area and 45 percent Ross-Seaview growers first considered when discussing Fort Ross-Seaview of the proposed Northern Addition (see petitioning for a viticultural area. The viticulture. In addition, the Shabram publication cited above), according to Shabram response notes that the response points out that the Friends of the Northern Addition petition. Northern Addition petitioners’ proposed the Gualala River Web site (available at amendment of the ‘‘Fort Ross-Seaview’’ http://gualalariver.org/) has a map that Shabram Response to the Northern name to either ‘‘Fort Ross-Annapolis’’ or shows the location of local Annapolis Addition Petition ‘‘Sonoma Coast Mountains’’ for the vineyards, but it does not include the Following the submission of the proposed expanded viticultural area vineyards in the proposed Fort Ross- Northern Addition petition, Patrick (including the Northern Addition) Seaview viticultural area to the south. Shabram, co-author of the Shabram- shows that the name lacks significance The Shabram response also notes that Hirsch petition, submitted additional in the Annapolis area. the location of the vineyards of two of documentation to support the As explained in the Shabram the Northern Addition petitioners, Brice establishment of the 27,500-acre Fort response, the Fort Ross-Seaview Jones and Don Hartford, has been Ross-Seaview viticultural area as vineyard owners considered various referred to as ‘‘Annapolis’’ rather than originally proposed (the Shabram other potential names when discussing ‘‘Fort Ross-Seaview’’: Mr. Jones was response). the best geographical name for their described as an ‘‘Annapolis vintner’’ in As a general matter, the Shabram proposed viticultural area, including but a news article (‘‘Brice Jones, Artesa response emphasizes that the Northern not limited to Fort Ross, Fort Ross Open Routes Across Land for Animals: Addition area, which is known as the Ridges, Seaview, and Seaview Ridges Annapolis Winegrowers to Establish Annapolis region, is a grape growing (‘‘California’s New Frontier,’’ by Steve Wildlife Corridors,’’ by Carol Benfell, area distinct and separate from the Heimoff, ‘‘Wine Enthusiast,’’ July 2001). [Santa Rosa] Press Democrat, September petitioned-for Fort Ross-Seaview According to the Shabram response, the 11, 2001); and the Hartford Family

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77690 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Winery notes that the Lands Edge Noir,’’ page 92). The Shabram response in the Northern Addition), in which it Vineyards 2007 Pinot Noir ‘‘is sourced states that further south, the Freestone- is described as sitting ‘‘on a hilltop that predominantly from our estate’s Occidental area contains ridges that are is not way up in the air, but just at the Annapolis vineyard’’ (http://www. separated from one another by top of the fog level, low enough to be hartfordwines.com/wines/pinotnoir/ tributaries of Salmon Creek (see very cool, but high enough not to be too landsedge.html). publication cited above). The Shabram cool and wet for grapes’’ (http://www. Boundary Evidence: The Shabram response also notes that, in the Northern peayvineyards.com/). [TTB notes that response contends that there are three Addition, the vineyard closest to the Peay Vineyards is located at an geographically distinctive viticultural northernmost vineyard in the proposed elevation of approximately 755 feet, as areas in coastal Sonoma County: Fort Ross-Seaview viticultural area is shown on a topographical map provided Annapolis (north), Fort Ross-Seaview approximately 3.5 miles away by the Northern Commenters.] By (middle), and Freestone-Occidental (measured in a straight line), whereas all comparison, the vineyards in the Fort (south). of the vineyards within the proposed Ross-Seaview area typically are located As stated in ‘‘A Wine Journey along Fort Ross-Seaview viticultural area are at higher elevations that are above the the Russian River,’’ a source cited in the located within an approximately 10 fog inversion layer, so they are therefore Shabram response, Sonoma County mile stretch, with no vineyard more less cooled by fog and receive greater coastal viticulture ‘‘is clustered in three than 1.5 miles away from another solar radiation warming while still areas close to the shore: Annapolis up vineyard. receiving some cooling via conduction north, near the Mendocino County line; Distinguishing Features: The Shabram due to the close proximity of the fog Fort Ross in the center; and (merging response states that subtle climatic and layer, according to the Shabram these two areas into one) Occidental geographic differences exist between the response. Ridges and Freestone, to the south Annapolis and Fort Ross-Seaview The Shabram response also provides (which some people refer to as the regions. Although both areas broadly a statement from Vanessa Wong, a grape Bodega plantings)’’ (Steve Heimoff, share a Coastal Cool climate grower and winemaker at Peay University of California Press, 2005, classification, the Shabram response Vineyards who has worked with pages 234–5). The Shabram response explains that there are differences in the vineyards located in both the proposed also refers to a map that depicts the nature of the coastal cooling in each Fort Ross-Seaview viticultural area and separate vineyard clusters in the area, which are largely based on the the Northern Addition for the past nine Annapolis, Fort Ross-Seaview, and higher elevations of vineyards in the vintages and has also made wines from Freestone-Occidental areas (‘‘Sonoma Fort Ross-Seaview area as compared to grapes grown in both areas. Ms. Wong Coast,’’ map no. 11, in ‘‘North American those in the Annapolis area. As a result, explains that the inversion layer of cool Pinot Noir,’’ by John Winthrop Haeger, each area receives different amounts of ocean fog persists throughout the day in University of California Press, 2004) and total solar radiation, which in turn her vineyards in the Northern Addition. notes that none of the Fort Ross-Seaview affects the ripening times for grapes in According to Ms. Wong, coastal breezes wine growers that Mr. Heimoff those areas, according to the Shabram blow cool air along unobstructed land specifically names in his book are response. between sea level and 1,000 feet in located in the Annapolis area of the The Shabram response states that altitude, which is the mean top of the map. vineyards in the proposed Fort Ross- inversion layer. By contrast, vineyards The Shabram response explains that Seaview viticultural area are located at located above the much cooler inversion the Fort Ross-Seaview vineyards are high elevations above the fog line, so layer—including vineyards located clustered together along several higher they receive a full day of solar radiation. along the Fort Ross-Seaview ridges and ridges in close proximity to the Pacific David Hirsch, Joan and Walt Flowers, areas further inland—have warmer Ocean, unlike the vineyards generally and Daniel Schoenfeld, all local growers temperatures. clustered at the lower elevations further in the proposed Fort Ross-Seaview Ms. Wong further states that grape inland around the town of Annapolis to viticultural area, attested to Mr. maturity dates differ significantly the north. The Wheatfield Fork of the Shabram and to Wine News magazine between vineyards in the proposed Fort Gualala River is located between the (Jeff Cox, ‘‘Cool Climate Pioneers— Ross-Seaview viticultural area and those two clusters of vineyards on the ridges, Sonoma’s Ridgetop Winegrowers Scale in the Northern Addition. According to and the area adjacent to the Fork is New Heights,’’ Wine News, August/ Ms. Wong, for the same vintage and characterized by fog intrusion and a September 2002) that foggy conditions grape variety, the harvest dates in the steep valley that drops to an elevation transition to clear skies beginning at the Northern Addition are consistently later of 160 feet. Commercial viticulture is 900-foot elevations of the Fort Ross- than those in proposed Fort Ross- difficult, if not impossible, in the area Seaview area. Although the 900-foot Seaview viticultural area, adding that adjacent to the Wheatfield Fork because elevation line does not mark an absolute ripening generally occurs 10 to 14 days of the fog and the steep terrain, break in the fog, it is the best available earlier in the Fort Ross-Seaview area according to the Shabram response. evidence of a fog ceiling, according to than at the lower-elevation Peay The Shabram response also states that the Shabram response. Vineyards. Ms. Wong attributes the later the Annapolis area consists of the ridges Further, the Shabram response states ripening in the Annapolis area to the surrounding the Wheatfield Fork and that, although the convection and cooler temperatures in that region: ‘‘I Buckeye and Grasshopper Creeks conduction of fog from the Pacific believe that the pick dates for the (located in the proposed Northern Ocean cool both the Annapolis and Fort Annapolis area are later than those of Addition). By contrast, the proposed Ross-Seaview areas, the vineyards in the the Fort Ross-Seaview area because the Fort Ross-Seaview viticultural area is Annapolis area are cooler because they Annapolis area is cooler than the Fort located to the south of the Annapolis are situated at lower elevations, where Ross-Seaview area.’’ area and consists of a series of ridges partial fog reduces total solar radiation, The following table, which was that are separated from the surrounding despite the presence of a ridgeline to the provided by Ms. Wong, illustrates the areas by the Wheatfield Fork and the west that buffers the fog. For example, difference in pick dates between the South Fork of the Gualala River and the Shabram response quotes a Fort Ross-Seaview and Annapolis areas tributary creeks (‘‘North American Pinot description of Peay Vineyards (located and shows that, for the years that Ms.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77691

Wong provided data, the pick dates of Seaview viticultural area are vineyards in the Northern Addition the vineyards in the proposed Fort Ross- significantly earlier than those of the area:

Fort Ross- Pick date Variety Seaview Pick date Annapolis Pick date difference Vineyard Vineyard (days)

Pinot Noir-Pommard ...... Hirsch ...... 9/12/02 Peay ...... 9/23/02 11 Chardonnay ...... Hirsch ...... 9/29/06 Peay ...... 10/9/06 11 Pinot Noir 777 ...... Nobles ...... 9/4/09 Peay ...... 9/18/09 14 Chardonnay ...... Hirsch ...... 9/10/09 Peay ...... 10/6/09 26

Determination To Reopen Public Comments Received in Response to refer to recent articles that recognize Comment Period Notice No. 117 that the Fort Ross-Seaview and Given the conflicting evidence TTB received three comments in Annapolis areas are separate grape- provided by the original petitioner and response to Notice No. 117, all strongly growing areas with different climates by the Northern Commenters with supporting the establishment of the Fort within the larger Sonoma Coast region. respect to the distinguishing features Ross-Seaview viticultural area as For example, both comments quote an and boundary line of the proposed proposed in Notice No. 34. Two of the August 2, 2010 article by Eric Asimov, viticultural area, as well as the length of comments, Nos. 8 and 9, were submitted the chief wine critic for the New York time that had elapsed since TTB by local growers who had previously Times, that discusses the diversity published Notice No. 34 and solicited submitted supporting comments in within the large Sonoma Coast public comments on the proposed response to Notice No. 34, Lester viticultural area, stating that ‘‘[e]ven establishment of the Fort Ross-Seaview Schwartz of Fort Ross Vineyard & along the narrow swath of land close to viticultural area, TTB determined that it Winery LLC and David Hirsch, the coast, numerous microclimates was appropriate to reopen the comment respectively; the third comment, No. 10, emerge, making vineyards around period for Notice No. 34 before taking was submitted by Patrick Shabram. Annapolis to the north very different any final action regarding the proposed There were no comments submitted by from vineyards on the ridges above Fort Fort Ross-Seaview viticultural area. the Northern Commenters in response to Ross in the appellation’s western Accordingly, TTB reopened the Notice No. 117. midsection, not to mention those to the comment period for Notice No. 34 for an The supporting comments state their south near Freestone and Occidental’’ additional 45 days on April 21, 2011, opposition to the proposed Northern (Eric Asimov, ‘‘The Evolution of with comments due on or before June 6, Addition based on the distinctiveness of Sonoma Coast Chardonnay,’’ The New 2011 (see Notice No. 117, published in the proposed Fort Ross-Seaview York Times, August 2, 2010). the Federal Register at 76 FR 22338). viticultural area and their contention Comment 10 also quotes an April 27, Notice No. 117 did not contain the that the Northern Addition (or the 2011 article from the Santa Rosa Press details of the northern expansion Annapolis area) is a separate, Democrat that similarly identifies the documentation (referred to here as the viticulturally distinct area. Comment 9 same ‘‘three particular coastal areas’’ of ‘‘Northern Addition petition’’) or of the specifically notes the proposed the Sonoma Coast and distinguishes the Shabram response due to the length of viticultural area’s distinctiveness based Annapolis area from the area to its those documents, but TTB informed the on its location, soils, and climate, immediate south (the location of the public in Notice No. 117 that those stating that the area’s climate is proposed Fort Ross-Seaview viticultural documents, as well as the original influenced by its close proximity to the area) based on the Annapolis area’s Shabram-Hirsch petition, Notice No. 34, ocean as well as its altitude. In comment lower elevation ridges and its location and the original comments received in 10, Patrick Shabram reiterates his prior response to Notice No. 34, were posted contention that the main distinction five to six miles inland from the Pacific for public viewing on Regulations.gov, between the proposed viticultural area Ocean (Virginia Boone, ‘‘Wine Way Out the Federal e-rulemaking portal. and the Northern Addition is that the West,’’ Santa Rosa Press Democrat, In Notice No. 117, TTB specifically vineyards located within the proposed April 27, 2011). invited comments on the following Fort Ross-Seaview viticultural area are In addition, comments 8 and 10 quote issues: (1) Whether TTB should located above or in close proximity to a 2009 article by the wine editor of the establish the proposed ‘‘Fort Ross- the intruding coastal fog, as compared to San Francisco Chronicle that names Seaview’’ viticultural area; (2) the the Northern Addition vineyards, which Peay Vineyards as its Winery of the Year sufficiency and accuracy of the are typically below the fog line. Mr. and describes the cooler climate in the proposed viticultural area’s name, ‘‘Fort Shabram adds that various local grape Annapolis area as compared to the Ross-Seaview,’’ including comments on growers have attested to the fact that warmer vineyards to the south (within the name’s applicability to the proposed vineyards within the proposed Fort the proposed Fort Ross-Seaview Northern Addition and any alternative Ross-Seaview viticultural area are viticultural area), which are located names for the proposed viticultural area located above the fog, an assertion that closer to the coast but above the and the Northern Addition area; and (3) Mr. Shabram notes has not been inversion layer: ‘‘Even by Sonoma Coast the appropriateness of the proposed disputed by any growers inside or standards, Peay occupies a chilly slice viticultural area’s boundary line and outside of the proposed viticultural of the world. While vineyards just to the whether the proposed viticultural area area. south like Hirsch * * * or Flowers is limited to the area within the In support of the argument that the * * * may sit closer to the coast, they’re boundary line described in Notice No. Northern Addition is a unique area that above the inversion layer. The site in 34 or if it also extends further to the is separate and viticulturally distinct Annapolis is lower, between 600 and north as stated by the Northern from the proposed Fort Ross-Seaview 800 feet, with colder temperatures’’ (Jon Commenters. viticultural area, comments 8 and 10 Bonne, ‘‘Winery of the Year: Peay

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77692 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Vineyards,’’ San Francisco Chronicle, documentation relating to the proposed TTB notes that the USGS maps show December 27, 2009). Northern Addition. a clear distinction between the Fort In another article about Peay that is Ross-Seaview area and the Annapolis Name Evidence quoted in comments 8 and 10, Randy area to the north, with the Wheatfield Caparoso of Sommelier Journal The evidence submitted both by the Fork of the Gualala River creating a recounted Nick Peay’s description of the Northern Commenters and by Mr. natural separation of the lower distinctiveness of the Annapolis area as Shabram raised significant questions elevations of the Northern Addition contrasted to the Fort Ross-Seaview area regarding whether the ‘‘Fort Ross- from the steep, higher elevation terrain to the south: Seaview’’ name is applicable to the of the proposed Fort Ross-Seaview Peay attributes the tightly wound proposed Northern Addition. viticultural area. TTB also notes that the characteristics of Annapolis to the Based on TTB’s review of the northernmost vineyard in the proposed macroclimate, with temperatures typically evidence provided by the Northern Fort Ross-Seaview viticultural area is ranging in the 60s and 70s during the Commenters to support their assertion more than 3 miles from the closest growing season—as frigid as it gets in the that the ‘‘Fort Ross’’ and ‘‘Fort Ross vineyard in the Northern Addition, as entire county. As in Fort Ross-Seaview, days are moderated by the ocean, only 4 miles Region’’ names are used in connection shown on an exhibit submitted by the away, and nights are never too cold. But with the Northern Addition area, it Northern Commenters. In contrast, as unlike Fort Ross-Seaview, he says, the lower- appears that this use of these names pointed out in the Shabram response, all elevation growths near Annapolis are reflects very limited historic name usage of the vineyards within the proposed influenced by ‘‘unobstructed fog coming during the Russian occupation only Fort Ross-Seaview viticultural area are straight up the river valley each day. We are (1812–41); the evidence provided does located within an approximately 10 in the inversion layer, not above it’’ (Randy not include more recent references to mile stretch, with no vineyard more Caparoso, ‘‘Sonoma Extreme,’’ Sommelier than 1.5 miles away from another Journal, January 31, 2011, pp. 70–80) the area by those names. Regarding the (emphasis in original). archaeology and ethnohistory study of vineyard. the Russian occupation of the Fort Ross In addition, the evidence and According to comment 10, Greg area that the Northern Addition petition comments submitted in this case LaFollette, a winemaker who has cites for a historical perspective of the demonstrate that there are two distinct worked with grape growers in various occupation’s effect on native geographical differences between the coastal Sonoma locations (including populations, TTB notes that the study two areas that affect the proposed Fort Ross-Seaview), is quoted in that details the historic boundaries of the boundary line and suggest that they same article as stating that he ‘‘always occupation, but not the current should be considered separate regions: experienced much higher degree-day boundary lines of the Fort Ross (1) Distance from the Pacific coastline; accumulation [in Fort Ross-Seaview]’’. Comments 8 and 10 also cite the lack geographical area. and (2) elevation. Most locations within of evidence demonstrating that the ‘‘Fort By contrast, the evidence that was the proposed Fort Ross-Seaview Ross-Seaview’’ name applies to the submitted in the Shabram response and viticultural area are located only 0.5 to Northern Addition area as an additional in comments 8 and 10 supports the 2.5 miles from the Pacific coastline, reason for establishing the petitioned-for original petitioners’ contention in whereas most locations within the viticultural area as proposed in Notice response to the Northern Addition Northern Addition are located 4 to 6 No. 34. In comment 10, Patrick Shabram petition that local growers as well as the miles from the coastline, as shown on refers to his earlier argument from the wine press recognize the Fort Ross- USGS maps. The elevation of the Shabram response that the names ‘‘Fort Seaview area as a separate and distinct vineyards in the two areas is also Ross,’’ ‘‘Seaview,’’ or ‘‘Fort Ross- area from the Annapolis area, and that significantly different; vineyards in the Seaview’’ lack viticultural significance the ‘‘Fort Ross-Seaview’’ geographical Fort Ross-Seaview area are generally in relation to the Northern Addition place name is commonly used by local located at elevations between 920 to area, which is instead known as the growers to identify only the grape- 1,800 feet, which are above the coastal ‘‘Annapolis area.’’ Noting that he was growing region in the immediate area fog according to local growers and the unable to find any reference to the around Fort Ross and Seaview, but not Shabram-Hirsch petition, as compared Annapolis area as ‘‘Fort Ross,’’ Mr. the neighboring region to the north. to the lower 560- to 890-foot elevations Shabram states that a number of recent Accordingly, TTB has determined that of vineyards in the Northern Addition, news articles refer to the Northern the name evidence provided in the which are more influenced by the Addition area as ‘‘Annapolis’’ in Northern Addition petition does not marine fog. conjunction with other sub-regions of substantiate the Northern Commenters’ Finally, TTB notes that the separate the west Sonoma Coast region, assertion that the ‘‘Fort Ross-Seaview,’’ identities of the Fort Ross-Seaview and including Fort-Ross Seaview and ‘‘Fort Ross,’’ or ‘‘Seaview’’ names the Northern Addition (or Annapolis) Freestone-Occidental, further currently apply to the Northern areas have been recognized in recent underscoring his contention that the Addition, including the Annapolis area. newspaper articles and wine magazines. As noted above, the Shabram response ‘‘Fort Ross’’ name is not used in Boundary Line conjunction with the proposed Northern and comments 8 and 10 cite to multiple Addition. As described in Notice No. 34, the articles that refer to the two regions as Shabram-Hirsch petitioned-for separate areas and describe their TTB Analysis boundary line largely incorporates the different grape-growing conditions, TTB has carefully considered the hills and mountains located along the which further highlights the distinction comments received in response to Pacific coast near Fort Ross and Seaview between the proposed Fort Ross- Notice Nos. 34 and 117 and has in western Sonoma County that are Seaview viticultural area and the reviewed all petition evidence and mostly above 900 feet, which generally Annapolis area to the north. subsequent documentation received in marks the separation between the TTB thus finds that the boundary line support of, or in opposition to, the higher, sunnier elevations of the for the proposed Fort Ross-Seaview proposed Fort Ross-Seaview viticultural proposed area and the surrounding viticultural area should not include the area, including all comments and lower, foggier elevations. Annapolis area to the north.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77693

Distinguishing Features conditions with increased solar two winemakers in the Northern In Notice No. 34, the climate, radiation due to the lack of fog at the Addition—Ms. Wong and Nick Peay— topography, and soils of the proposed high elevation vineyards in the area. with the latter contrasting his vineyards Fort Ross-Seaview viticultural area were The petitioners submitted both in the cooler Annapolis area to the Fort identified as the area’s distinguishing statistical and anecdotal evidence in Ross-Seaview area based on the location features. In the Northern Addition support of their position. of his vineyards in (not above) the petition, the Northern Commenters First, the degree day data provided by inversion layer and the influence of contend that these same distinctive the petitioners in the Shabram-Hirsch unobstructed fog in the area (Jon Bonne, features are shared by the Northern petition for three vineyards in the ‘‘Winery of the Year: Peay Vineyards,’’ Addition area, thus warranting a proposed viticultural area shows that San Francisco Chronicle, December 27, modification of the proposed boundary the vineyards are in Winkler region II, 2009; Randy Caparoso, ‘‘Sonoma line to include the Northern Addition. and that those vineyards on average had Extreme,’’ Sommelier Journal, January More specifically, the Northern degree days that were greater than or 31, 2011, pp. 70–80). Addition petition asserts that both the equal to the average degree days for the Finally, TTB notes that the Northern proposed Fort Ross-Seaview viticultural single vineyard for which data was Commenters did not dispute the 2 area and the Northern Addition have a provided by the Northern Commenters. distinction made in the Shabram Coastal Cool climate and similar soil The average degree days for two of the response relating to the location of the types, which is not challenged in the vineyards within the proposed Fort Fort Ross-Seaview vineyards above the Shabram response. Ross-Seaview viticultural area were fog line. Although the Northern Based on the Shabram-Hirsch significantly greater than the average Addition petition states that the lower petition, the Northern Addition petition, degree days for the vineyard within the elevation vineyards in the Northern the Shabram response, and the public Northern Addition, and the third Addition are protected from the cooling comments, TTB finds that there are vineyard had an equal number of degree effects of marine fog intrusion by the some similarities in the soil, days on average, suggesting that the surrounding higher elevation ridgelines, topography, and growing season climate growing season temperatures in the the evidence submitted with the of the proposed Fort Ross-Seaview proposed viticultural area are somewhat Northern Addition petition and with viticultural area and the Northern warmer than those in the Northern other comments indicates that there is Addition. As discussed below, however, Addition. still some fog intrusion in the area. By given that both areas are wholly The pick date data provided by Ms. contrast, the evidence submitted in contained within two larger existing Wong in the Shabram response further support of the proposed Fort Ross- viticultural areas—the North Coast and supports the assertion that the proposed Seaview viticultural area demonstrates Sonoma Coast viticultural areas—some Fort Ross-Seaview viticultural area has that vineyards in that area are located general similarities in distinguishing warmer growing conditions than the above the fog line, thereby resulting in features can be expected, especially in Northern Addition. According to the warmer growing season conditions, regard to the regional climate because data provided by Ms. Wong, for the increased solar radiation, and earlier both the proposed Fort Ross-Seaview same growing seasons for the same harvest dates for those vineyards. TTB viticultural area and the Northern grapes, the vineyards located within the also notes that no other comments in Addition have a Coastal Cool climate, proposed viticultural area had a pick support of the Northern Addition or in which is a distinguishing feature of the date that was significantly earlier than opposition to the proposed Fort Ross- surrounding Sonoma Coast viticultural the pick date for the vineyard located in Seaview viticultural area were area according to T.D. ATF–253. In the Northern Addition. Ms. Wong submitted in response to Notice No. addition, as noted in the Shabram specifically attributed the later pick 117. response, an expansion of the proposed dates in the Northern Addition to the Accordingly, TTB concludes that the Fort Ross-Seaview viticultural area cooler temperatures in the lower evidence submitted in the Shabram- based on the general grounds stated in elevation vineyards in that area. Hirsch petition, in the Shabram the Northern Addition petition could In addition, observations by local response, and in the supporting warrant the inclusion of other nearby grape growers as well as articles in the comments is sufficient to demonstrate coastal areas with broadly similar wine press, as described above, further that the climate, topography, and other features. Accordingly, the general indicate that the higher elevation distinguishing features of the proposed regional similarities described in the vineyards located in the proposed Fort Fort Ross-Seaview viticultural area are Northern Addition petition would not Ross-Seaview viticultural area are sufficiently distinct from those of the necessarily preclude a finding that the warmer and receive more solar radiation Northern Addition to warrant the microclimate and specific topography of than the lower elevation vineyards in establishment of the new viticultural a particular area (such as the proposed the Northern Addition because the Fort area originally proposed in Notice No. Fort Ross-Seaview viticultural area) are Ross-Seaview vineyards are located 34. sufficiently distinct from those of the above both the cooler temperature inversion layer as well as the fog line. Relationship to Existing Viticultural adjacent areas as to warrant its Areas recognition as a distinct viticultural As noted above, local growers in the area. proposed Fort Ross-Seaview viticultural As noted earlier in this preamble, the While conceding that there are some area claim that their vineyards benefit proposed Fort Ross-Seaview viticultural broad similarities in the climate and from day-long solar radiation because area is located entirely within the topography between the proposed Fort they are located above the fog line and Sonoma Coast and North Coast Ross-Seaview viticultural area and the the cool inversion layer. This viticultural areas. The similarities and Northern Addition, the Shabram-Hirsch distinction has also been recognized by differences between the proposed petition, the Shabram response, and the viticultural area and the surrounding 2 The degree day information from the Shabram- supporting comments also assert that Hirsch petition was not included in Notice No. 34, Sonoma Coast and North Coast the proposed Fort Ross-Seaview but it was restated in the Northern Addition viticultural areas are addressed in the viticultural area has warmer growing petition and is summarized above. following paragraphs.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77694 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

North Coast Viticultural Area Sonoma Coast viticultural area. Therefore, the establishment of the Fort The large North Coast viticultural area According to the Shabram-Hirsch Ross-Seaview viticultural area will not was established by T.D. ATF–145 petition, although the petitioned-for affect use of the names ‘‘Fort Ross,’’ ‘‘Ft. (published in the Federal Register at 48 viticultural area lies a short distance Ross,’’ and ‘‘Seaview’’ on wine labels of FR 42973 on September 21, 1983) and from the Pacific Ocean, the elevations of domestic and foreign producers. Accordingly, under the authority of includes all or portions of Napa, the vineyards located within the the Federal Alcohol Administration Act Sonoma, Mendocino, Solano, Lake, and proposed viticultural area are generally and part 4 of the TTB regulations, TTB Marin Counties, California. TTB notes located above the fog line. The petition also states that the proposed Fort Ross- establishes the 27,500-acre ‘‘Fort Ross- that the North Coast viticultural area Seaview viticultural area is warmer Seaview’’ viticultural area in Sonoma encompasses approximately 40 during the growing season than the County, California, effective 30 days established viticultural areas in surrounding areas in the Sonoma Coast from the publication date of this northern California, in addition to the viticultural area because it is located document. proposed Fort Ross-Seaview viticultural above the cool temperature inversion area. T.D. ATF–145 explicitly Boundary Description layer that results from the draining of recognizes that ‘‘[d]ue to the enormous cooler air from the high elevation ridges See the narrative boundary size of the North Coast, variations exist in the proposed viticultural area into the description of the viticultural area in the in climatic features such as surrounding lower elevations. regulatory text published at the end of temperatures, rainfall, and fog The Shabram-Hirsch petition also this document. In this final rule, TTB intrusion.’’ (See 48 FR 42975–42976.) notes that the topography of the Sonoma altered some of the language in the The proposed Fort Ross-Seaview Coast viticultural area includes large, written boundary description provided viticultural area shares the overall flat valley areas, gently rolling hilly in the petition and published as part of distinguishing feature of the North Coast regions, several mountainous areas, and Notice No. 34. TTB made these viticultural area: The marine influence a portion of the Russian River and its alterations in the written boundary from the Pacific Ocean that results in watershed, as shown on the Sonoma description language for clarity and to cooler temperatures throughout the County USGS map. By contrast, the conform the written boundary region during the growing season. The topography of the proposed Fort Ross- description to the boundary of the proposed Fort Ross-Seaview viticultural Seaview viticultural area generally is proposed viticultural area as marked on area, however, is much more uniform in more uniform with mountains, steep the USGS maps submitted with the its geographical features than the North slopes, and elevations mostly between petition. Coast viticultural area as a result of its 920 to 1,800 feet, as shown on USGS much smaller size. In this regard, T.D. maps. Maps ATF–145 specifically states that The maps for determining the ‘‘approval of this viticultural area does TTB Finding boundary of the viticultural area are not preclude approval of additional After careful review of the Shabram- listed below in the regulatory text. areas, either wholly contained with the Hirsch petition, the Northern Addition North Coast, or partially overlapping the petition, the Shabram response, and the Impact on Current Wine Labels North Coast’’ and that ‘‘smaller comments received in response to Part 4 of the TTB regulations prohibits viticultural areas tend to be more Notice Nos. 34 and 117, TTB finds that any label reference on a wine that uniform in their geographical and the evidence submitted supports the indicates or implies an origin other than climatic characteristics’’ (see 48 FR establishment of the 27,500-acre Fort the wine’s true place of origin. With the 42976). Thus, the proposal to establish Ross-Seaview viticultural area within establishment of this viticultural area the proposed Fort Ross-Seaview the Sonoma Coast and North Coast and its inclusion in part 9 of the TTB viticultural area is consistent with the viticultural areas as originally proposed. regulations, ‘‘Fort Ross-Seaview’’ and clear intent expressed in T.D. ATF–145. The evidence submitted by the Northern ‘‘Ft. Ross-Seaview’’ are recognized Commenters to support modification of under 27 CFR 4.39(i)(3) as terms of Sonoma Coast Viticultural Area the proposed boundary line to include viticultural significance. The text of the The Sonoma Coast viticultural area the Northern Addition, including the new regulation clarifies this point. was established by T.D. ATF–253 Annapolis region, within the Fort Ross- Once this final rule becomes effective, (published in the Federal Register at 52 Seaview viticultural area failed to wine bottlers using ‘‘Fort Ross-Seaview’’ FR 22302 on June 11, 1987) within the establish the requisite commonality of or ‘‘Ft. Ross-Seaview’’ in a brand name, established North Coast viticultural name and distinguishing features. TTB including a trademark or in another area. T.D. ATF–253 states that the would be willing to consider a separate label reference as to the origin of the Sonoma Coast viticultural area includes petition for the establishment of a wine, will have to ensure that the only the portion of Sonoma county viticultural area encompassing the product is eligible to use ‘‘Fort Ross- ‘‘which is under very strong marine Annapolis region. Seaview’’ or ‘‘Ft. Ross-Seaview’’ as an climate influence.’’ According to T.D. In addition, TTB has determined that appellation of origin. The establishment ATF–253, the Sonoma Coast viticultural both ‘‘Fort Ross-Seaview’’ and ‘‘Ft. Ross- of the Fort Ross-Seaview viticultural area has a ‘‘Coastal Cool’’ climate, Seaview’’ are viticulturally significant. area will not affect any existing which is shared by the proposed Fort After consideration of the concerns of viticultural area, and any bottlers using Ross-Seaview viticultural area that some commenters, TTB believes that it Sonoma Coast or North Coast as an would be located within the Sonoma would not be appropriate to find that appellation of origin or in a brand name Coast viticultural area. ‘‘Fort Ross’’ or ‘‘Ft. Ross,’’ standing for wines made from grapes grown Notwithstanding this broad climactic alone, is viticulturally significant. TTB within the Fort Ross-Seaview similarity, the information before TTB also has determined that the name viticultural area will not be affected by indicates that there are some differences ‘‘Seaview,’’ standing alone, does not the establishment of this new in the microclimate of the proposed Fort have viticultural significance because of viticultural area. Ross-Seaview viticultural area that its wide geographical usage, both For a wine to be labeled with a distinguish it from the surrounding domestically and internationally. viticultural area name or with a brand

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77695

name that includes a viticultural area Subpart C—Approved American unimproved road that forks to the south name or other term identified as being Viticultural Areas from Tin Barn Road, section 8, T9N, viticulturally significant in part 9 of the R13W; then TTB regulations, at least 85 percent of ■ 2. Subpart C is amended by adding (7) Proceed east then north along the the wine must be derived from grapes § 9.221 to read as follows: unnamed, unimproved road to the intersection of that road with Tin Barn grown within the area represented by § 9.221 Fort Ross-Seaview. that name or other term, and the wine Road, section 8, T9N, R13W; then must meet the other conditions listed in (a) Name. The name of the viticultural (8) Proceed east in a straight line 27 CFR 4.25(e)(3). If the wine is not area described in this section is ‘‘Fort approximately 1.55 miles to Haupt eligible for labeling with the viticultural Ross-Seaview’’. For purposes of part 4 of Creek, section 10, T9N, R13W; then area name or other viticulturally this chapter, ‘‘Fort Ross-Seaview’’ and (9) Proceed generally southeast along significant term and that name or term ‘‘Ft. Ross-Seaview’’ are terms of Haupt Creek approximately 1.2 miles to appears in the brand name, then the viticultural significance. the western boundary of section 11, label is not in compliance and the (b) Approved maps. The five United T9N, R13W; then bottler must change the brand name and States Geological Survey 1:24,000 scale (10) Proceed straight north along the obtain approval of a new label. topographic maps used to determine the western boundary of section 11 Similarly, if the viticultural area name boundary of the Fort Ross-Seaview approximately 0.9 mile to the northwest or other viticulturally significant term viticultural area are titled— corner of section 11 (near Buck Spring), (1) Arched Rock, California-Sonoma appears in another reference on the T9N, R13W; then Co., 1977 edition; label in a misleading manner, the bottler (11) Proceed straight east along the (2) Fort Ross, California-Sonoma Co., would have to obtain approval of a new northern boundary of section 11 and 1978 edition; label. then along the northern boundary of (3) Plantation, California-Sonoma Co., section 12 approximately 1.1 miles to Different rules apply if a wine has a 1977 edition; the intersection of the section 12 brand name containing a viticultural (4) Annapolis, California-Sonoma Co., northern boundary with an unnamed, area name or other term of viticultural 1977 edition; and unimproved road along Skyline Ridge, significance that was used as a brand (5) Tombs Creek, California-Sonoma section 12, T9N, R13W; name on a label approved before July 7, Co., 1978 edition. (12) Proceed generally southeast along 1986. See 27 CFR 4.39(i)(2) for details. (c) Boundary. The Fort Ross-Seaview the unnamed, unimproved road, on to Regulatory Flexibility Act viticultural area is located in Sonoma the Tombs Creek map, approximately County, California. The area’s boundary 1.3 miles to the intersection of that road TTB certifies that this regulation will is defined as follows: with the 1,200-foot elevation line, not have a significant economic impact (1) The beginning point is on the section 13, T9N, R13W; then on a substantial number of small Arched Rock map at the intersection of (13) Proceed generally southeast along entities. This regulation imposes no new the 920-foot elevation line and Meyers the 1,200-foot elevation line reporting, recordkeeping, or other Grade Road, T8N, R12W. From the approximately 0.6 mile to the administrative requirement. Any benefit beginning point, proceed northwest on intersection of that elevation line with derived from the use of a viticultural Meyers Grade Road approximately 4.3 Allen Creek, section 18, T9N, R12W; area name is the result of a proprietor’s miles, on to the Fort Ross map, to the then efforts and consumer acceptance of intersection of Meyers Grade Road with (14) Proceed generally north along wines from that area. Therefore, no Seaview and Fort Ross Roads, T8N, Allen Creek approximately 0.2 mile to regulatory flexibility analysis is R12W; then the intersection of Allen Creek with the required. (2) Proceed northwest on Seaview 920-foot elevation line, section 18, T9N, Road approximately 6.4 miles, on to the Executive Order 12866 R12W; then Plantation map, to the intersection of (15) Proceed generally east and then This rule is not a significant Seaview Road with Kruse Ranch and southeast along the meandering 920-foot regulatory action as defined by Hauser Bridge Roads in the southeast elevation line, on to the Fort Ross map, Executive Order 12866. Therefore, it corner of section 28, T9N, R13W; then to the intersection of that elevation line requires no regulatory assessment. (3) Proceed west on Kruse Ranch with Jim Creek, section 21, T9N, R12W; Road approximately 0.2 mile to the then Drafting Information intersection of Kruse Ranch Road with (16) Proceed generally southeast along Elisabeth C. Kann of the Regulations the 920-foot elevation line, T9N, R13W; Jim Creek approximately 0.7 mile to the and Rulings Division drafted this notice. then northern boundary of section 27, T9N, (4) Proceed generally north then east R12W; then List of Subjects in 27 CFR Part 9 along the 920-foot elevation line (17) Proceed east along the northern approximately 2.2 miles to the boundary of section 27, T9N, R12W, to Wine. intersection of the elevation line with the northeast corner of section 27; then The Regulatory Amendment Hauser Bridge Road, section 27, T9N, (18) Proceed south along the eastern R13W; then boundaries of sections 27 and 34, T9N, For the reasons discussed in the (5) Proceed east on Hauser Bridge R12W, and continue south along the preamble, 27 CFR, chapter I, part 9, is Road approximately 1.5 miles to the eastern boundaries of sections 3, 10, 15, amended as follows: intersection of Hauser Bridge Road with and 22, T8N, R12W, to Fort Ross Road; the 920-foot elevation line, section 23, then PART 9—AMERICAN VITICULTURAL T9N, R13W; then (19) Proceed east along Fort Ross AREAS (6) Proceed generally northwest then Road to the intersection of Fort Ross east along the 920-foot elevation line, on Road with the Middle Branch of Russian ■ 1. The authority citation for part 9 to the Annapolis map, approximately Gulch Creek, and then proceed south continues to read as follows: 7.8 miles to the intersection of the along that creek for approximately 1.2 Authority: 27 U.S.C. 205. elevation line with an unnamed, miles to the intersection of that creek

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77696 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

with the 920-foot elevation line, section statements on labels, and ensure that elevation, that make it distinctive and 26, T8N, R12W; then labels provide the consumer with distinguish it from adjacent areas (20) Proceed generally south along the adequate information as to the identity outside the proposed viticultural area meandering 920-foot elevation line and quality of the product. The Alcohol boundary; approximately 8.1 miles, passing back and Tobacco Tax and Trade Bureau • A copy of the appropriate United and forth on the Fort Ross and Arched (TTB) administers the regulations States Geological Survey (USGS) map(s) Rock maps as the 920-foot elevation line promulgated under the FAA Act. showing the location of the proposed meanders north then south around the Part 4 of the TTB regulations (27 CFR viticultural area, with the boundary of West Branch of Russian Gulch, part 4) allows the establishment of the proposed viticultural area clearly returning to the beginning point, T8N, definitive viticultural areas and the use drawn thereon; and R12W. of their names as appellations of origin • A detailed narrative description of Signed: October 4, 2011. on wine labels and in wine the proposed viticultural area boundary advertisements. Part 9 of the TTB based on USGS map markings. John J. Manfreda, regulations (27 CFR part 9) sets forth Petition for the Naches Heights Administrator. standards for the preparation and Viticultural Area Approved: October 20, 2011. submission of petitions for the Timothy E. Skud, establishment or modification of TTB received a petition from R. Paul Deputy Assistant Secretary, Tax, Trade, and American viticultural areas and lists the Beveridge, owner of Wilridge Winery Tariff Policy. approved American viticultural areas. and Vineyard, to establish the ‘‘Naches [FR Doc. 2011–32016 Filed 12–13–11; 8:45 am] Heights’’ American viticultural area in Definition BILLING CODE 4810–31–P the State of Washington. The proposed Section 4.25(e)(1)(i) of the TTB Naches Heights viticultural area is regulations (27 CFR 4.25(e)(1)(i)) defines located entirely within the larger DEPARTMENT OF THE TREASURY a viticultural area for American wine as Columbia Valley viticultural area (27 a delimited grape-growing region having CFR 9.74) of Washington and Oregon. Alcohol and Tobacco Tax and Trade distinguishing features as described in The city of Yakima lies to the southeast Bureau part 9 of the regulations and a name and of the proposed viticultural area in a delineated boundary as established in valley at lower elevations. 27 CFR Part 9 part 9 of the regulations. These According to the petition, the [Docket No. TTB–2011–0005; T.D. TTB–99; designations allow vintners and proposed Naches Heights viticultural Ref: Notice No. 118] consumers to attribute a given quality, area encompasses 13,254 acres and reputation, or other characteristic of a contains 105 acres of commercial RIN 1513–AB80 wine made from grapes grown in an area vineyards either producing or expecting to produce wine grapes in the Establishment of the Naches Heights to its geographic origin. The foreseeable future. Viticultural Area establishment of viticultural areas allows vintners to describe more Name Evidence AGENCY: Alcohol and Tobacco Tax and accurately the origin of their wines to Trade Bureau, Treasury. consumers and helps consumers to The ‘‘Naches Heights’’ name applies ACTION: Final rule; Treasury Decision. identify wines they may purchase. to an elevated plateau area in Yakima Establishment of a viticultural area is County, Washington, according to the SUMMARY: This final rule establishes the neither an approval nor an endorsement petition and USGS maps. The USGS 13,254-acre ‘‘Naches Heights’’ by TTB of the wine produced in that topographical maps of Naches, Selah, viticultural area in Yakima County, area. Yakima West, and Wiley City are used Washington. TTB designates viticultural in the written boundary description in areas to allow vintners to better describe Requirements the petition to define the boundary of the origin of their wines and to allow Section 4.25(e)(2) of the TTB the proposed viticultural area. The area consumers to better identify wines they regulations outlines the procedure for between the Naches River and Cowiche may purchase. proposing an American viticultural area Creek is identified as ‘‘Naches Heights’’ DATES: Effective Date: January 13, 2012. and provides that any interested party on the USGS maps as well as on a FOR FURTHER INFORMATION CONTACT: may petition TTB to establish a grape- public lands map (Yakima Public Lands Karen A. Thornton, Regulations and growing region as a viticultural area. Quadrangle map, 2001, Washington Rulings Division, Alcohol and Tobacco Section 9.12 (27 CFR 9.12) of the TTB State Department of Natural Resources), Tax and Trade Bureau, 1310 G Street regulations prescribes standards for according to the petition. NW., Washington, DC 20220; telephone petitions for the establishment or TTB notes that a search of the USGS (202) 453–1039, ext. 175. modification of American viticultural Geographical Names Information System (GNIS) describes Naches Heights SUPPLEMENTARY INFORMATION: areas. Such petitions must include the following: as a summit in Yakima County, Background on Viticultural Areas • Evidence that the area within the Washington. Also, a general Internet proposed viticultural area boundary is search for ‘‘Naches Heights’’ produced TTB Authority nationally or locally known by the many hits relating to the geographical Section 105(e) of the Federal Alcohol viticultural area name specified in the region in which the proposed Administration Act (FAA Act), 27 petition; viticultural area falls. U.S.C. 205(e), authorizes the Secretary • An explanation of the basis for The petition provided evidence of of the Treasury to prescribe regulations defining the boundary of the proposed local usage of the name ‘‘Naches for the labeling of wine, distilled spirits, viticultural area; Heights,’’ including listings for the and malt beverages. The FAA Act • A narrative description of the ‘‘Naches Heights Community Center’’ requires that these regulations should, features of the proposed viticultural area and the ‘‘Little Store on Naches among other things, prohibit consumer that affect viticulture, such as climate, Heights’’ in The DexOnline.com, Qwest, deception and the use of misleading geology, soils, physical features, and 2008 Yakima Valley telephone

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77697

directory. The petition also included The proposed viticultural area is a Cascade Mountains, according to the multiple articles from the Yakima single, elevated Tieton andesite plateau petition and the USGS maps. Although Herald-Republic referring to ‘‘Naches landform that ends in andesite cliffs that not distinguished by steep cliffs, the Heights,’’ including an October 22, descend into the valleys surrounding proposed western boundary line marks 2008, obituary of Albert Robert the plateau. Although this landform the end of andesite rocks and the Couchman, who had worked in generally shares a similar climate, it is beginning of the Cascade Mountains orchards in Naches Heights; an October geographically and geologically foothills, as shown in an aerial photo 24, 2008, article about a cross-country distinguishable from the surrounding submitted with the petition. Elevations competition entitled ‘‘Local Report: portions of the Columbia Valley gradually rise heading west and GNAC’s best heading to Naches viticultural area, according to the northwest of the Naches Heights into Heights’’; and an October 26, 2008, petition. The relatively flat terrain of the the Cascade Mountains and the 3,578- article entitled ‘‘Naches Heights: Senior plateau gently increases in elevation foot Bethel Ridge. The high Marcie Mullen turned in Central over the 11 miles from southeast to mountainous elevations to the west Washington University’s top northwest, as shown on the USGS maps, create a rain shadow effect that protects performance in Saturday’s GNAC cross and the entire plateau is elevated over the Naches Heights plateau from Pacific country championship * * *.’’ In the surrounding valleys. Unlike the rest winter storms. addition, the petition included a 1990 of the Columbia Valley, no major rivers Elevations on the Naches Heights and Cowiche Canyon brochure issued by the cross the plateau landscape, although along the Tieton andesite cliffs also Bureau of Land Management’s Spokane the proposed viticultural area contains distinguish the plateau from the District that contained a drawing several intermittent streams and small surrounding regions, according the showing the Naches Heights ponds. petition. The lowest elevations of the geographical area, with Cowiche proposed viticultural area are Canyon to the immediate west at lower Distinguishing Features approximately 1,200 feet, which is at elevations. The petition states that geology, the tip of the andesite flow at the far geography, and soils distinguish the eastern edge of the proposed viticultural Boundary Evidence proposed viticultural area from the area. From this point, the cliffs rise to According to USGS maps submitted surrounding areas. 1,400 feet, according to the USGS maps. with the petition, the Naches Heights The highest elevation of the plateau, plateau landform is surrounded by Geology located near the far western end of the lower elevation valleys and the lower The petition states that approximately proposed viticultural area, is Tieton River to the west, the Naches one million years ago, the termination of approximately 2,100 feet, at which point River to the north and east, and andesite flow from the Cascade the cliffs drop immediately to 1,600 feet. Cowiche Creek to the south and west. Mountains down the valley of the The Yakima City Hall lies to the The man-made Congdon (Schuler) Canal Tieton River formed the Naches Heights southeast of the proposed viticultural is located along a portion of the plateau. The proposed Naches Heights area at 1,061 feet, a significantly lower proposed eastern boundary line, closely viticultural area is located on, and elevation than that of the Naches following the 1,300-foot elevation line. encompasses, a geological formation of Heights. As explained in the petition, TTB notes that these landforms are Tieton andesite, a volcanic rock. cold air drains off the plateau and into distinguishable on both the aerial According to the petition, in contrast the surrounding valleys, thereby photographs and the USGS maps to the Naches Heights plateau, there are reducing potential frost damage and submitted with the petition. alluvial deposits, including those that winterkill to vineyards on the Naches Comparison of the Proposed Naches are terraced and older, to the north, east, Heights. and south of the proposed viticultural Heights Viticultural Area to the Existing Soils Columbia Valley Viticultural Area area. To the west of the area are alluvial deposits and Grande Ronde Basalt, After the volcanic flow of andesite The proposed Naches Heights Ringold Formation gravels, the cooled and hardened to form the Naches viticultural area lies entirely within, and Ellensburg Formation, and the Cascade Heights plateau, pockets of loess, or is 0.001 percent the size of, the Mountains. wind-blown soil, were deposited on the Columbia Valley viticultural area. The plateau, according to the petition. After 11.6 million acre Columbia Valley Geography a period of about 1 million years marked viticultural area was established by T.D. The petition states that the proposed by winds and volcanic eruptions in the ATF–190, published in the Federal Naches Heights viticultural area is a Cascades, deep beds of unique soils Register (49 FR 44895) on November 13, plateau that terminates in cliffs of formed in the loess pockets on the 1984. It was described as a large, andesite to the north, east, and south. plateau. The predominant soils on the treeless basin surrounding the Yakima, The andesite cliffs distinguish the plateau are Tieton loam and Ritzville Snake, and Columbia Rivers in portions proposed viticultural area from the silt loam (U.S. Department of of Washington and Oregon. The Naches River Valley, the Cowiche Creek Agriculture, National Resource topography of the Columbia Valley Valley, and the nearby Yakima River Conservation Service, Web Soil Survey viticultural area was described as a Valley. The USGS maps show that the at http://websoilsurvey.nrcs.usda.gov/). rolling terrain, cut by rivers and broken Naches Heights plateau is elevated in According to the petition, the only by long, sloping, basaltic, east-west comparison to the surrounding river and major difference between Tieton loam uplifts. In addition, T.D. ATF–190 creek valleys. Aerial photos submitted and Ritzville silt loam is that the latter stated that the Columbia Valley with the petition also show the Naches formed in deeper pockets of loess, thus viticultural area is dominated by major Heights plateau landform and the cliffs creating a very consistent soil type rivers and has a long, dry growing that surround it in contrast with the throughout the proposed viticultural season. The Naches Heights petition surrounding lower elevation valleys. area. notes that the ancient Missoula Floods On the far west side of the proposed The Naches Heights plateau landform, carved much of the basin geography viticultural area, the andesite cliffs are according to the NRCS web soil survey, within the Columbia Valley AVA. subsumed by the foothills of the has generally deep loess soils with

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77698 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

adequate drainage and deep rooting conflict between the proposed in this document specifies only the full depths conducive to successful viticulturally significant terms and ‘‘Naches Heights’’ name as a term of viticulture. Further, the grape vine roots currently used brand names. viticultural significance for purposes of are not prone to freezing, or winterkill, TTB received no comments in part 4 of the TTB regulations. The in the deep plateau soils. response to Notice No. 118. establishment of the Naches Heights Unlike the plateau, much of the TTB Finding viticultural area will not affect any greater Columbia Valley region that existing viticultural area, and any surrounds the Naches Heights was After careful review of the petition, bottlers using Columbia Valley as an covered by alluvial material deposited and after receiving no contrary evidence appellation of origin or in a brand name by the ancient Missoula Floods, during the comment period, TTB finds for wines made from grapes grown according to the petition. Hence, the that the evidence provided by the within the Naches Heights viticultural proposed viticultural area is surrounded petitioner supports the establishment of area will not be affected by the mainly by gravelly alluvial soils readily the proposed Naches Heights establishment of this new viticultural distinguishable from the Tieton loam viticultural area within the Columbia area. The establishment of the Naches and Ritzville silt loam of Naches Valley viticultural area as proposed in Heights viticultural area will allow Heights. Harwood loam, a transitional Notice No. 118. Accordingly, under the vintners to use both ‘‘Naches Heights’’ soil formed in both loess and alluvium, authority of the Federal Alcohol and ‘‘Columbia Valley’’ as appellations is located in small areas of the southern Administration Act and part 4 of TTB’s of origin for wines made from grapes portion of the Naches Heights that is regulations, TTB establishes the grown within the Naches Heights outside the boundary line of the ‘‘Naches Heights’’ viticultural area in viticultural area. proposed viticultural area. Yakima County, Washington, effective For a wine to be labeled with a Rocks, cobbles, and shallow rooting 30 days from the publication date of this viticultural area name or with a brand depths are characteristics of the lower document. name that includes a viticultural area elevation valley region that surrounds name or other term identified as being the Naches Heights plateau, according Boundary Description viticulturally significant in part 9 of the to the NRCS data. In the valley region, See the narrative boundary TTB regulations, at least 85 percent of the cold air from the surrounding description of the viticultural area in the the wine must be derived from grapes mountain elevations drains onto the regulatory text published at the end of grown within the area represented by valley floor and ponds to create this notice. In this final rule, TTB that name or other term, and the wine stagnant, cold air environments that altered some of the language in the must meet the other conditions listed in make vine growth difficult during some written boundary description provided 27 CFR 4.25(e)(3). If the wine is not seasons, the petition explains. Unlike in the petition and published as part of eligible for labeling with the viticultural the Naches Heights soils, the valley and Notice No. 118. TTB made these area name or other viticulturally floodplain soils, including the Weirman, alterations in the written boundary significant term and that name or term Wenas, and Kittitas series, are subject to description language for clarity and to appears in the brand name, then the seasonal flooding and a water table conform the written boundary label is not in compliance and the close to the surface of the soil, according description to the boundary of the bottler must change the brand name and to NRCS data. In addition, the valley proposed viticultural area as marked on obtain approval of a new label. vines have shallow rooting depths that the USGS maps submitted with the Similarly, if the viticultural area name can reach the water table and be frozen petition. during extreme cold weather. Further, or other term of viticultural significance seasonal flooding can affect some Maps appears in another reference on the portions of the surrounding valley area. The maps for determining the label in a misleading manner, the bottler boundary areas of the viticultural area would have to obtain approval of a new Notice of Proposed Rulemaking and are listed below in the regulatory text. label. Comments Received Different rules apply if a wine has a TTB published Notice No. 118 Impact on Current Wine Labels brand name containing a viticultural regarding the proposed Naches Heights Part 4 of the TTB regulations prohibits area name or other term of viticultural viticultural area in the Federal Register any label reference on a wine that significance that was used as a brand (76 FR 30060) on May 24, 2011. In that indicates or implies an origin other than name on a label approved before July 7, notice, TTB requested comments from the wine’s true place of origin. With the 1986. See 27 CFR 4.39(i)(2) for details. all interested persons by July 25, 2011. establishment of this viticultural area, Regulatory Flexibility Act TTB solicited comments on the its name, ‘‘Naches Heights,’’ is accuracy of the name, boundary, and recognized as a name of viticultural TTB certifies that this regulation will other required information submitted in significance under 27 CFR 4.39(i)(3). not have a significant economic impact support of the petition. TTB expressed The text of the regulation clarifies this on a substantial number of small particular interest in whether the point. Once this final rule becomes entities. The regulation imposes no new geographical features of the proposed effective, wine bottlers using ‘‘Naches reporting, recordkeeping, or other viticultural area are so distinguishable Heights’’ in a brand name, including a administrative requirement. Any benefit from the surrounding Columbia Valley trademark, or in another label reference derived from the use of a viticultural viticultural area that the proposed as to the origin of the wine, will have area name would be the result of a Naches Heights viticultural area should to ensure that the product is eligible to proprietor’s efforts and consumer no longer be a part of the Columbia use the viticultural area’s name as an acceptance of wines from that area. Valley viticultural area. TTB also sought appellation of origin. Therefore, no regulatory flexibility information on the impact of the On the other hand, TTB finds that no analysis is required. establishment of the proposed Naches single part of the proposed viticultural Executive Order 12866 Heights viticultural area on wine labels area name standing alone, such as that include the words ‘‘Naches ‘‘Naches,’’ has viticultural significance. This final rule is not a significant Heights,’’ and whether there would be a Accordingly, the regulatory text set forth regulatory action as defined by

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77699

Executive Order 12866. Therefore, it and then onto the Naches map, line with the section 26 north boundary requires no regulatory assessment. approximately 6.25 miles to the line, T14N/R17E; then confluence of the North and South (14) Proceed straight east along the Drafting Information Forks of Cowiche Creek, south of section 26 north boundary line Karen A. Thornton of the Regulations Mahoney Road, section 3, T13N/R17E; approximately 0.25 mile to the and Rulings Division drafted this final then intersection of the section 26 north rule. (3) Proceed upstream (northwesterly) boundary line with the 1,400-foot List of Subjects in 27 CFR Part 9 along the North Fork of Cowiche Creek elevation line, T14N/R17E; then approximately 1.6 miles to the (15) Proceed southeasterly along the Wine. intersection of the North Fork with 1,400-foot elevation line approximately The Regulatory Amendment Livengood Road, section 34, T14N/ 2.5 miles to the intersection of the R17E; then 1,400-foot elevation line with Young For the reasons discussed in the (4) Proceed north and northwest on Grade Road, section 31, T14N/R18E; preamble, TTB amends title 27, chapter Livengood Road approximately 1.12 I, part 9, Code of Federal Regulations, as then miles until the road turns west and joins (16) Proceed east in a straight line follows: Forney Road, and continue approximately 0.15 mile to the Congdon PART 9—AMERICAN VITICULTURAL approximately 1.02 miles along Forney (Schuler) Canal, which closely parallels AREAS Road to the intersection of Forney Road the 1,300-foot elevation line, section 31, with the North Fork of Cowiche Creek, T14N/R18E; and then ■ 1. The authority citation for part 9 section 28 northwest corner, T14N/ (17) Proceed southeasterly along the continues to read as follows: R17E; then Congdon (Schuler) Canal, onto the Selah Authority: 27 U.S.C. 205. (5) Proceed upstream (northwesterly) map, approximately 3.25 miles, along the North Fork of Cowiche Creek returning to the beginning point, section ■ 2. Subpart C is amended by adding approximately 1.8 miles to the 9, T13N/R18E. § 9.222 to read as follows: intersection of the North Fork with the Signed: September 28, 2011. section 17 west boundary line, T14N/ John J. Manfreda, Subpart C—Approved American R17E; then Viticultural Areas (6) Proceed straight north along the Administrator. Approved: October 20, 2011. § 9.222 Naches Heights. section 17 west boundary line to its Timothy E. Skud, (a) Name. The name of the viticultural intersection with Cox Road, and then area described in this section is ‘‘Naches continue north along Cox Road to the Deputy Assistant Secretary, Tax, Trade, and Tariff Policy. Heights’’. For purposes of part 4 of this intersection of Cox Road with chapter, ‘‘Naches Heights’’ is a term of Rosenkranz Road, section 17 northwest [FR Doc. 2011–32017 Filed 12–13–11; 8:45 am] viticultural significance. corner, T14N/R17E; then BILLING CODE 4810–31–P (b) Approved maps. The five United (7) Proceed west on Rosenkranz Road, States Geological Survey 1:24,000 scale onto the Tieton map, approximately 0.6 topographic maps used to determine the mile to the intersection of Rosenkranz NATIONAL LABOR RELATIONS boundary of the Naches Heights Road with North Tieton Road, section 7 BOARD viticultural area are titled: south boundary line, T14N/R17E; then (1) Selah, Wash., 1958, photorevised (8) Proceed north on North Tieton 29 CFR Part 102 1985; Road approximately 0.5 mile to the (2) Yakima West, Wash., 1958, intersection of North Tieton Road with Special Procedural Rules Governing photorevised 1985; Dilley Road, section 7, T14N/R17E; then Periods When the National Labor (3) Wiley City, Wash., 1958, (9) Proceed west on Dilley Road Relations Board Lacks a Quorum of photorevised 1985; approximately 0.5 mile to the Members (4) Naches, Wash., 1958, photorevised intersection of Dilley Road with AGENCY: National Labor Relations Franklin Road, section 7 west boundary 1978; and Board. (5) Tieton, Wash., 1971, line and the R16E and R17E common photoinspected 1981. line, T14N; then ACTION: Final rule. (c) Boundary. The Naches Heights (10) Proceed north on Franklin Road SUMMARY: The National Labor Relations viticultural area is located in Yakima approximately 0.8 mile to the Board is revising its rules governing the County, Washington. The boundary of intersection of Franklin Road with consideration of certain pleadings that the Naches Heights viticultural area is Schenk Road and the section 6 west ordinarily require action by a quorum of as described below: boundary line, T14N/R16E; then at least three Board Members. The (1) The beginning point is on the (11) Proceed west on Schenk Road revisions are being adopted to facilitate, Selah map at the intersection of the approximately 0.55 mile to the insofar as it is possible, the normal Burlington Northern single-track rail intersection of Schenk Road with functioning of the Agency during line and the Congdon (Schuler) Canal, Section 1 Road, section 1, T14N/R16E; periods when the number of Board section 9, T13N/R18E. From the then beginning point, proceed south- (12) Proceed straight north from the members falls below three, the number southwesterly along the single rail line, intersection of Schenk Road and Section required to establish a quorum of the onto the Yakima West map, 1 Road approximately 2.2 miles to the Board. The effect of the revisions is to approximately 0.35 mile to the first 1,600-foot elevation line, section 36, provide the public with avenues for intersection of the rail line with an T15N/R16E; then resolving certain issues, while deferring unnamed creek, locally known as (13) Proceed easterly and then full review by the Board until a quorum Cowiche Creek, section 9, T13N/R18E; southeasterly along the 1,600-foot has been restored. then elevation line, onto the Naches map, DATES: Effective December 14, 2011. (2) Proceed upstream (westerly) along approximately 7.5 miles to the FOR FURTHER INFORMATION CONTACT: Cowiche Creek, onto the Wiley City map intersection of the 1,600-foot elevation Lester A. Heltzer, Executive Secretary,

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77700 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

National Labor Relations Board, 1099 and administrative and procedural flexibility analysis do not apply to these 14th Street NW., Room 11600, motions will be referred to the rules. However, even if the Regulatory Washington, DC 20570. Telephone (202) Executive Secretary for ruling. In all Flexibility Act were to apply, the NLRB 273–1067 (this is not a toll-free cases of such referrals, parties will certifies that these rules will not have a number), 1–(866) 315–6572 (TTY/TDD). retain the right to full Board review by significant economic impact on a SUPPLEMENTARY INFORMATION: The filing a request for review or exceptions substantial number of small business National Labor Relations Board is to the ruling at the appropriate time. entities as they merely provide parties revising its rules governing the Normal time limits for filing will apply, with avenues for expeditiously pursuing consideration of certain pleadings that and the case will be considered on its and defending claims before the Board ordinarily require action by a quorum of merits by the Board upon restoration of under certain narrow circumstances. a quorum. at least three Board Members. The Paperwork Reduction Act revisions are being adopted to facilitate, It is anticipated that these changes in insofar as it is possible, the normal the rules will serve the interest of the These rules are not subject to Section functioning of the Agency during public and the parties in the speedy 3504(h) of the Paperwork Reduction Act periods when the number of Board resolution of disputes, where that (44 U.S.C. 3501) since they do not members falls below three, the number resolution is possible, as well as in the contain any new information collection required to establish a quorum of the litigation of cases before administrative requirements. Board. See 29 U.S.C. 153(b); New law judges with as few disruptions as possible. In addition, the Board Small Business Regulatory Enforcement Process Steel v. NLRB, —U.S.—, 130 Fairness Act S.Ct. 2635 (2010). No Notice of anticipates that, as in some cases the Proposed Rulemaking (NPRM) is parties will determine that no exception Because these rules relate to Agency required with respect to this rules is warranted, these revisions may serve procedure and practice and merely revision, as it falls under the to reduce the backlog of cases that the modify the Agency’s internal processing Administrative Procedure Act’s Board will face when a quorum is of certain motions in narrow exception to the NPRM requirement for restored. circumstances, the Board has regulatory actions involving agency Executive Order 12866 determined that the Congressional organization, procedure, or practice. See The regulatory review provisions of review provisions of the Small Business 5 U.S.C. 553. Executive Order 12866 do not apply to Regulatory Enforcement Fairness Act (5 At present, the rules of the National independent regulatory agencies. U.S.C. 801) do not apply. Labor Relations Board (NLRB) provide However, even if they did, the proposed List of Subjects in 29 CFR Part 102 only for the adjudication of cases and changes in the Board’s rules would not the issuance of decisions by the Board be classified as ‘‘significant rules’’ under Administrative practice and when it is composed of three or more Section 6 of Executive Order 12866, procedure; Labor-management relations. members, which constitutes the because they will not result in (1) an To provide for the normal operation Congressionally-designated quorum of annual effect on the economy of $100 of the Board during periods when the the Board. In New Process Steel v. million or more; (2) a major increase in number of Board members is NLRB, supra, 130 S. Ct. 2635, the costs or prices for consumers, insufficient to constitute a quorum, the Supreme Court held that Congress individual industries, Federal, State, or Board amends 29 CFR part 102 as empowered the Board to delegate its local government agencies, or follows: powers to no fewer than three members, geographic regions; or (3) significant and that, to maintain a valid quorum, a adverse effects on competition, PART 102—RULES AND membership of three must be employment, investment, productivity, REGULATIONS, SERIES 8 maintained. Id. at 2640. It can be innovation, or on the ability of United anticipated that, from time to time, the States-based enterprises to compete ■ 1. The authority citation for 29 CFR number of individuals appointed by the with foreign-based enterprises in part 102 continues to read as follows: President and confirmed by Congress to domestic or foreign markets. Authority: Section 6, National Labor serve as members of the National Labor Accordingly, no regulatory impact Relations Act, as amended (29 U.S.C. 151, Relations Board may fall below three. assessment is required. 156). Section 102.117 also issued under Thus, the Board has determined that the Section 552(a)(4)(A) of the Freedom of purposes of the National Labor Unfunded Mandates Reform Act of Information Act, as amended (5 U.S.C. Relations Act will best be served, and 1995 552(a)(4)(A)). Sections 102.143 through the Board’s Congressional mandate will This rule will not result in the 102.155 also issued under Section 504(c)(1) best be carried out, if its rules were expenditure by State, local, and tribal of the Equal Access to Justice Act, as revised to refer, under those governments, in the aggregate, or by the amended (5 U.S.C. 504(c)(1)). circumstances only, certain motions and private sector, of $100 million or more ■ 2. Add subpart X to read as follows: appeals to other offices of the Board, in any one year, and it will not while preserving for the parties the right significantly or uniquely affect small Subpart X—Special Procedures When the to ultimate review by the Board when a governments. Therefore, no actions were Board Lacks a Quorum quorum is restored. In this regard, the deemed necessary under the provisions Sec. Board has identified certain classes of of the Unfunded Mandates Reform Act 102.178 Normal operations should disputes that are amendable to of 1995. continue. processing through other Board offices; 102.179 Motions for default judgment, i.e., Motions for Summary Judgment, Regulatory Flexibility Act summary judgment, or dismissal referred to Chief Administrative Law Judge. Motions for Default Judgment, Motions Because no notice of proposed 102.180 Requests for special permission to for Dismissal of Complaints, and rulemaking is required for procedural appeal referred to Chief Administrative requests for permission to file special rules, the requirements of the Law Judge. appeals will be referred to the Chief Regulatory Flexibility Act (5 U.S.C. 601 102.181 Administrative and procedural Administrative Law Judge for ruling, et seq.) pertaining to regulatory requests referred to Executive Secretary.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77701

Subpart X—Special Procedures When Signed in Washington, DC, on December 8, www.regulations.gov or email the Board Lacks a Quorum 2011. information that you consider to be CBI Mark Gaston Pearce, or otherwise protected. The http:// § 102.178 Normal operations should Chairman. www.regulations.gov Web site is an continue. [FR Doc. 2011–32085 Filed 12–13–11; 8:45 am] ‘‘anonymous access’’ system, which The policy of the National Labor BILLING CODE P means EPA will not know your identity Relations Board is that during any or contact information unless you period when the Board lacks a quorum provide it in the body of your comment. normal Agency operations should ENVIRONMENTAL PROTECTION If you send an email comment directly continue to the greatest extent permitted AGENCY to EPA without going through http:// by law. www.regulations.gov, your email 40 CFR Part 52 and Part 70 address will be automatically captured § 102.179 Motions for default judgment, and included as part of the comment summary judgment, or dismissal referred to [EPA–R07–OAR–2011–0822; FRL–9505–8] that is placed in the public docket and Chief Administrative Law Judge. made available on the Internet. If you During any period when the Board Approval and Promulgation of Implementation Plans; State of submit an electronic comment, EPA lacks a quorum, all motions for default recommends that you include your Missouri judgment, summary judgment, or name and other contact information in dismissal filed or pending pursuant to AGENCY: Environmental Protection the body of your comment and with any § 102.50 of this part shall be referred to Agency (EPA). disk or CD–ROM you submit. If EPA the Chief Administrative Law Judge in ACTION: Direct final rule. cannot read your comment due to Washington, DC, for ruling. Such technical difficulties and cannot contact rulings by the Chief Administrative Law SUMMARY: EPA is taking direct final you for clarification, EPA may not be Judge, and orders in connection action to approve a revision to the able to consider your comment. therewith, shall not be appealed directly Missouri State Implementation Plan Electronic files should avoid the use of to the Board, but shall be considered by (SIP) and Operating Permits Program. special characters, any form of the Board in reviewing the record if EPA is approving a revision to the encryption, and be free of any defects or exception to the ruling or order is Missouri rule entitled ‘‘Submission of viruses. included in the statement of exceptions Emission Data, Emission Fees and Docket: All documents in the docket filed with the Board pursuant to Process Information.’’ These revisions are listed in the http:// § 102.46 of this part. align the State’s reporting requirements www.regulations.gov index. Although listed in the index, some information is § 102.180 Requests for special permission with the Federal Air Emissions Reporting Requirements Rule (AERR). not publicly available, i.e., CBI or other to appeal referred to Chief Administrative information whose disclosure is Law Judge. DATES: This direct final rule will be restricted by statute. Certain other During any period when the Board effective February 13, 2012, without further notice, unless EPA receives material, such as copyrighted material, lacks a quorum, any request for special will be publicly available only in hard adverse comment by January 13, 2012. permission to appeal filed or pending copy form. Publicly available docket If EPA receives adverse comment, we pursuant to § 102.26 of this part shall be materials are available either will publish a timely withdrawal of the referred to the Chief Administrative Law electronically in http:// direct final rule in the Federal Register Judge in Washington, DC, for ruling. www.regulations.gov or in hard copy at informing the public that the rule will Such rulings by the Chief the Environmental Protection Agency, not take effect. Administrative Law Judge, and orders in Air Planning and Development Branch, connection therewith, shall not be ADDRESSES: Submit your comments, 901 North 5th Street, Kansas City, appealed directly to the Board, but shall identified by Docket ID No. EPA–R07– Kansas 66101. The Regional Office’s be considered by the Board in reviewing OAR–2011–0822, by one of the official hours of business are Monday the record if exception to the ruling or following methods: through Friday, 8 to 4:30 excluding order is included in the statement of 1. http://www.regulations.gov. Follow Federal holidays. The interested persons exceptions filed with the Board the on-line instructions for submitting wanting to examine these documents pursuant to § 102.46. comments. should make an appointment with the 2. Email: [email protected]. office at least 24 hours in advance. § 102.181 Administrative and procedural 3. Mail or Hand Delivery: Amy requests referred to Executive Secretary. FOR FURTHER INFORMATION CONTACT: Bhesania, Environmental Protection Amy Bhesania at (913) 551–7147, or by During any period when the Board Agency, Air Planning and Development email at [email protected]. lacks a quorum, administrative and Branch, 901 North 5th Street, Kansas SUPPLEMENTARY INFORMATION: procedural requests that would City, Kansas 66101. Throughout this document ‘‘we,’’ ‘‘us,’’ normally be filed with the Office of the Instructions: Direct your comments to or ‘‘our’’ refer to EPA. Executive Secretary for decision by the Docket ID No. EPA–R07–OAR–2011– Board prior to the filing of a request for 0822. EPA’s policy is that all comments Outline review under § 102.67 of this part, or received will be included in the public I. What is being addressed in this document? exceptions under §§ 102.46 and 102.69 docket without change and may be II. What action is EPA taking? of this part, shall be referred to the made available online at http:// Executive Secretary for ruling. Such www.regulations.gov, including any I. What is being addressed in this rulings by the Executive Secretary, and personal information provided, unless document? orders in connection therewith, shall the comment includes information EPA is approving revisions to the not be appealed directly to the Board, claimed to be Confidential Business Missouri SIP and Operating Permits but shall be considered by the Board if Information (CBI) or other information Program submitted to EPA on August such matters are raised by a party in its whose disclosure is restricted by statute. 31, 2010. On December 17, 2008, EPA request for review or exceptions. Do not submit through http:// finalized the Air Emissions Reporting

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77702 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Requirements Rule (AERR). This rule Statutory and Executive Order Reviews The Congressional Review Act, outlines EPA’s emission inventory Under the Clean Air Act (CAA), the 5 U.S.C. 801 et seq., as added by the reporting requirements. In the December Administrator is required to approve a Small Business Regulatory Enforcement 17, 2008 action, EPA consolidated, SIP submission that complies with the Fairness Act of 1996, generally provides reduced and simplified the current provisions of the Act and applicable that before a rule may take effect, the requirements; added limited new Federal regulations. 42 U.S.C. 7410(k); agency promulgating the rule must requirements; provided additional 40 CFR 52.02(a). Thus, in reviewing SIP submit a rule report, which includes a flexibility to the states in the ways they submissions, EPA’s role is to approve copy of the rule, to each House of the collect and report emissions data; and state choices, provided that they meet Congress and to the Comptroller General accelerated the reporting of emissions the criteria of the CAA. Accordingly, of the United States. EPA will submit a data to EPA by state and local agencies. this action merely approves state law as report containing this action and other Revisions to the SIP amend 10 CSR 10– meeting Federal requirements and does required information to the U.S. Senate, 6.110 Submission of Emission Data, not impose additional requirements the U.S. House of Representatives, and Emission Fees and Process Information beyond those imposed by state law. For the Comptroller General of the United to align the State’s Air Pollution Control that reason, this action: States prior to publication of the rule in Program reporting requirements with • Is not a ‘‘significant regulatory the Federal Register. A major rule EPA’s reporting requirements. action’’ subject to review by the Office cannot take effect until 60 days after it Specifically, the State moved the of Management and Budget under is published in the Federal Register. Emissions Inventory Questionnaire Executive Order 12866 (58 FR 51735, This action is not a ‘‘major rule’’ as (EIQ) due date from June 1 to April 1; October 4, 1993); defined by 5 U.S.C. 804(2). codified several long-standing practices • Does not impose an information for items such as initial EIQ reporting collection burden under the provisions Under section 307(b)(1) of the CAA, periods for partial year operation and of the Paperwork Reduction Act petitions for judicial review of this reporting thresholds for required (44 U.S.C. 3501 et seq.); action must be filed in the United States pollutants; added definitions; and • Is certified as not having a Court of Appeals for the appropriate clarified record keeping and reporting significant economic impact on a circuit by February 13, 2012. Filing a requirements. The State retained the substantial number of small entities petition for reconsideration by the emission fee at $40.00 and the fee under the Regulatory Flexibility Act Administrator of this final rule does not payment due date of June 1, but (5 U.S.C. 601 et seq.); affect the finality of this action for the recodified this section to section (3)(A), • Does not contain any unfunded purposes of judicial review nor does it Emissions Fees from Section (3)(D). No mandate or significantly or uniquely extend the time within which a petition changes are being made to the affect small governments, as described for judicial review may be filed, and Emissions Fees, which is an integral in the Unfunded Mandates Reform Act shall not postpone the effectiveness of part of the Title V operating permit of 1995 (Pub. L. 104–4); such rule or action. Parties with program, but not approved as part of the • Does not have Federalism objections to this direct final rule are SIP. Missouri’s amendments ensure that implications as specified in Executive encouraged to file a comment in their reporting requirements align with Order 13132 (64 FR 43255, August 10, response to the parallel notice of EPA’s AERR. EPA has conducted an 1999); proposed rulemaking for this action analysis of the State’s amendments and • Is not an economically significant published in the proposed rules section concluded that these do not adversely regulatory action based on health or of today’s Federal Register, rather than affect the stringency of the SIP. safety risks subject to Executive Order file an immediate petition for judicial What action is EPA taking? 13045 (62 FR 19885, April 23, 1997); review of this direct final rule, so that • Is not a significant regulatory action EPA can withdraw this direct final rule EPA is approving the request to subject to Executive Order 13211 (66 FR and address the comment in the amend the Missouri SIP and operating 28355, May 22, 2001); proposed rulemaking. This action may permits program by approving the • Is not subject to requirements of State’s request to amend 10 CSR 10– not be challenged later in proceedings to Section 12(d) of the National enforce its requirements. (See section 6.110 Submission of Emission Data, Technology Transfer and Advancement 307(b)(2).) Emission Fees and Process Information Act of 1995 (15 U.S.C. 272 note) because to align the State’s rule with EPA’s application of those requirements would List of Subjects reporting requirements. Approval of be inconsistent with the Clean Air Act; these revisions will ensure consistency and 40 CFR Part 52 between state and Federally-approved • Does not provide EPA with the Environmental protection, Air rules. EPA has determined that these discretionary authority to address, as pollution control, Carbon monoxide, changes will not relax the SIP or appropriate, disproportionate human adversely impact air emissions. Incorporation by reference, health or environmental effects, using Intergovernmental relations, Lead, We are processing this action as a practicable and legally permissible Nitrogen dioxide, Ozone, Particulate direct final action because the revisions methods, under Executive Order 12898 matter, Reporting and recordkeeping make routine changes to the existing (59 FR 7629, February 16, 1994). requirements, Sulfur oxides, Volatile rules which are noncontroversial. In addition, this rule does not have Therefore, we do not anticipate any Tribal implications as specified by organic compounds. adverse comments. Please note that if Executive Order 13175 (65 FR 67249, 40 CFR Part 70 EPA receives adverse comment on part November 9, 2000), because the SIP is of this rule and if that part can be not approved to apply in Indian country Administrative practice and severed from the remainder of the rule, located in the state, and EPA notes that procedure, Air pollution control, EPA may adopt as final those parts of it will not impose substantial direct Intergovernmental relations, Operating the rule that are not the subject of an costs on Tribal governments or preempt permits, Reporting and recordkeeping adverse comment. Tribal law. requirements.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77703

Dated: November 28, 2011. PART 52—[AMENDED] Subpart AA—Missouri Karl Brooks, ■ Regional Administrator, Region 7. ■ 1. The authority citation for part 52 2. In § 52.1320 the table in paragraph continues to read as follows: (c) is amended by revising entry for 10– Chapter I, title 40 of the Code of 6.110 to read as follows: Federal Regulations is amended as Authority: 42 U.S.C. 7401 et seq. follows: § 52.1320 Identification of plan. * * * * * (c) * * *

EPA-APPROVED MISSOURI REGULATIONS

State effective Missouri citation Title date EPA approval date Explanation

Missouri Department of Natural Resources

*******

Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri

*******

10–6.110 ...... Submission of Emission Data, 09/30/2010 12/14/2011 [insert FR page Section (3)(A), Emissions Emission Fees, and Proc- number where the docu- Fees, has not been ap- ess Information. ment begins]. proved as part of the SIP

*******

* * * * * ENVIRONMENTAL PROTECTION information is not publicly available, AGENCY e.g., Confidential Business Information PART 70—[AMENDED] (CBI) or other information whose 40 CFR Part 180 disclosure is restricted by statute. ■ 3. The authority citation for part 70 [EPA–HQ–OPP–2010–0916; FRL–9327–7] Certain other material, such as continues to read as follows: copyrighted material, is not placed on Authority: 42 U.S.C. 7401, et seq. Hexythiazox; Pesticide Tolerances the Internet and will be publicly available only in hard copy form. Appendix A—[Amended] AGENCY: Environmental Protection Publicly available docket materials are Agency (EPA). available in the electronic docket at ■ 4. Appendix A to part 70 is amended ACTION: Final rule. http://www.regulations.gov, or, if only by revising paragraph (v) under available in hard copy, at the OPP SUMMARY: This regulation establishes Missouri to read as follows: Regulatory Public Docket in Rm. S– new tolerances and revises existing 4400, One Potomac Yard (South Bldg.), Appendix A to Part 70—Approval Status of tolerances for residues of hexythiazox in 2777 S. Crystal Dr., Arlington, VA. The State and Local Operating Permits Programs or on multiple commodities which are Docket Facility is open from 8:30 a.m. identified and discussed later in this * * * * * to 4 p.m., Monday through Friday, document. Gowan Company and the excluding legal holidays. The Docket Missouri Interregional Research Project Number 4 Facility telephone number is (703) 305– * * * * * (IR–4) requested the tolerances under 5805. (v) The Missouri Department of Natural the Federal Food, Drug, and Cosmetic Resources submitted revisions to Missouri Act (FFDCA). FOR FURTHER INFORMATION CONTACT: Olga Odiott, Registration Division (7505P), rule 10 CSR 10–6.110, ‘‘Submission of DATES: This regulation is effective Office of Pesticide Programs, Emission Data, Emission Fees, and Process December 14, 2011. Objections and Environmental Protection Agency, 1200 Information’’ on August 31, 2010; approval of requests for hearings must be received Pennsylvania Ave. NW., Washington, section (3)(A) effective February 13, 2012. on or before February 13, 2012, and DC 20460–0001; telephone number: * * * * * must be filed in accordance with the (703) 308–9369; email address: [FR Doc. 2011–31919 Filed 12–13–11; 8:45 am] instructions provided in 40 CFR part [email protected]. BILLING CODE 6560–50–P 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION). SUPPLEMENTARY INFORMATION: ADDRESSES: EPA has established a I. General Information docket for this action under docket identification (ID) number EPA–HQ– A. Does this action apply to me? OPP–2010–0916. All documents in the You may be potentially affected by docket are listed in the docket index this action if you are an agricultural available at http://www.regulations.gov. producer, food manufacturer, or Although listed in the index, some pesticide manufacturer. Potentially

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77704 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

affected entities may include, but are EPA–HQ–OPP–2010–0916, by one of ii. By adding a request for an increase not limited to those engaged in the the following methods: in the established tolerances for cattle, following activities: • Federal eRulemaking Portal: http:// meat byproducts; goat, meat byproducts; • Crop production (NAICS code 111). www.regulations.gov. Follow the on-line hog, meat byproducts; horse, meat • Animal production (NAICS code instructions for submitting comments. byproducts; and sheep, meat byproducts 112). • Mail: Office of Pesticide Programs to 0.05 ppm; and • Food manufacturing (NAICS code (OPP) Regulatory Public Docket (7502P), iii. By adding a request for a decrease 311). Environmental Protection Agency, 1200 in the established tolerance for corn, • Pesticide manufacturing (NAICS Pennsylvania Ave. NW., Washington, field, forage to 3.0 ppm. code 32532). DC 20460–0001. The reasons for these changes are explained in Unit IV.C. This listing is not intended to be • Delivery: OPP Regulatory Public exhaustive, but rather to provide a guide Docket (7502P), Environmental III. Aggregate Risk Assessment and for readers regarding entities likely to be Protection Agency, Rm. S–4400, One Determination of Safety affected by this action. Other types of Potomac Yard (South Bldg.), 2777 S. Section 408(b)(2)(A)(i) of FFDCA entities not listed in this unit could also Crystal Dr., Arlington, VA. Deliveries allows EPA to establish a tolerance (the be affected. The North American are only accepted during the Docket legal limit for a pesticide chemical Industrial Classification System Facility’s normal hours of operation residue in or on a food) only if EPA (NAICS) codes have been provided to (8:30 a.m. to 4 p.m., Monday through determines that the tolerance is ‘‘safe.’’ assist you and others in determining Friday, excluding legal holidays). Section 408(b)(2)(A)(ii) of FFDCA whether this action might apply to Special arrangements should be made defines ‘‘safe’’ to mean that ‘‘there is a certain entities. If you have any for deliveries of boxed information. The reasonable certainty that no harm will questions regarding the applicability of Docket Facility telephone number is result from aggregate exposure to the this action to a particular entity, consult (703) 305–5805. pesticide chemical residue, including the person listed under FOR FURTHER II. Summary of Petitioned-for Tolerance all anticipated dietary exposures and all INFORMATION CONTACT. other exposures for which there is In the Federal Registers of December reliable information.’’ This includes B. How can I get electronic access to 15, 2010 (75 FR 78240) (FRL–8853–1) exposure through drinking water and in other related information? and February 4, 2011 (76 FR 6465) residential settings, but does not include (FRL–8858–7), EPA issued notices You may access a frequently updated occupational exposure. Section pursuant to section 408(d)(3) of FFDCA, electronic version of EPA’s tolerance 408(b)(2)(C) of FFDCA requires EPA to 21 U.S.C. 346a(d)(3), announcing the regulations at 40 CFR part 180 through give special consideration to exposure filing of pesticide petitions (PP 0F7773) the Government Printing Office’s e-CFR of infants and children to the pesticide by Gowan Company, 370 South Main site at http://ecfr.gpoaccess.gov/cgi/t/ chemical residue in establishing a St., Yuma, AZ 85364; and (PP 0E7787) text/text-idx?&c=ecfr&tpl=/ecfrbrowse/ tolerance and to ‘‘ensure that there is a _ by the Interregional Research Project Title40/40tab 02.tpl. reasonable certainty that no harm will Number 4 (IR–4), 500 College Road East, result to infants and children from C. How can I file an objection or hearing Suite 201 W, Princeton, NJ 08540. The aggregate exposure to the pesticide request? petitions requested that 40 CFR 180.448 chemical residue.’’ Under FFDCA section 408(g), 21 be amended by establishing tolerances Consistent with section 408(b)(2)(D) U.S.C. 346a, any person may file an for residues of the insecticide of FFDCA, and the factors specified in objection to any aspect of this regulation hexythiazox,(trans-5-(4-chlorophenyl)- section 408(b)(2)(D) of FFDCA, EPA has and may also request a hearing on those N-cyclohexyl-4-methyl-2- reviewed the available scientific data objections. You must file your objection oxothiazolidine-3-carboxamide), and other relevant information in or request a hearing on this regulation including its metabolites containing the support of this action. EPA has in accordance with the instructions (4-chlorophenyl)-4-methyl-2-oxo-3- sufficient data to assess the hazards of provided in 40 CFR part 178. To ensure thiazolidine moiety, in or on aspirated and to make a determination on proper receipt by EPA, you must grain fractions (PP 0F7773) at 0.5 parts aggregate exposure for hexythiazox identify docket ID number EPA–HQ– per million (ppm) and greenhouse including exposure resulting from the OPP–2010–0916 in the subject line on tomatoes (PP 0E7787) at 0.5 ppm; by tolerances established by this action. the first page of your submission. All increasing the existing tolerance for EPA’s assessment of exposures and risks objections and requests for a hearing corn, field, stover from 2.5 ppm to 6 associated with hexythiazox follows. must be in writing, and must be ppm, and by removing the designation received by the Hearing Clerk on or of ‘‘Tolerances with regional A. Toxicological Profile before February 13, 2012. Addresses for registrations’’ from the tolerances for EPA has evaluated the available mail and hand delivery of objections corn, field, forage; corn, field, grain; and toxicity data and considered its validity, and hearing requests are provided in 40 corn, field, stover (PP 0F7773). That completeness, and reliability as well as CFR 178.25(b). notice referenced a summary of the the relationship of the results of the In addition to filing an objection or petition prepared by Gowan Company, studies to human risk. EPA has also hearing request with the Hearing Clerk the registrant, which is available in the considered available information as described in 40 CFR part 178, please docket, http://www.regulations.gov. concerning the variability of the submit a copy of the filing that does not There were no comments received in sensitivities of major identifiable contain any CBI for inclusion in the response to the notice of filing. subgroups of consumers, including public docket. Information not marked Based on EPA’s review, Gowan infants and children. confidential pursuant to 40 CFR part 2 Company revised their petition (PP Hexythiazox has low acute toxicity by may be disclosed publicly by EPA 0F7773) as follows: the oral, dermal and inhalation routes of without prior notice. Submit a copy of i. By increasing the proposed exposure. It produces mild eye your non-CBI objection or hearing tolerance for corn, field, stover to 7.0 irritation, is not a dermal irritant, and is request, identified by docket ID number ppm; negative for dermal sensitization. The

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77705

target organs of hexythiazox are the liver the no-observed-adverse-effect-level dose at which no adverse effects are and adrenal glands. Developmental (NOAEL) and the lowest-observed- observed (the NOAEL) and the lowest toxicity was not observed in rabbits at adverse-effect-level (LOAEL) from the dose at which adverse effects of concern the limit dose. Developmental effects toxicity studies can be found at http:// are identified (the LOAEL). Uncertainty/ observed in the rat occurred only at a www.regulations.gov in document safety factors are used in conjunction dose level where maternal toxicity was ‘‘Hexythiazox. Human Health Risk with the POD to calculate a safe observed. Hexythiazox is not a Assessment to Support Amended Use exposure level—generally referred to as reproductive toxicant. The toxicology on Field Corn and New Use on a population adjusted dose (PAD) or a database for hexythiazox provides no Greenhouse Tomatoes’’ in docket ID reference dose (RfD)—and a safe margin indication of increased susceptibility in number EPA–HQ–OPP–2010–0916. of exposure (MOE). For non-threshold rats or rabbits from in utero and risks, the Agency assumes that any B. Toxicological Points of Departure/ postnatal exposure to hexythiazox. The amount of exposure will lead to some Levels of Concern database does not show any evidence of degree of risk. Thus, the Agency treatment-related effects on the nervous Once a pesticide’s toxicological estimates risk in terms of the probability system or the immune system. profile is determined, EPA identifies of an occurrence of the adverse effect Hexythiazox is classified as ‘‘likely to be toxicological points of departure (POD) expected in a lifetime. For more carcinogenic to humans’’. EPA has and levels of concern to use in information on the general principles determined that a non-quantitative risk evaluating the risk posed by human EPA uses in risk characterization and a assessment approach (i.e., nonlinear, exposure to the pesticide. For hazards complete description of the risk reference dose (RfD) approach) was that have a threshold below which there assessment process, see http:// appropriate and protective of all chronic is no appreciable risk, the toxicological www.epa.gov/pesticides/factsheets/ effects including potential POD is used as the basis for derivation riskassess.htm. carcinogenicity of hexythiazox. of reference values for risk assessment. A summary of the toxicological Specific information on the studies PODs are developed based on a careful endpoints for hexythiazox used for received and the nature of the adverse analysis of the doses in each human risk assessment is shown in effects caused by hexythiazox as well as toxicological study to determine the Table 1 of this unit.

TABLE 1—SUMMARY OF TOXICOLOGICAL DOSES AND ENDPOINTS FOR HEXYTHIAZOX FOR USE IN HUMAN HEALTH RISK ASSESSMENT

Point of departure and RfD, PAD, LOC for risk Exposure/scenario uncertainty/safety factors assessment Study and toxicological effects

Acute dietary (All popu- No risk is expected from this exposure scenario as no hazard was identified in any toxicity study for this duration lations). of exposure.

Chronic dietary (All popu- NOAEL= 2.5 mg/kg/day .... Chronic RfD = 0.025 mg/ One-Year Toxicity Feeding Study—Dog. lations). kg/day. UFA = 10x cPAD = 0.025 mg/kg/day .. LOAEL = 12.5 mg/kg/day based on increased abso- UFH = 10x lute and relative adrenal weights and associated ad- FQPA SF = 1x renal histopathology. Incidental oral short-term (1 NOAEL= 30 mg/kg/day ..... LOC for MOE = 100 ...... 2-Generation Reproduction Study—Rat. to 30 days ) and inter- UFA = 10x LOAEL = 180 mg/kg/day based on decreased pup mediate-term (1 to 6 UFH = 10x body weight during lactation and delayed hair months). FQPA SF = 1x growth and/or eye opening, and decreased parental body-weight gain and increased absolute and rel- ative liver, kidney, and adrenal weights. 13-Week Oral Toxicity Study—Rat. NOAEL = 5.5 mg/kg/day. LOAEL = 38 mg/kg/day, based on increased absolute and relative liver weights in both sexes, increased relative ovarian and kidney weights, and fatty de- generation of the adrenal zona fasciculata. @ 397.5/257.6 mg/kg/day, decreased body-weight gain in females, slight swelling of hepatocytes in central zone (both sexes), increased incidence of glomerulonephrosis in males, increased adrenal weights.

Cancer (oral, dermal, inhala- Classification: ‘‘Likely to be Carcinogenic to Humans’’. Insufficient evidence to warrant a quantitative estimation of tion). human risk using a cancer slope factor based on the common liver tumors (benign and malignant) observed only in high dose female mice, and benign mammary gland tumors of no biological significance, observed only in high dose male rats in the absence of mutagenic concerns. The chronic RfD is protective of all chronic effects includ- ing potential carcinogenicity of hexythiazox.

UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). FQPA SF = Food Quality Protection Act Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. MOE = margin of exposure. LOC = level of concern.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77706 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

C. Exposure Assessment water exposure models in the dietary Details of the residential exposure and 1. Dietary exposure from food and exposure analysis and risk assessment risk assessment can be found at http:// feed uses. In evaluating dietary for hexythiazox in drinking water. www.regulations.gov in document exposure to hexythiazox, EPA These simulation models take into ‘‘Hexythiazox. Human Health Risk considered exposure under the account data on the physical, chemical, Assessment to Support Amended Use petitioned-for tolerances as well as all and fate/transport characteristics of on Field Corn and New Use on existing hexythiazox tolerances in 40 hexythiazox. Further information Greenhouse Tomatoes,’’ in docket ID CFR 180.448. EPA assessed dietary regarding EPA drinking water models number EPA–HQ–OPP–2010–0916. exposures from hexythiazox in food as used in pesticide exposure assessment Further information regarding EPA can be found at http://www.epa.gov/ follows: standard assumptions and generic i. Acute exposure. Quantitative acute oppefed1/models/water/index.htm. inputs for residential exposures may be Based on the Pesticide Root Zone dietary exposure and risk assessments found at http://www.epa.gov/pesticides/ Model/Exposure Analysis Modeling are performed for a food-use pesticide, trac/science/trac6a05.pdf. System (PRZM/EXAMS), the estimated if a toxicological study has indicated the 4. Cumulative effects from substances drinking water concentration (EDWC) of possibility of an effect of concern with a common mechanism of toxicity. hexythiazox for chronic exposures for Section 408(b)(2)(D)(v) of FFDCA occurring as a result of a 1-day or single non-cancer and cancer assessments is exposure. No such effects were requires that, when considering whether estimated to be 4.5 parts per billion for to establish, modify, or revoke a identified in the toxicological studies surface water. Since surface water for hexythiazox; therefore, a quantitative tolerance, the Agency consider residues values greatly exceed ‘‘available information’’ concerning the acute dietary exposure assessment is groundwater EDWCs, surface water unnecessary. cumulative effects of a particular residues were used in the dietary risk pesticide’s residues and ‘‘other ii. Chronic exposure. In conducting assessment. Modeled estimates of the chronic dietary exposure assessment substances that have a common drinking water concentrations were mechanism of toxicity.’’ EPA used the food consumption data directly entered into the dietary EPA has not found hexythiazox to from the United States Department of exposure model. Agriculture (USDA) 1994–1996 and 3. From non-dietary exposure. The share a common mechanism of toxicity 1998 Nationwide Continuing Surveys of term ‘‘residential exposure’’ is used in with any other substances, and Food Intake by Individuals (CSFII). As this document to refer to non- hexythiazox does not appear to produce to residue levels in food, EPA used occupational, non-dietary exposure a toxic metabolite produced by other tolerance level residues, assumed 100 (e.g., for lawn and garden pest control, substances. For the purposes of this percent crop treated (PCT), and indoor pest control, termiticides, and tolerance action, therefore, EPA has incorporated DEEM default processing flea and tick control on pets). assumed that hexythiazox does not have factors. Hexythiazox is not currently a common mechanism of toxicity with iii. Cancer. EPA determines whether registered for any specific use patterns other substances. For information quantitative cancer exposure and risk that would result in residential regarding EPA’s efforts to determine assessments are appropriate for a food- exposure. However, the following uses which chemicals have a common use pesticide based on the weight of the that could result in residential mechanism of toxicity and to evaluate evidence from cancer studies and other exposures are pending registration and the cumulative effects of such relevant data. Cancer risk is quantified are included in this risk assessment: chemicals, see EPA’s Web site at using a linear or nonlinear approach. If Turf, ornamental landscape plantings, http://www.epa.gov/pesticides/ sufficient information on the ornamental plants, trees and vines in cumulative. carcinogenic mode of action is available, nurseries, residential fruit trees, nut D. Safety Factor for Infants and a threshold or non-linear approach is trees, caneberries, and orchids. Children used and a cancer RfD is calculated Residential handler exposures are based on an earlier noncancer key event. expected to be short-term (1 to 30 days) 1. In general. Section 408(b)(2)(C) of If carcinogenic mode of action data are via either the dermal or inhalation FFDCA provides that EPA shall apply not available, or if the mode of action routes of exposures. Since a quantitative an additional tenfold (10X) margin of data determines a mutagenic mode of dermal risk assessment is not needed for safety for infants and children in the action, a default linear cancer slope hexythiazox; MOEs were calculated for case of threshold effects to account for factor approach is utilized. Based on the the inhalation route of exposure only. prenatal and postnatal toxicity and the data summarized in Unit III.A of the Both adults and children may be completeness of the database on toxicity Federal Register of March 17, 2010 (75 exposed to hexythiazox residues from and exposure unless EPA determines FR 12691) (FRL–8813–7), EPA has contact with treated lawns or treated based on reliable data that a different concluded that a nonlinear RfD residential plants. Post application margin of safety will be safe for infants approach is appropriate for assessing exposures are expected to be short-term and children. This additional margin of cancer risk to hexythiazox. Cancer risk (1 to 30 days) and intermediate-term safety is commonly referred to as the was assessed using the same exposure (1 to 6 months) in duration. Adult FQPA Safety Factor (SF). In applying estimates as discussed in Unit III.C.1.ii., postapplication exposures were not this provision, EPA either retains the chronic exposure. assessed since no quantitative dermal default value of 10X, or uses a different iv. Anticipated residue and percent risk assessment is needed for additional safety factor when reliable crop treated (PCT) information. EPA did hexythiazox and inhalation exposures data available to EPA support the choice not use anticipated residue and/or PCT are typically negligible in outdoor of a different factor. information in the dietary assessment settings. The exposure assessment for 2. Prenatal and postnatal sensitivity. for hexythiazox. Tolerance level children included incidental oral The prenatal and postnatal toxicology residues and/or 100 PCT were assumed exposure resulting from transfer of data base indicates no increased for all food commodities. residues from the hands or objects to the susceptibility of rats or rabbits to in 2. Dietary exposure from drinking mouth, and from incidental ingestion of utero and/or postnatal exposure to water. The Agency used screening level soil. hexythiazox.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77707

3. Conclusion. EPA has determined lifetime probability of acquiring cancer water, and residential exposures result that reliable data show the safety of given the estimated aggregate exposure. in aggregate MOEs of 14,000 for adults infants and children would be Short-, intermediate-, and chronic-term and 2,100 for children. Because EPA’s adequately protected if the FQPA SF risks are evaluated by comparing the level of concern for hexythiazox is a were reduced to 1X. That decision is estimated aggregate food, water, and MOE of 100 or below, these MOEs are based on the following findings: residential exposure to the appropriate not of concern. i. The toxicity database for PODs to ensure that an adequate MOE 5. Aggregate cancer risk for U.S. hexythiazox is complete with the exists. population. As discussed in Unit III. exception of certain new generic testing 1. Acute risk. An acute aggregate risk C.1.iii., EPA concluded that regulation requirements under revised 40 CFR part assessment takes into account acute based on the chronic reference dose will 158, including acute and subchronic exposure estimates from dietary be protective for both chronic and neurotoxicity studies and an consumption of food and drinking carcinogenic risks. As noted in this unit immunotoxicity study. However, the water. No adverse effect resulting from there are no chronic risks of concern. toxicology database does not show any a single oral exposure was identified 6. Determination of safety. Based on evidence of treatment-related effects on and no acute dietary endpoint was these risk assessments, EPA concludes the nervous system or the immune selected. Therefore, hexythiazox is not that there is a reasonable certainty that system. The overall weight of evidence expected to pose an acute risk. no harm will result to the general suggests that this chemical does not 2. Chronic risk. Using the exposure population, or to infants and children directly target either system. Although assumptions described in this unit for from aggregate exposure to hexythiazox acute and subchronic neurotoxicity chronic exposure, EPA has concluded residues. studies and an immunotoxicity study that chronic exposure to hexythiazox are required as a part of new data from food and water will utilize 51% of IV. Other Considerations requirements in 40 CFR part 158 for the cPAD for children 1 to 2 years of A. Analytical Enforcement Methodology conventional pesticide registrations, the age, the population group receiving the Agency does not believe that conducting greatest exposure. Based on the Adequate enforcement methodology these studies will result in a lower POD explanation in Unit III.C.3., regarding (high performance liquid than any currently used for risk residential use patterns, chronic chromatography method with ultra assessment, and therefore, a database residential exposure to residues of violet detection (HPLC/UV) is available to enforce the tolerance expression. uncertainty factor (UFDB) is not needed hexythiazox is not expected. to account for the lack of these studies. 3. Short-term risk. Short-term The method may be requested from: ii. There is no indication that aggregate exposure takes into account Chief, Analytical Chemistry Branch, hexythiazox is a neurotoxic chemical short-term residential exposure plus Environmental Science Center, 701 and there is no need for a chronic exposure to food and water Mapes Rd., Ft. Meade, MD 20755–5350; developmental neurotoxicity study or (considered to be a background telephone number: (410) 305–2905; additional UFs to account for exposure level). email address: neurotoxicity. There are potential short-term [email protected]. iii. There is no evidence that exposures from the pending residential B. International Residue Limits hexythiazox results in increased uses for hexythiazox. The Agency has susceptibility in in utero rats or rabbits determined that it is appropriate to In making its tolerance decisions, EPA in the prenatal developmental studies or aggregate chronic exposure through food seeks to harmonize U.S. tolerances with in young rats in the 2-generation and water with short-term residential international standards whenever reproduction study. exposures to hexythiazox. possible, consistent with U.S. food iv. There are no residual uncertainties Using the exposure assumptions safety standards and agricultural identified in the exposure databases. described in this unit for short-term practices. EPA considers the The dietary food exposure assessments exposures, EPA has concluded the international maximum residue limits were performed based on 100 PCT and combined short-term food, water, and (MRLs) established by the Codex tolerance-level residues. The dietary residential exposures result in aggregate Alimentarius Commission (Codex), as risk assessment is highly conservative MOEs of 14,000 for adults and 1,900 for required by FFDCA section 408(b)(4). and not expected to underestimate risk. children. Because EPA’s level of The Codex Alimentarius is a joint U.N. EPA made conservative (protective) concern for hexythiazox is a MOE of 100 Food and Agriculture Organization/ assumptions in the ground and surface or below, these MOEs are not of World Health Organization food water modeling used to assess exposure concern. standards program, and it is recognized to hexythiazox in drinking water. EPA 4. Intermediate-term risk. as an international food safety used similarly conservative assumptions Intermediate-term aggregate exposure standards-setting organization in trade to assess postapplication exposure of takes into account intermediate-term agreements to which the United States children as well as incidental oral residential exposure plus chronic is a party. EPA may establish a tolerance exposure of toddlers. These assessments exposure to food and water (considered that is different from a Codex MRL; will not underestimate the exposure and to be a background exposure level). however, FFDCA section 408(b)(4) risks posed by hexythiazox. There are potential intermediate-term requires that EPA explain the reasons exposures from the pending residential for departing from the Codex level. E. Aggregate Risks and Determination of uses for hexythiazox. The Agency has Codex MRLs are established for Safety determined that it is appropriate to residues of hexythiazox on ‘‘edible offal EPA determines whether acute and aggregate chronic exposure through food (mammalian)’’ and ‘‘poultry, edible chronic dietary pesticide exposures are and water with intermediate-term offal’’ at 0.05 ppm. A Codex MRL is safe by comparing aggregate exposure residential exposures to hexythiazox. established for tomatoes at 0.1 ppm. No estimates to the acute population Using the exposure assumptions other Codex, Canadian or Mexican adjusted dose (aPAD) and chronic described in this unit for intermediate- MRLs are established for the population adjusted dose (cPAD). For term exposures, EPA has concluded that commodities that are the subject of linear cancer risks, EPA calculates the the combined intermediate-term food, these petitions. Codex and U.S.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77708 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

tolerance expressions are harmonized at Distribution, or Use (66 FR 28355, May the Congress and to the Comptroller this time. Since the maximum residue 22, 2001) or Executive Order 13045, General of the United States. EPA will seen in the U.S. green house tomato data entitled Protection of Children from submit a report containing this rule and is 0.34 ppm, harmonizing with the Environmental Health Risks and Safety other required information to the U.S. Codex MRL of 0.1 ppm at this time is Risks (62 FR 19885, April 23, 1997). Senate, the U.S. House of not possible as over tolerance residues This final rule does not contain any Representatives, and the Comptroller in the U.S. could result if the Codex information collections subject to OMB General of the United States prior to MRL were adopted. approval under the Paperwork publication of this final rule in the Reduction Act (PRA), 44 U.S.C. 3501 et Federal Register. This final rule is not C. Revisions to Petitioned-For seq., nor does it require any special a ‘‘major rule’’ as defined by 5 U.S.C. Tolerances considerations under Executive Order 804(2). Based on EPA’s review, Gowan 12898, entitled Federal Actions to List of Subjects in 40 CFR Part 180 Company revised their petition (PP Address Environmental Justice in 0F7773) by increasing the proposed Minority Populations and Low-Income Environmental protection, tolerance for corn, field, stover to 7.0 Populations (59 FR 7629, February 16, Administrative practice and procedure, ppm; by requesting an increase in the 1994). Agricultural commodities, Pesticides established tolerances for cattle, meat Since tolerances and exemptions that and pests, Reporting and recordkeeping byproducts; goat, meat byproducts; hog, are established on the basis of a petition requirements. meat byproducts; horse, meat under section 408(d) of FFDCA, such as Dated: November 23, 2011. byproducts; and sheep, meat byproducts the tolerances in this final rule, do not Lois Rossi, to 0.5 ppm; and by requesting a decrease require the issuance of a proposed rule, Director, Registration Division, Office of in the established tolerance for corn, the requirements of the Regulatory Pesticide Programs. field, forage to 3.0 ppm. The Agency Flexibility Act (RFA) (5 U.S.C. 601 et concluded that based on the residue seq.) do not apply. Therefore, 40 CFR chapter I is data, these changes are required to This final rule directly regulates amended as follows: support the amended and new uses. The growers, food processors, food handlers, PART 180—[AMENDED] decrease in the field corn forage and food retailers, not States or tribes, tolerance and the increase in the stover nor does this action alter the ■ 1. The authority citation for part 180 tolerance were recommended by the relationships or distribution of power continues to read as follows: Agency as a result of analyzing the and responsibilities established by Authority: 21 U.S.C. 321(q), 346a and 371. submitted field trial data for these Congress in the preemption provisions ■ commodities using the OECD MRL of section 408(n)(4) of FFDCA. As such, 2. Amend § 180.448 as follows: ■ i. In the table to paragraph (a), revise (Maximum Residue Limit) calculator. the Agency has determined that this the entries for ‘‘cattle, meat The increase in the meat byproduct action will not have a substantial direct byproducts;’’ ‘‘goat, meat by products;’’ tolerances is driven by the anticipated effect on States or tribal governments, ‘‘hog, meat byproducts;’’ ‘‘horse, meat increase in residues in field corn animal on the relationship between the national byproducts;’’ and ‘‘sheep, meat feed items as a result of the revised use government and the States or tribal governments, or on the distribution of byproducts.’’ pattern for hexythiazox on field corn ■ power and responsibilities among the ii. In the table to paragraph (a), add and was set numerically to be entries for ‘‘corn, field, forage;’’ ‘‘corn, harmonized with the current Codex various levels of government or between the Federal Government and Indian field, grain;’’ ‘‘corn, field, stover;’’ MRL for meat byproducts. ‘‘grain, aspirated fractions;’’ and EPA is also removing expired Section tribes. Thus, the Agency has determined that Executive Order 13132, entitled ‘‘tomato.’’ 18 tolerances for corn, field, forage; ■ iii. In the table to paragraph (b), Federalism (64 FR 43255, August 10, corn, field, grain; and corn, field, stover. remove the entries for ‘‘corn, field, 1999) and Executive Order 13175, forage;’’ ‘‘corn, field, grain;’’ and ‘‘corn, V. Conclusion entitled Consultation and Coordination field, stover.’’ Therefore, tolerances are established with Indian Tribal Governments (65 FR The added and revised text reads as for residues of hexythiazox, including 67249, November 9, 2000) do not apply follows: its metabolites containing the (4- to this final rule. In addition, this final chlorophenyl)-4-methyl-2-oxo-3- rule does not impose any enforceable § 180.448 Hexythiazox; tolerances for thiazolidine moiety, as requested in the duty or contain any unfunded mandate residues. revised petitions. as described under Title II of the (a) * * * Unfunded Mandates Reform Act of 1995 VI. Statutory and Executive Order Parts per Reviews (UMRA) (Pub. L. 104–4). Commodity This action does not involve any million This final rule establishes tolerances technical standards that would require under section 408(d) of FFDCA in Agency consideration of voluntary ***** response to petitions submitted to the consensus standards pursuant to section Cattle, meat byproducts ...... 0 .05 Agency. The Office of Management and 12(d) of the National Technology Budget (OMB) has exempted these types Transfer and Advancement Act of 1995 ***** of actions from review under Executive (NTTAA), Public Law 104–113, section Corn, field, forage ...... 3.0 Order 12866, entitled Regulatory 12(d) (15 U.S.C. 272 note). Corn, field, grain ...... 0.02 Planning and Review (58 FR 51735, Corn, field, stover ...... 7 .0 October 4, 1993). Because this final rule VII. Congressional Review Act ***** has been exempted from review under The Congressional Review Act, 5 Goat, meat byproducts ...... 0.05 Executive Order 12866, this final rule is U.S.C. 801 et seq., generally provides Grain, aspirated fractions ...... 0 .50 not subject to Executive Order 13211, that before a rule may take effect, the entitled Actions Concerning Regulations agency promulgating the rule must ***** That Significantly Affect Energy Supply, submit a rule report to each House of Hog, meat byproducts ...... 0 .05

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77709

Parts per Certain other material, such as C. Can I File an objection or hearing Commodity million copyrighted material, is not placed on request? the Internet and will be publicly Under FFDCA section 408(g), 21 available only in hard copy form. U.S.C. 346a, any person may file an ***** Publicly available docket materials are Horse, meat byproducts ...... 0 .05 objection to any aspect of this regulation available in the electronic docket at and may also request a hearing on those ***** http://www.regulations.gov, or, if only objections. You must file your objection Sheep, meat byproducts ...... 0 .05 available in hard copy, at the OPP or request a hearing on this regulation Regulatory Public Docket in Rm. S– in accordance with the instructions ***** 4400, One Potomac Yard (South Bldg.), Tomato ...... 0.50 provided in 40 CFR part 178. To ensure 2777 S. Crystal Dr., Arlington, VA. The proper receipt by EPA, you must Docket Facility is open from 8:30 a.m. * * * * * identify docket ID number EPA–HQ– to 4 p.m., Monday through Friday, OPP–2011–0732 in the subject line on [FR Doc. 2011–32086 Filed 12–13–11; 8:45 am] excluding legal holidays. The Docket BILLING CODE 6560–50–P the first page of your submission. All Facility telephone number is (703) 305– objections and requests for a hearing 5805. must be in writing, and must be ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: received by the Hearing Clerk on or AGENCY Elizabeth Fertich, Registration Division before February 13, 2012. Addresses for (7505P), Office of Pesticide Programs, mail and hand delivery of objections 40 CFR Part 180 Environmental Protection Agency, 1200 and hearing requests are provided in 40 [EPA–HQ–OPP–2011–0732; FRL–9327–6] Pennsylvania Ave. NW., Washington, CFR 178.25(b). DC 20460–0001; telephone number: In addition to filing an objection or Butyl acrylate-methacrylic acid-styrene (703) 347–8560; email address: fertich. hearing request with the Hearing Clerk polymer; Tolerance Exemption [email protected]. as described in 40 CFR part 178, please SUPPLEMENTARY INFORMATION: submit a copy of the filing that does not AGENCY: Environmental Protection contain any CBI for inclusion in the Agency (EPA). I. General Information public docket. Information not marked ACTION: Final rule. A. Does this action apply to me? confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA SUMMARY: This regulation establishes an You may be potentially affected by without prior notice. Submit a copy of exemption from the requirement of a this action if you are an agricultural your non-CBI objection or hearing tolerance for residues of 2-Propenoic producer, food manufacturer, or request, identified by docket ID number acid, 2-methyl-, polymer with butyl 2- pesticide manufacturer. Potentially EPA–HQ–OPP–2011–0732, by one of propenoate and ethenylbenzene (CAS affected entities may include, but are the following methods. Reg. No. 25036–16–2); also known as not limited to: • Federal eRulemaking Portal: http:// butyl acrylate-methacrylic acid-styrene • www.regulations.gov. Follow the on-line polymer when used as an inert Crop production (NAICS code 111). • instructions for submitting comments. ingredient in a pesticide chemical Animal production (NAICS code • 112). Mail: Office of Pesticide Programs formulation. Momentive Performance (OPP) Regulatory Public Docket (7502P), • Food manufacturing (NAICS code Materials submitted a petition to EPA Environmental Protection Agency, 1200 under the Federal Food, Drug, and 311). • Pennsylvania Ave. NW., Washington, Cosmetic Act (FFDCA), requesting an Pesticide manufacturing (NAICS DC 20460–0001. exemption from the requirement of a code 32532). • Delivery: OPP Regulatory Public tolerance. This regulation eliminates the This listing is not intended to be Docket (7502P), Environmental need to establish a maximum exhaustive, but rather provides a guide Protection Agency, Rm. S–4400, One permissible level for residues of 2- for readers regarding entities likely to be Potomac Yard (South Bldg.), 2777 S. Propenoic acid, 2-methyl-, polymer with affected by this action. Other types of Crystal Dr., Arlington, VA. Deliveries butyl 2-propenoate and ethenylbenzene entities not listed in this unit could also are only accepted during the Docket on food or feed commodities. be affected. The North American Facility’s normal hours of operation DATES: This regulation is effective Industrial Classification System (8:30 a.m. to 4 p.m., Monday through December 14, 2011. Objections and (NAICS) codes have been provided to Friday, excluding legal holidays). requests for hearings must be received assist you and others in determining Special arrangements should be made on or before February 13, 2012, and whether this action might apply to for deliveries of boxed information. The must be filed in accordance with the certain entities. If you have any Docket Facility telephone number is instructions provided in 40 CFR part questions regarding the applicability of (703) 305–5805. 178 (see also Unit I.C. of the this action to a particular entity, consult SUPPLEMENTARY INFORMATION). the person listed under FOR FURTHER II. Background and Statutory Findings ADDRESSES: EPA has established a INFORMATION CONTACT. In the Federal Register of October 5, docket for this action under docket B. how can I get electronic access to 2011 (76 FR 61647) (FRL–8890–5), EPA identification (ID) number EPA–HQ– other related information? issued a notice pursuant to section 408 OPP–2011–0732. All documents in the of FFDCA, 21 U.S.C. 346a, announcing docket are listed in the docket index You may access a frequently updated the receipt of a pesticide petition (PP available at http://www.regulations.gov. electronic version of 40 CFR part 180 1E7909) filed by Momentive Although listed in the index, some through the Government Printing Performance Materials, 3500 South State information is not publicly available, Office’s e-CFR site at http://ecfr. Route 2; Friendly, WV 26146. The e.g., Confidential Business Information gpoaccess.gov/cgi/t/text/text- petition requested that 40 CFR 180.960 (CBI) or other information whose idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ be amended by establishing an disclosure is restricted by statute. 40tab_02.tpl. exemption from the requirement of a

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77710 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

tolerance for residues of 2-Propenoic exposures that occur as a result of MW 500 and less than 5% oligomeric acid, 2-methyl-, polymer with butyl 2- pesticide use in residential settings. If material below MW 1,000. propenoate and ethenylbenzene; CAS EPA is able to determine that a finite Thus, butyl acrylate-methacrylic acid- Reg. No. 25036–16–2. That notice tolerance is not necessary to ensure that styrene polymer meets the criteria for a included a summary of the petition there is a reasonable certainty that no polymer to be considered low risk under prepared by the petitioner and solicited harm will result from aggregate 40 CFR 723.250. Based on its comments on the petitioner’s request. exposure to the inert ingredient, an conformance to the criteria in this unit, The Agency received one comment from exemption from the requirement of a no mammalian toxicity is anticipated a private citizen who opposed the tolerance may be established. from dietary, inhalation, or dermal Consistent with FFDCA section authorization to sell any pesticide that exposure to butyl acrylate-methacrylic 408(b)(2)(D), EPA has reviewed the leaves a residue on food. The Agency acid-styrene polymer. understands the commenter’s concerns available scientific data and other and recognizes that some individuals relevant information in support of this IV. Aggregate Exposures believe that no residue of pesticides action and considered its validity, should be allowed. However, under the completeness and reliability and the For the purposes of assessing existing legal framework provided by relationship of this information to potential exposure under this section 408 of FFDCA EPA is authorized human risk. EPA has also considered exemption, EPA considered that butyl to establish pesticide tolerances or available information concerning the acrylate-methacrylic acid-styrene exemptions where persons seeking such variability of the sensitivities of major polymer could be present in all raw and tolerances or exemptions have identifiable subgroups of consumers, processed agricultural commodities and demonstrated that the pesticide meets including infants and children. In the drinking water, and that non- the safety standard imposed by the case of certain chemical substances that occupational non-dietary exposure was statute. are defined as polymers, the Agency has possible. The number average MW of Section 408(c)(2)(A)(i) of FFDCA established a set of criteria to identify butyl acrylate-methacrylic acid-styrene allows EPA to establish an exemption categories of polymers expected to polymer is 17,000 daltons. Generally, a from the requirement for a tolerance (the present minimal or no risk. The polymer of this size would be poorly legal limit for a pesticide chemical definition of a polymer is given in 40 absorbed through the intact residue in or on a food) only if EPA CFR 723.250(b) and the exclusion gastrointestinal tract or through intact determines that the exemption is ‘‘safe.’’ criteria for identifying these low-risk human skin. Since butyl acrylate- Section 408(c)(2)(A)(ii) of FFDCA polymers are described in 40 CFR methacrylic acid-styrene polymer defines ‘‘safe’’ to mean that ‘‘there is a 723.250(d). Butyl acrylate-methacrylic conform to the criteria that identify a reasonable certainty that no harm will acid-styrene polymer conforms to the low-risk polymer, there are no concerns result from aggregate exposure to the definition of a polymer given in 40 CFR for risks associated with any potential pesticide chemical residue, including 723.250(b) and meets the following exposure scenarios that are reasonably all anticipated dietary exposures and all criteria that are used to identify low-risk foreseeable. The Agency has determined other exposures for which there is polymers. that a tolerance is not necessary to reliable information.’’ This includes 1. The polymer is not a cationic protect the public health. exposure through drinking water and polymer nor is it reasonably anticipated use in residential settings, but does not V. Cumulative Effects From Substances to become a cationic polymer in a With a Common Mechanism of Toxicity include occupational exposure. Section natural aquatic environment. 408(b)(2)(C) of FFDCA requires EPA to 2. The polymer does contain as an Section 408(b)(2)(D)(v) of FFDCA give special consideration to exposure integral part of its composition the requires that, when considering whether of infants and children to the pesticide atomic elements carbon, hydrogen, and to establish, modify, or revoke a chemical residue in establishing an oxygen. tolerance, the Agency consider exemption from the requirement of a 3. The polymer does not contain as an ‘‘available information’’ concerning the tolerance and to ‘‘ensure that there is a integral part of its composition, except cumulative effects of a particular reasonable certainty that no harm will as impurities, any element other than pesticide’s residues and ‘‘other result to infants and children from those listed in 40 CFR 723.250(d)(2)(ii). substances that have a common aggregate exposure to the pesticide 4. The polymer is neither designed mechanism of toxicity.’’ chemical residue * * *’’ and specifies nor can it be reasonably anticipated to factors EPA is to consider in substantially degrade, decompose, or EPA has not found butyl acrylate- establishing an exemption. depolymerize. methacrylic acid-styrene polymer to 5. The polymer is manufactured or share a common mechanism of toxicity III. Risk Assessment and Statutory imported from monomers and/or with any other substances, and butyl Findings reactants that are already included on acrylate-methacrylic acid-styrene EPA establishes exemptions from the the TSCA Chemical Substance polymer does not appear to produce a requirement of a tolerance only in those Inventory or manufactured under an toxic metabolite produced by other cases where it can be shown that the applicable TSCA section 5 exemption. substances. For the purposes of this risks from aggregate exposure to 6. The polymer is not a water tolerance action, therefore, EPA has pesticide chemical residues under absorbing polymer with a number assumed that butyl acrylate-methacrylic reasonably foreseeable circumstances average molecular weight (MW) greater acid-styrene polymer does not have a will pose no appreciable risks to human than or equal to 10,000 daltons. common mechanism of toxicity with health. In order to determine the risks Additionally, the polymer also meets other substances. For information from aggregate exposure to pesticide as required the following exemption regarding EPA’s efforts to determine inert ingredients, the Agency considers criteria specified in 40 CFR 723.250(e). which chemicals have a common the toxicity of the inert in conjunction 7. The polymer’s number average MW mechanism of toxicity and to evaluate with possible exposure to residues of of 17,000 is greater than or equal to the cumulative effects of such the inert ingredient through food, 10,000 daltons. The polymer contains chemicals, see EPA’s Web site at http:// drinking water, and through other less than 2% oligomeric material below www.epa.gov/pesticides/cumulative.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77711

VI. Additional Safety Factor for the the requirement of a tolerance will be 9, 2000) do not apply to this final rule. Protection of Infants and Children safe. In addition, this final rule does not impose any enforceable duty or contain X. Statutory and Executive Order Section 408(b)(2)(C) of FFDCA any unfunded mandate as described Reviews provides that EPA shall apply an under Title II of the Unfunded Mandates additional tenfold margin of safety for This final rule establishes a tolerance Reform Act of 1995 (UMRA) (Pub. L. infants and children in the case of under section 408(d) of FFDCA in 104–4). threshold effects to account for prenatal response to a petition submitted to the Although this action does not require and postnatal toxicity and the Agency. The Office of Management and any special considerations under completeness of the data base unless Budget (OMB) has exempted these rules Executive Order 12898, entitled Federal EPA concludes that a different margin of from review under Executive Order Actions to Address Environmental safety will be safe for infants and 12866, entitled Regulatory Planning and Justice in Minority Populations and children. Due to the expected low Review (58 FR 51735, October 4, 1993). Low-Income Populations (59 FR 7629, toxicity of butyl acrylate-methacrylic Because this final rule has been February 16, 1994), EPA seeks to acid-styrene polymer, EPA has not used exempted from review under Executive achieve environmental justice, the fair a safety factor analysis to assess the risk. Order 12866, this final rule is not treatment and meaningful involvement For the same reasons the additional subject to Executive Order 13211, of any group, including minority and/or tenfold safety factor is unnecessary. entitled Actions Concerning Regulations low-income populations, in the VII. Determination of Safety That Significantly Affect Energy Supply, development, implementation, and Distribution, or Use (66 FR 28355, May enforcement of environmental laws, Based on the conformance to the 22, 2001) or Executive Order 13045, regulations, and policies. As such, to the criteria used to identify a low-risk entitled Protection of Children from extent that information is publicly polymer, EPA concludes that there is a Environmental Health Risks and Safety available or was submitted in comments reasonable certainty of no harm to the Risks (62 FR 19885, April 23, 1997). to EPA, the Agency considered whether U.S. population, including infants and This final rule does not contain any groups or segments of the population, as children, from aggregate exposure to information collections subject to OMB a result of their location, cultural residues of butyl acrylate-methacrylic approval under the Paperwork practices, or other factors, may have acid-styrene polymer. Reduction Act (PRA), 44 U.S.C. 3501 et atypical or disproportionately high and seq., nor does it involve any technical VIII. Other Considerations adverse human health impacts or standards that would require Agency environmental effects from exposure to A. Analytical Enforcement Methodology consideration of voluntary consensus the pesticide discussed in this standards pursuant to section 12(d) of An analytical method is not required document, compared to the general the National Technology Transfer and population. for enforcement purposes since the Advancement Act of 1995 (NTTAA), Agency is establishing an exemption Public Law 104–113, section 12(d) (15 XI. Congressional Review Act from the requirement of a tolerance U.S.C. 272 note). The Congressional Review Act, 5 without any numerical limitation. Since tolerances and exemptions that U.S.C. 801 et seq., generally provides B. International Residue Limits are established on the basis of a petition that before a rule may take effect, the under section 408(d) of FFDCA, such as agency promulgating the rule must In making its tolerance decisions, EPA the tolerance in this final rule, do not submit a rule report to each House of seeks to harmonize U.S. tolerances with require the issuance of a proposed rule, the Congress and to the Comptroller international standards whenever the requirements of the Regulatory General of the United States. EPA will possible, consistent with U.S. food Flexibility Act (RFA) (5 U.S.C. 601 et submit a report containing this rule and safety standards and agricultural seq.) do not apply. other required information to the U.S. practices. EPA considers the This final rule directly regulates Senate, the U.S. House of international maximum residue limits growers, food processors, food handlers, Representatives, and the Comptroller (MRLs) established by the Codex and food retailers, not States or tribes, General of the United States prior to Alimentarius Commission (Codex), as nor does this action alter the publication of this rule in the Federal required by FFDCA section 408(b)(4). relationships or distribution of power Register. This rule is not a ‘‘major rule’’ The Codex Alimentarius is a joint U.N. and responsibilities established by as defined by 5 U.S.C. 804(2). Food and Agriculture Organization/ Congress in the preemption provisions List of Subjects in 40 CFR Part 180 World Health Organization food of section 408(n)(4) of FFDCA. As such, standards program, and it is recognized the Agency has determined that this Environmental protection, as an international food safety action will not have a substantial direct Administrative practice and procedure, standards-setting organization in trade effect on States or tribal governments, Agricultural commodities, Pesticides agreements to which the United States on the relationship between the national and pests, Reporting and recordkeeping is a party. EPA may establish a tolerance government and the States or tribal requirements. that is different from a Codex MRL; governments, or on the distribution of Dated: November 29, 2011. however, FFDCA section 408(b)(4) power and responsibilities among the Lois Rossi, requires that EPA explain the reasons various levels of government or between Director, Registration Division, Office of for departing from the Codex level. the Federal Government and Indian Pesticide Programs. The Codex has not established a MRL tribes, or otherwise have any unique Therefore, 40 CFR chapter I is for butyl acrylate-methacrylic acid- impacts on local governments. Thus, the amended as follows: styrene polymer. Agency has determined that Executive Order 13132, entitled Federalism (64 FR PART 180—[AMENDED] IX. Conclusion 43255, August 10, 1999) and Executive Accordingly, EPA finds that Order 13175, entitled Consultation and ■ 1. The authority citation for part 180 exempting residues of butyl acrylate- Coordination with Indian Tribal continues to read as follows: methacrylic acid-styrene polymer from Governments (65 FR 67249, November Authority: 21 U.S.C. 321(q), 346a and 371.

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77712 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

■ 2. In § 180.960, the table is amended • Federal eRulemaking Portal: http:// A. Submitting Comments by adding alphabetically the following www.regulations.gov. If you submit a comment, please polymers to read as follows: • Fax: (202) 493–2251. include the docket number for this § 180.960 Polymers; exemptions from the • Mail: Docket Management Facility rulemaking (USCG–2011–0363), requirement of a tolerance. (M–30), U.S. Department of indicate the specific section of this * * * * * Transportation, West Building Ground document to which each comment Floor, Room W12–140, 1200 New Jersey applies, and provide a reason for each Polymer CAS No. Avenue SE., Washington, DC 20590– suggestion or recommendation. You 0001. may submit your comments and material online, or by fax, mail or hand • Hand delivery: Same as mail ***** delivery, but please use only one of address above, between 9 a.m. and 2-Propenoic acid, 2-methyl-, these means. We recommend that you 5 p.m., Monday through Friday, except polymer with butyl 2- include your name and a mailing propenoate and Federal holidays. The telephone number address, an email address, or a phone ethenylbenzene, minimum is (202) 366–9329. number average molecular number in the body of your document weight (in amu), 17,000 ...... 25036–16–2 To avoid duplication, please use only so that we can contact you if we have one of these four methods. See the questions regarding your submission. ***** ‘‘Public Participation and Request for To submit your comment online, go to Comments’’ portion of the http://www.regulations.gov and insert [FR Doc. 2011–32072 Filed 12–13–11; 8:45 am] SUPPLEMENTARY INFORMATION section ‘‘USCG–2011–0363’’ in the ‘‘Keyword’’ BILLING CODE 6560–50–P below for instructions on submitting box. Click ‘‘Search’’ then click on the comments. balloon shape in the ‘‘Actions’’ column. If you submit your comments by mail or FOR FURTHER INFORMATION CONTACT: If hand delivery, submit them in an DEPARTMENT OF HOMELAND you have questions on this rule, email unbound format, no larger than 81⁄2 by SECURITY or call LT Douglas Tindall, Coast Guard; 11 inches, suitable for copying and telephone (202) 372–1411, email Coast Guard electronic filing. If you submit them by [email protected]. If you have mail and would like to know that they questions on viewing or submitting 46 CFR Parts 2, 24, 30, 70, 90, 91, and reached the Facility, please enclose a material to the docket, call Renee V. 188 stamped, self-addressed postcard or Wright, Program Manager, Docket envelope. We will consider all [Docket No. USCG–2011–0363] Operations, telephone (202) 366–9826. comments and material received during RIN 1625–AB71 SUPPLEMENTARY INFORMATION: the comment period. Seagoing Barges Table of Contents B. Viewing Comments and Documents I. Public Participation and Request for To view comments, as well as AGENCY: Coast Guard, DHS. Comments documents mentioned in this preamble ACTION: Direct final rule; request for A. Submitting Comments as being available in the docket, go to comments. B. Viewing Comments and Documents http://www.regulations.gov, click on the C. Privacy Act ‘‘read comments’’ box, which will then SUMMARY: By this direct final rule, the D. Public Meeting become highlighted in blue. In the Coast Guard is revising regulations for II. Abbreviations ‘‘Keyword’’ box insert ‘‘USCG–2011– the inspection and certification of III. Regulatory Information 0363’’ and click ‘‘Search.’’ Click the seagoing barges to align with the IV. Basis and Purpose ‘‘Open Docket Folder’’ in the ‘‘Actions’’ language of the applicable statutes. The V. Discussion of the Rule VI. Regulatory Analyses column. If you do not have access to the statutory language exempts certain A. Regulatory Planning and Review Internet, you may also view the docket seagoing barges from inspection. B. Small Entities online by visiting the Docket Through this rule, we seek to make the C. Assistance for Small Entities Management Facility in Room W12–140 language of the regulation consistent D. Collection of Information on the ground floor of the Department with the language of the statute. E. Federalism of Transportation West Building, 1200 DATES: This rule is effective April 12, F. Unfunded Mandates Reform Act G. Taking of Private Property New Jersey Avenue SE., Washington, 2012, unless an adverse comment, or DC 20590, between 9 a.m. and 5 p.m., notice of intent to submit an adverse H. Civil Justice Reform I. Protection of Children Monday through Friday, except Federal comment, is either submitted to our J. Indian Tribal Governments holidays. We have an agreement with online docket via http:// K. Energy Effects the Department of Transportation to use www.regulations.gov on or before L. Technical Standards the Docket Management Facility. February 13, 2012 or reaches the Docket M. Environment Management Facility by that date. If an C. Privacy Act I. Public Participation and Request for adverse comment, or notice of intent to Comments Anyone can search the electronic submit an adverse comment, is received form of comments received into any of by February 13, 2012, we will withdraw We encourage you to participate in our dockets by the name of the this direct final rule and publish a this rulemaking by submitting individual submitting the comment (or timely notice of withdrawal in the comments and related materials. All signing the comment, if submitted on Federal Register. comments received will be posted, behalf of an association, business, labor ADDRESSES: You may submit comments without change, to http:// union, etc.). You may review a Privacy identified by docket number USCG– www.regulations.gov and will include Act notice regarding our public dockets 2011–0363 using any one of the any personal information you have in the January 17, 2008, issue of the following methods: provided. Federal Register (73 FR 3316).

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77713

D. Public Meeting IV. Basis and Purpose permissible for seagoing barges that The Coast Guard has the delegated make voyages beyond the ‘‘Boundary We do not now plan to hold a public Line’’ vice the current language of ‘‘high meeting, but you may submit a request authority to carry out the responsibilities related to vessel seas or ocean.’’ for one to the docket using one of the Coast Guard regulations contained in methods specified under ADDRESSES. In inspection enumerated in 46 U.S.C. 3301–3318. See also 46 U.S.C. 2104; 46 CFR 90.05–25 dictates inspection your request, explain why you believe a and certification requirements for public meeting would be beneficial. If DHS Delegation 0170.1(92b). Pursuant to this authority, the Coast Guard has seagoing barges, but currently do not we determine that one would aid this reflect the exemptions enacted by Public rulemaking, we will hold one at a time issued regulations regarding inspection and certification of seagoing barges in Law 103–206. In this rule, the Coast and place announced by a later notice Guard modifies the language of 46 CFR in the Federal Register. 46 CFR parts 90 and 91. In 1983, sec. 2101(32), Public Law 98– 90.05–25 exempting seagoing barges II. Abbreviations 89, 97 Stat. 500 (46 U.S.C. 2101) from inspection and certification that redefined ‘‘seagoing barge’’ as a non are unmanned, and not carrying DHS Department of Homeland Security self-propelled vessel of at least 100 gross hazardous material as cargo, or a FR Federal Register flammable or combustible liquid, NEPA National Environmental Policy Act tons making voyages beyond the Boundary Line. Coast Guard regulations including oil, in bulk as enacted by of 1969 Public Law 103–206. NPRM Notice of Proposed Rulemaking at 46 CFR 91.01–10(c) do not reflect the language change and instead refer to To promote consistency and NTTAA National Technology Transfer and readability we are revising 46 CFR Advancement Act seagoing barges as vessels ‘‘on the high 91.01–10(c)(1)(i), 46 CFR 91.01– NVIC Navigation and Vessel Inspection seas or ocean.’’ The purpose of this rule 10(c)(1)(ii), and 46 CFR 91.01–10(c)(2) Circular is to change the language in 46 CFR to replace the language ‘‘non self- Pub. L. Public Law 91.01–10 from ‘‘on the high seas or propelled vessels of 100 gross tons and U.S.C. United States Code ocean’’ to ‘‘beyond the Boundary Line’’ to reflect the language of Public Law 98– over’’ with the term ‘‘seagoing barge’’ as III. Regulatory Information 89. enacted by Public Law 98–89 and In 1993, Congress exempted from contained in 46 CFR 90.10–36. We are publishing this direct final inspection seagoing barges that are The remaining revisions are intended rule under 33 CFR 1.05–55 because we unmanned and not carrying hazardous to make the language of the vessel do not expect an adverse comment. If no material as cargo, or carrying a inspection table published in the CFR adverse comment or notice of intent to flammable or combustible liquid, consistent with the language of the submit an adverse comment is received including oil, in bulk. See Coast Guard revised regulations. The vessel by February 13, 2012, this rule will Authorization Act of 1993, Public Law inspection table is a visual DATES become effective as stated in the 103–206, 107 Stat. 2419 (46 U.S.C. representation of when vessels must be section. In that case, approximately 30 3302(m)). In 1993, the Coast Guard inspected, and is organized by type of days before the effective date, we will stopped requiring the specified seagoing vessel, method of propulsion, cargo, publish a document in the Federal barges to be inspected to conform with mission, etc. This is a single table that Register stating that no adverse Public Law 103–206. However, the is published in the multiple sections of comment was received and confirming Coast Guard did not amend its the CFR that deal with inspection of that this rule will become effective as regulations to reflect the exemption. The vessels, namely 46 CFR parts 2, 24, 30, scheduled. However, if we receive an purpose of this rule is to change the 70, 90, and 188. We are revising the adverse comment or notice of intent to language concerning seagoing barges in vessel inspection table by removing submit an adverse comment, we will 46 CFR 90.05–25, 46 CFR 91.01–10, and from row 4, column 4 the text ‘‘All publish a document in the Federal the vessel inspection tables in 46 CFR seagoing barges except those covered by Register announcing the withdrawal of parts 2, 24, 30, 70, 90, and 188 to reflect columns 2 and 3.’’ and adding, in its all or part of this direct final rule. If an the exemption created by Public Law place, the text ‘‘All manned seagoing adverse comment applies only to part of 103–206. barges.’’ this rule (e.g., to an amendment, a paragraph, or a section) and it is V. Discussion of the Rule VI. Regulatory Analyses possible to remove that part without Coast Guard regulations contained in We developed this rule after defeating the purpose of this rule, we 46 CFR 91.01–10(c) provide for considering numerous statutes and may adopt, as final, those parts of this modification of the period of validity of executive orders related to rulemaking. rule on which no adverse comment was the certificate of inspection for seagoing Below we summarize our analyses received. We will withdraw the part of barges that: (1) Proceed on the high seas based on 14 of these statutes or this rule that was the subject of an or ocean for the sole purpose of executive orders. adverse comment. If we decide to changing place of employment; or (2) A. Regulatory Planning and Review proceed with a rulemaking following make rare or infrequent voyages on the receipt of an adverse comment, we will high seas or ocean and returning to the This rule is not a significant publish a separate notice of proposed port of departure. This language does regulatory action under section 3(f) of rulemaking (NPRM) and provide a new not reflect the language of Public Law Executive Order 12866, 58 FR 51735 opportunity for comment. 98–89 that redefined ‘‘seagoing barge’’ (Regulatory Planning and Review), as A comment is considered adverse if as a non self-propelled vessel of at least supplemented by Executive Order the comment explains why this rule or 100 gross tons making voyages beyond 13563, 76 FR 3821 (Improving a part of this rule would be the Boundary Line. In this rule, the Regulation and Regulatory Review), and inappropriate, including a challenge to Coast Guard changes the language of does not require an assessment of its underlying premise or approach, or &46 CFR 91.01–10(c)(1)(i) and (ii) to potential costs and benefits under would be ineffective or unacceptable clarify that modification of the period of section 6(a)(3) of Executive Order without a change. validity of the certificate of inspection is 12866. The Office of Management and

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77714 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Budget has not reviewed it under these As previously discussed, the purpose D. Collection of Information of this rule is to align the language Executive Orders. This rule calls for no new collection concerning seagoing barges in 46 CFR Sec. 2102 (32) of Public Law 98–89 of information under the Paperwork 90.05–25, 46 CFR 91.01–10, and the redefined ‘‘seagoing barge’’ to mean ‘‘a Reduction Act of 1995 (44 U.S.C. 3501– vessel inspection tables in 46 CFR parts non-self-propelled vessel of at least 100 3520). gross tons making voyages beyond the 2, 24, 30, 70, 90, and 188 with the Boundary Line.’’ language of Public Law 98–89 and E. Federalism Public Law 103–206. Public Law 98–89 Sec. 311 of Public Law 103–206 A rule has implications for federalism redefined ‘‘seagoing barge’’ as a non- amended 46 U.S.C. 3302 to exempt under Executive Order 13132, self-propelled vessel of at least 100 gross certain seagoing barges from inspection Federalism, if the rule has a substantial tons making voyages beyond the and certification when the barges are direct effect on State or local Boundary Line. Public Law 103–206 unmanned and not carrying hazardous governments and would either preempt exempted certain seagoing barges from material as cargo, or a flammable or State law or impose a substantial direct combustible liquid, including oil, in inspection and certification that are unmanned, and not carrying hazardous cost of compliance on them. We have bulk. This rule will align 46 CFR 90.05– analyzed this rule under that Order and 24, 46 CFR 91.01–10, and the vessel material as cargo, or carrying a flammable or combustible liquid, have determined that it does not have inspection table in 46 CFR 2, 24, 30, 70, implications for federalism. 90, and 188 with Public Law 98–89 and including oil, in bulk. Public Law 103–206. This rule does not result in additional F. Unfunded Mandates Reform Act Based on Public Law 98–89 and costs for small entities because the Coast Guard is aligning the text of the The Unfunded Mandates Reform Act Public Law 103–206, seagoing barges of 1995 (2 U.S.C. 1531–1538) requires that do not need inspection are those regulations with the current law. Since exempted barges have not been Federal agencies to assess the effects of that meet all of the following their discretionary regulatory actions. In characteristics: inspected for more than 10 years, this rule will impose no additional impacts particular, the Act addresses actions 1. Coastwise or oceans route as per that may result in the expenditure by a sec. 2102(32), Public Law 98–89; (costs or cost savings) to small entities. Therefore, the Coast Guard certifies State, local, or tribal government, in the 2. 100 gross tons or greater as per sec. under 5 U.S.C. 605(b) that this rule will aggregate, or by the private sector of 2102 (32), Public Law 98–89; not have a significant economic impact $100,000,000 (adjusted for inflation) or 3. Unmanned as per sec. 311, Public on a substantial number of small more in any one year. Though this rule Law 103–206; and entities. Comments submitted in will not result in such an expenditure, 4. Not carrying hazardous material as response to this finding will be we do discuss the effects of this rule cargo, or a flammable or combustible evaluated under the criteria in the elsewhere in this preamble. liquid, including oil, in bulk as per sec. ‘‘Regulatory Information’’ section of this G. Taking of Private Property 311, Public Law 103–206. preamble. Because the Coast Guard is aligning This rule will not cause a taking of the text of the regulations with the C. Assistance for Small Entities private property or otherwise have current inspections laws enacted in Under sec. 213(a) of the Contract with taking implications under Executive 1993, only barges that are manned, or America Act of 1996, Public Law104– Order 12630, Governmental Actions and carrying hazardous material as cargo or 121, 110 Stat. 847, we want to assist Interference With Constitutionally a flammable or combustible liquid, small entities in understanding this rule Protected Property Rights. including oil, in bulk are inspected. If so that they can better evaluate its owners or operators choose to effects on them and participate in the H. Civil Justice Reform voluntarily inspect barges that are rulemaking process. If the rule will This rule meets applicable standards exempt from inspection, these owners affect your small business, organization, in sections 3(a) and 3(b)(2) of Executive or operators do so voluntarily and or governmental jurisdiction and you Order 12988, Civil Justice Reform, to would voluntarily incur the cost. We have questions concerning its minimize litigation, eliminate estimate that there are no additional provisions or options for compliance, ambiguity, and reduce burden. costs to implement this rule. please consult LT Douglas Tindall at I. Protection of Children The benefit of this rule is in making (202) 372–1411 or by email at the CFR consistent with the current law. [email protected]. The Coast We have analyzed this rule under As this statutory change has been in Guard will not retaliate against small Executive Order 13045, Protection of effect for more than 18 years, we expect entities that question or complain about Children from Environmental Health this rule will not provide additional cost this rule or any policy or action of the Risks and Safety Risks. This rule is not savings to industry. Coast Guard. an economically significant rule and Small businesses may send comments does not create an environmental risk to B. Small Entities on the actions of Federal employees health or risk to safety that may Under the Regulatory Flexibility Act, who enforce, or otherwise determine disproportionately affect children. 5 U.S.C. 601–612, we have considered compliance with, Federal regulations to J. Indian Tribal Governments whether this rule would have a the Small Business and Agriculture significant economic impact on a Regulatory Enforcement Ombudsman This rule does not have tribal substantial number of small entities. and the Regional Small Business implications under Executive Order The term ‘‘small entities’’ comprises Regulatory Fairness Boards. The 13175, Consultation and Coordination small businesses, not-for-profit Ombudsman evaluates these actions with Indian Tribal Governments, organizations that are independently annually and rates each agency’s because it does not have a substantial owned and operated and are not responsiveness to small business. If you direct effect on one or more Indian dominant in their fields, and wish to comment on actions by tribes, on the relationship between the governmental jurisdictions with employees of the Coast Guard, call 1– Federal Government and Indian tribes, populations of less than 50,000. 888–REG–FAIR (1-(888) 734–3247). or on the distribution of power and

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77715

responsibilities between the Federal the docket where indicated under § 24.01–5 [Amended] Government and Indian tribes. ADDRESSES. ■ 4. In Table 24.01–5(a), row 4, column K. Energy Effects List of Subjects 4, of § 24.01–5, remove the text ‘‘All seagoing barges except those covered by We have analyzed this rule under 46 CFR Part 2 columns 2 and 3.’’ and add, in its place, Executive Order 13211, Actions the text ‘‘All manned seagoing barges.’’. Concerning Regulations That Marine safety, Reporting and recordkeeping requirements, Vessels. Significantly Affect Energy Supply, PART 30—GENERAL PROVISIONS Distribution, or Use. We have 46 CFR Part 24 determined that it is not a ‘‘significant ■ 5. The authority citation for part 30 energy action’’ under that order because Marine safety. continues to read as follows: it is not a ‘‘significant regulatory action’’ 46 CFR Part 30 Authority: 46 U.S.C. 2103, 3306, 3703; under Executive Order 12866 and is not Pub. L. 103–206, 107 Stat. 2439; 49 U.S.C. likely to have a significant adverse effect Cargo vessels, Foreign relations, 5103, 5106; Department of Homeland on the supply, distribution, or use of Hazardous materials transportation, Security Delegation No. 0170.1; Section energy. The Administrator of the Office Penalties, Reporting and recordkeeping 30.01–2 also issued under the authority of of Information and Regulatory Affairs requirements, Seamen. 44 U.S.C. 3507; Section 30.01–05 also issued has not designated it as a significant under the authority of Sec. 4109, Pub. L. 46 CFR Part 70 energy action. Therefore, it does not 101–380, 104 Stat. 515. require a Statement of Energy Effects Marine safety, Passenger vessels, § 30.01–5 [Amended] under Executive Order 13211. Reporting and recordkeeping requirements. ■ 6. In Table 30.05–1(d), row 4, column L. Technical Standards 4, of § 30.01–5, remove the text ‘‘All The National Technology Transfer 46 CFR Part 90 seagoing barges except those covered by and Advancement Act (NTTAA) Cargo vessels, Marine safety. columns 2 and 3.’’ and add, in its place, (15 U.S.C. 272 note) directs agencies to the text ‘‘All manned seagoing barges.’’. use voluntary consensus standards in 46 CFR Part 91 PART 70—GENERAL PROVISIONS their regulatory activities unless the Cargo vessels, Marine safety, agency provides Congress, through the Reporting and recordkeeping ■ 7. The authority citation for part 70 Office of Management and Budget, with requirements. an explanation of why using these continues to read as follows: standards would be inconsistent with 46 CFR Part 188 Authority: 46 U.S.C. 3306, 3703; Pub. L. applicable law or otherwise impractical. 103–206, 107 Stat. 2439; 49 U.S.C. 5103, Marine safety, Oceanographic 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Voluntary consensus standards are research vessels. technical standards (e.g., specifications Comp., p. 277; Department of Homeland Security Delegation No. 0170.1; Section of materials, performance, design, or For the reasons discussed in the preamble, the Coast Guard amends 70.01–15 also issued under the authority of operation; test methods; sampling 44 U.S.C. 3507. procedures; and related management 46 CFR parts 2, 24, 30, 70, 90, 91, and systems practices) that are developed or 188 as follows: § 70.05–1 [Amended] adopted by voluntary consensus PART 2—VESSEL INSPECTIONS ■ 8. In Table 70.05–1(a), row 4, column standards bodies. 4, of § 70.05–1, remove the text ‘‘All This rule does not use technical ■ 1. The authority citation for part 2 seagoing barges except those covered by standards. Therefore, we did not continues to read as follows: columns 2 and 3.’’ and add, in its place, consider the use of voluntary consensus the text ‘‘All manned seagoing barges.’’. standards. Authority: 33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 2110, 3103, 3205, 3306, 3307, 3703; PART 90—GENERAL PROVISIONS M. Environment 46 U.S.C. Chapter 701; E.O. 12234, 45 FR We have analyzed this rule under 58801, 3 CFR, 1980 Comp., p. 277; ■ 9. The authority citation for part 90 Department of Homeland Security Department of Homeland Security Delegation No. 0170.1. Subpart 2.45 also issued under continues to read as follows: Management Directive 023–01 and the Act Dec. 27, 1950, Ch. 1155, secs. 1, 2, Authority: 46 U.S.C. 3306, 3703; Pub. L. Commandant Instruction M16475.lD, 64 Stat. 1120 (see 46 U.S.C. App. Note prec. 103–206, 107 Stat. 2439; 49 U.S.C. 5103, which guide the Coast Guard in 1). 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 complying with the National Comp., p. 277; Department of Homeland Environmental Policy Act of 1969 § 2.01–7 [Amended] Security Delegation No. 0170.1. (NEPA) (42 U.S.C. 4321–4370f), and ■ 2. In Table 2.01–7(a), row 4, column § 90.05–1 [Amended] have concluded that this action is one 4, of § 2.01–7, remove the text ‘‘All ■ of a category of actions that do not seagoing barges except those covered by 10. In Table 90.05–1(a), row 4, column individually or cumulatively have a columns 2 and 3.’’ and add, in its place, 4, of § 90.05–1, remove the text ‘‘All significant effect on the human the text ‘‘All manned seagoing barges.’’. seagoing barges except those covered by environment. This rule is categorically columns 2 and 3.’’ and add, in its place, excluded under section 2.B.2, figure 2– PART 24—GENERAL PROVISIONS the text ‘‘All manned seagoing barges.’’. 1, paragraph (34)(a) of the Instruction. ■ 11. Revise § 90.05–25(a) to read as This rule involves amendments to ■ 3. The authority citation for part 24 follows: regulations which are editorial or continues to read as follows: § 90.05–25 Seagoing barge. procedural and merely align the text of Authority: 46 U.S.C. 2113, 3306, 4104, the regulations with current law and 4302; Pub. L. 103–206; 107 Stat. 2439; E.O. (a) All non-self-propelled vessels of Coast Guard practice. An environmental 12234; 45 FR 58801, 3 CFR, 1980 Comp., p. 100 gross tons or more are subject to analysis checklist and a categorical 277; Department of Homeland Security inspection when proceeding beyond the exclusion determination are available in Delegation No. 0170.1. Boundary Line if they—

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77716 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

(1) Carry a hazardous material as DEPARTMENT OF TRANSPORTATION General comments are addressed in cargo; or this section, and more specific (2) Carry a flammable or combustible Federal Railroad Administration comments are addressed in the relevant liquid, including oil, in bulk; or sections of the preamble below. Some 49 CFR Part 269 comments were generally supportive of (3) Are manned. the NPRM, and other comments were * * * * * [Docket No. FRA–2009–0108; Notice No. 2] generally unsupportive of the NPRM. A comment sought clarification RIN 2130–AC19 PART 91—INSPECTION AND regarding whether an eligible rail carrier CERTIFICATION Alternate Passenger Rail Service Pilot under the pilot program could create a Program separate company to manage and ■ 12. The authority citation for part 91 operate the passenger operation, or continues to read as follows: AGENCY: Federal Railroad whether it could enter into a private Authority: 33 U.S.C. 1321(j); 46 U.S.C. Administration (FRA), Department of access rights agreement with an 3205, 3306, 3307; 46 U.S.C. Chapter 701; Transportation (DOT). alternative rail passenger operator. This Executive Order 12234; 45 FR 58801; 3 CFR, ACTION: Final rule. final rule develops a pilot program that 1980 Comp., p. 277; Executive Order 12777, permits a rail carrier or rail carriers that 56 FR 54757, 3 CFR, 1991 Comp., p. 351; SUMMARY: This final rule is in response own infrastructure over which Amtrak Department of Homeland Security Delegation to a statutory mandate that FRA operates certain passenger rail service No. 0170.1. complete a rulemaking proceeding to routes to petition FRA to be considered ■ 13. Amend § 91.01–10 as follows: develop a pilot program that permits a as a passenger rail service provider over rail carrier or rail carriers that own such a route in lieu of Amtrak. This ■ a. Revise paragraphs (c)(1)(i) and (ii); infrastructure over which Amtrak final rule does not prohibit an eligible and operates certain passenger rail service rail carrier from creating a separate ■ b. In paragraph (c)(2), remove the routes to petition FRA to be considered company to manage and/or operate the words ‘‘seagoing barges of 100 gross as a passenger rail service provider over passenger rail service, or from entering tons and over,’’ and add, in their place, such a route in lieu of Amtrak for a into an agreement with a third party to the words ‘‘inspected seagoing barges’’. period not to exceed five years after the manage and/or operate the passenger The revisions read as follows: date of enactment of the Passenger Rail rail service. However, a pilot program Investment and Improvement Act of petition must be submitted by a rail § 91.01–10 Period of validity for a 2008. The final rule develops this pilot carrier or rail carriers that own the Certificate of Inspection program in conformance with the infrastructure as described in § 269.7 of * * * * * statutory directive. this final rule. In addition, such (c)(1) * * * DATES: This final rule is effective on information regarding the management (i) Inspected seagoing barges February 13, 2012. and/or operation of the service would be relevant to FRA’s evaluation of the bid, proceeding beyond the Boundary Line FOR FURTHER INFORMATION CONTACT: and should be described in detail for the sole purpose of changing place Alexander Roth, Office of Railroad pursuant to § 269.9 of this final rule. of employment. Policy and Development, FRA, 1200 Several comments stated that the pilot (ii) Inspected seagoing barges making New Jersey Ave. SE., Washington, DC program should allow a State to submit rare or infrequent voyages beyond the 20590 (telephone: (202) 493–6109); or a petition (with the concurrence of the Boundary Line and returning to the port Zeb Schorr, Attorney-Advisor, Office of infrastructure owner), and/or that there of departure. Chief Counsel, FRA, 1200 New Jersey should be a statutory role for States in * * * * * Ave. SE., Mail Stop 10, Washington, DC the pilot program. Comments also stated 20590 (telephone: (202) 493–6072). that State involvement is particularly PART 188—GENERAL PROVISIONS SUPPLEMENTARY INFORMATION: important to bidding on State-supported I. Background routes (which are eligible under the ■ 14. The authority citation for part 188 pilot program) as such routes are largely continues to read as follows: By notice of proposed rulemaking funded by States. A comment further (NPRM) published on September 7, Authority: 46 U.S.C. 2113, 3306; Pub. L stated that States should be able to 103–206, 107 Stat. 2439; 49 U.S.C. 5103, 2011 (76 FR 55335), FRA proposed an participate in the pilot program process 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 alternate passenger rail service pilot both out of a matter of fairness and to Comp., p. 277; Department of Homeland program in response to a statutory ensure that existing contracts between Security Delegation No. 0170.1. mandate—specifically, § 214 of the States and Amtrak would not be Passenger Rail Investment and unconstitutionally impaired. As an § 188.05–1 [Amended] Improvement Act of 2008 (PRIIA), initial matter, § 214 of PRIIA only ■ 15. In Table 188.05–1(a), row 4, Public Law No. 110–432, Division B provides that a rail carrier or rail column 4, of § 188.05–1, remove the text (Oct. 16, 2008). The comment period for carriers that own infrastructure over ‘‘All seagoing barges except those the NPRM closed on November 7, 2011. which Amtrak operates certain covered by columns 2 and 3.’’ and add, FRA received written comments passenger rail service routes may submit in its place, the text ‘‘All manned submitted by Ratp Development a petition. See 49 U.S.C. 24711(a)(1). seagoing barges.’’. America, the Transportation Trades Section 214 does not establish a Department of the AFL–CIO, the statutory role for States in the pilot Dated: December 6, 2011. American Short Line and Regional program petition process. In compliance J.G. Lantz, Railroad Association, the Association of with this statutory mandate, this final Director of Commercial Regulations and Independent Passenger Rail Operators, rule provides that only an eligible rail Standards, U.S. Coast Guard. Herzog Transit Services, Inc., First carrier may submit a petition. However, [FR Doc. 2011–32007 Filed 12–13–11; 8:45 am] Transit, Veolia Transportation N.A., and a State may participate in the pilot BILLING CODE 9110–04–P two individuals. program process. Specifically, a

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77717

petitioning rail carrier may include, in lieu of Amtrak for a period not to exceed did not authorize funds for FRA to use its bid package, documentation of a five years after October 16, 2008 (the to pay for any such operating subsidy, State’s approval of the bid for the date of enactment of PRIIA). Section 214 or any other costs arising from the particular State-supported route. further provides that those routes proposed pilot program; nor did Indeed, § 269.9(b)(4) of this final rule described in 49 U.S.C. 24102(5)(B), (C), Congress appropriate funds for the pilot requires, in part, that a bidder describe and (D) and in 49 U.S.C. 24702 are program. the sources of non-Federal funding, eligible for the pilot program, and that Comments stated that the pilot including any State operating subsidy the program not be made available to program should allow for the transfer of and any other State payments. See also more than two routes. current and existing service subsidies 49 U.S.C. 24711(a)(3). Section 214 also provides for, among made by FRA to Amtrak to operators Comments stated that the pilot other things, the following: The selected under the pilot program. program should include the right-of-way establishment of a petition, notification, However, FRA does not have the owner as a full partner in the proposed and bid process through which FRA authority to transfer any such existing service, and that the pilot program would evaluate bids to provide subsidies. Other comments stated that should recognize the importance of passenger rail service over particular there should be a mechanism for FRA to protecting the capacity required for routes by interested rail carriers and award an operating subsidy to pay for freight operations. As an initial matter, Amtrak; FRA’s selection of a winning costs associated with the pilot program. FRA agrees that freight railroads (and bidder by, among other things, As described above, no funds have been commuter railroads, for that matter) are evaluating the bids against the financial appropriated to the FRA to provide such critical partners to the success of and performance metrics developed financial assistance. intercity passenger rail that makes use under section 207 of PRIIA; FRA’s A comment also stated that a of their facilities. Furthermore, the pilot execution of a contract with the winning mechanism needs to be created to program recognizes that a bid submitted bidder awarding the right and obligation clearly identify the route by route by an eligible rail carrier must describe to provide passenger rail service over subsidy and the method of transfer, and how that rail carrier would operate over the route, along with an operating that such information would be critical right-of-way on the route that it does not subsidy, as well as requiring compliance to a fair bidding process. The comment own. Specifically, § 269.9 of this final with the minimum standards goes on to suggest that FRA analyze and rule requires a bidder to describe the established under section 207 of PRIIA, rank all Amtrak routes (national and operating agreement(s) necessary for the among other things; that Amtrak must State-supported). In addition, the operation of passenger service over provide access to its reservation system, comment notes that the cost allocation right-of-way on the route that is not stations, and facilities to a winning methodology of § 209 of PRIIA should owned by the bidder. bidder; that employees used in the be the basis for determining the A comment stated that FRA should operation of a route under the pilot appropriate subsidy amount for these solicit the opinion of States on how the program would be considered an routes. FRA notes that useful route-by- pilot program, as applied to State- employee of that rail carrier and would route Amtrak cost information is supported routes, could best be made to be subject to the applicable Federal laws published in the Quarterly Report on successfully work. As noted, FRA and regulations governing similar crafts the Performance and Service Quality on published the proposed rule in the or classes of employees of Amtrak; that Intercity Passenger Train Operations Federal Register, but did not receive the winning bidder must provide hiring (available at http://www.fra.dot.gov/rpd/ any comments from a State. preference to displaced qualified passenger/2165.shtml). FRA also notes Another comment contested the Amtrak employees; that the winning that avoidable cost outputs are not yet constitutionality of § 201 of PRIIA, bidder would be subject to the grant available, and that eight quarters of which defines the national railroad conditions under 49 U.S.C. 24405; and comparable fully allocated cost data has passenger transportation system, but did that, if a winning bidder ceases to not yet been accumulated. However, not relate the comment to the proposed operate the service or to otherwise fulfill waiting for this data, and for the States rule. their obligations, the FRA and Amtrak to arrive at a final Lastly, one comment generally Administrator, in collaboration with the consensus on the § 209 methodology, disagreed with the NPRM and stated Surface Transportation Board, would could potentially delay publication of that a better way to meet the take any necessary action to enforce the this final rule well beyond the requirements of PRIIA would be to contract and to ensure the continued expiration of the pilot program itself convert Amtrak into a § 501(c)(3) provision of service. (October 16, 2013). Furthermore, in nonprofit corporation. FRA disagrees. order to be competitive, prospective As discussed above, the NPRM (and this b. Adequate Resources Certification bidders will likely need to provide the final rule) was in response to a specific Section 214 provides that, before FRA service at cost levels below those of statutory mandate that FRA complete a may take any action allowed under 49 Amtrak’s. It is the bidder’s verifiable rulemaking proceeding to develop an U.S.C. 24711, the Secretary of cost projections for their proposed alternate passenger rail service pilot Transportation (Secretary) must certify service, rather than the historical program. that the FRA Administrator has Amtrak costs, that will be particularly sufficient resources that are adequate to important in the bidding process. a. Summary of Final Rule undertake the pilot program. FRA This final rule incorporates the This final rule is in response to a understands this requirement to mean adequate resources certification statutory mandate that FRA complete a that FRA may not proceed with any requirement by providing, in § 269.3(a), rulemaking proceeding to develop a action under a pilot program developed that part 269 is not applicable to any pilot program that permits a rail carrier by this final rule until the Secretary has railroad, unless and until, the Secretary or rail carriers that own infrastructure issued such a certification. certifies that FRA has sufficient over which Amtrak operates certain It should also be noted that section resources that are adequate to undertake passenger rail service routes to petition 214 requires FRA to award to a winning the pilot program. Only upon such FRA to be considered as a passenger rail bidder, among other things, an operating certification does the pilot program service provider over such a route in subsidy. 49 U.S.C. 24711(a)(5)(B). PRIIA become available. As described below,

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77718 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

the time period within which petitions comment sought clarification regarding in compliance with the statutory may be filed with FRA is triggered by whether petitions for routes which were requirements. FRA providing notice of the Secretary’s not one of the worst performing routes II. Section-by-Section Analysis certification. would be permitted to compete against A comment stated that the Secretary one of the worst performing routes. Section 269.1 Purpose must quickly certify that FRA has Section 214 of PRIIA mandates which This section provides that the final adequate resources to undertake the routes are eligible for the pilot program, rule carries out the statutory mandate program; the comment further provided as follows: Those routes described in 49 set forth in 49 U.S.C. 24711 that requires that substantial FRA resources would U.S.C. 24102(5)(B), (C), or (D) and 49 FRA to develop a pilot program that not be required for the pilot program. U.S.C. 24702. See 49 U.S.C. 24711(a)(1). permits a rail carrier or rail carriers that The Secretary will issue this As such, Amtrak State-supported routes own infrastructure over which Amtrak certification when appropriate. In under 49 U.S.C. 24702 are eligible for operates a passenger rail service route to addition, it must be noted that FRA will the pilot program. In addition, the worst expend valuable resources in petition FRA to be considered as a performing routes preference is required passenger rail service provider over that administering the pilot program, by statute, and simply provides that especially in the thorough evaluation of route in lieu of Amtrak. FRA shall give preference in awarding A comment sought clarification each of the petitions and bid packages contracts to bidders who are seeking to that may be received. regarding the meaning of the term operate such routes. See 49 U.S.C. ‘‘own’’ as it is used in this section (and c. Timeline Established by the Final 24711(a)(4). FRA is not required to as it is used in § 269.7(a) of this final Rule select such routes; instead, the worst rule). The comment further stated that performing routes preference is one the party responsible for maintenance of The final rule establishes deadlines factor in FRA’s evaluation of the bids for filing petitions, filing bids, and such infrastructure under 49 CFR part submitted. FRA’s execution of contract(s) with any 213 should be considered an owner for As to the filing of bids, § 269.9 winning bidders. As to the filing of purposes of this section. However, § 214 petitions, § 269.7(b) of the final rule requires the Petitioner and Amtrak to of PRIIA is clear in that only a rail requires a petition to be filed with FRA both file bids with FRA no later than 60 carrier or rail carriers that own such no later than 45 days after FRA provides days after the petition deadline infrastructure may submit a petition notice of the Secretary’s certification established by § 269.7(b). Section under the pilot program. See 49 U.S.C. that the FRA Administrator has 269.9(b) articulates the bid 24711(a)(1). The statute does not sufficient resources that are adequate to requirements. The 60-day time period authorize FRA to expand this statutory undertake the pilot program. This gives a bidder sufficient time to prepare directive by allowing a party deadline is necessary in order to comply a bid that satisfies the bid requirements, responsible for maintenance of such with the statutory mandate. Specifically, while also limiting the duration of the infrastructure to submit a petition. 49 U.S.C. 24711(a)(4) requires FRA to, bid process. Furthermore, and as noted above, this as relevant here, ‘‘give preference in One comment stated that a final rule does not prohibit an eligible awarding contracts to bidders seeking to petitioner’s failure to submit a bid rail carrier from entering into an operate routes that have been identified within the timeline established by this agreement with a third party (such as an as one of the five worst performing final rule should result in an automatic entity that maintains the infrastructure) Amtrak routes under section 24710’’ of disqualification of that party from to manage and/or operate the passenger title 49 of the United States Code. In bidding on the route at issue. The rail service. order to comply with this statutory comment stated that late bids would Section 269.3 Application directive to ‘‘give preference’’ to ‘‘the defeat what is already a short-duration five worst performing Amtrak routes,’’ program, and would allow a party to Paragraph (a) of this section provides FRA must be able to evaluate all bids at game the process. The final rule is clear that the final rule does not apply to any the same time. Section 269.7(b)’s that under § 269.9 both the petitioner railroad, unless and until, the Secretary petition deadline enables FRA to and Amtrak must file bids with FRA no certifies that FRA has sufficient evaluate all bids at the same time and later than 60 days after the petition resources that are adequate to undertake to ‘‘give preference’’ where appropriate deadline established by § 269.7(b). No the pilot program. This section also as directed by the statute. allowance is made for exceptions to this states that, upon receipt, FRA will In addition, §§ 269.3(c) and 269.7(d) deadline. Furthermore, § 269.13 requires provide notice of the certification on the of the final rule also take into FRA to execute a contract with the FRA public Web site. This paragraph is consideration the possibility that the winning bidder(s) no later than 90 days based on the statutory directive in 49 period during which a railroad may after the bid deadline established by U.S.C. 24711(e). In addition, as provide passenger rail service under this § 269.9. discussed in § 269.7(a), FRA’s notice of pilot program, which is currently set by Lastly, as to the award and execution the Secretary’s certification will trigger statute to expire on October 16, 2013, is of contracts with winning bidders, the 45-day deadline by which an extended by statute. In that event, the § 269.13 requires FRA to execute a eligible railroad may petition FRA final rule requires petitions to be filed contract with the winning bidder(s) no under the pilot program. with FRA no later than 60 days after the later than 90 days after the bid deadline Paragraph (b) of this section provides enactment of such statutory authority established by § 269.9. Section 214 of that the pilot program will not be made and requires such petitions to otherwise PRIIA requires FRA to ‘‘execute a available to more than two Amtrak comply with the requirements of this contract within a specified, limited intercity passenger rail routes. This part. time.’’ 49 U.S.C. 24711(a)(5). The 90-day paragraph is based on the statutory A comment stated that the ‘‘worst time period is a limited period for FRA directive contained in 49 U.S.C. performing routes’’ criteria must be and the winning bidder(s) to execute an 24711(b). modified to assure that other routes, agreement(s) that satisfies the Paragraph (c) of this section provides including State-supported routes, be requirements of § 269.13, including that any rail carrier or rail carriers eligible for the pilot program. Another FRA’s obligation of an operating subsidy awarded a contract to provide passenger

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77719

rail service under the pilot program may consists, fare structures, and such a Surface Transportation Board order only be able to provide such service for amenities as sleeping cars and food under § 217 of PRIIA). a period not to exceed five years after service provisions; station locations; Another comment asked whether the October 16, 2008 (the date of PRIIA’s hours of operation; provisions for proposed rule ‘‘exercise[s] any enactment), or a later date authorized by accommodating the traveling public, jurisdiction’’ over the process in which statute. This paragraph is based on the including proposed arrangements for a State enters into a contract with a statutory directive contained in 49 stations shared with other routes; party other than Amtrak to operate a U.S.C. 24711(a)(1). In addition, this expected ridership; passenger-miles; State-supported intercity passenger paragraph also takes into consideration revenues by class of service between route (or whether such a situation more the possibility that the 5-year limitation each city-pair proposed to be served; appropriately falls under § 217 of period established in PRIIA is extended and a statement of the assumptions PRIIA). Section 214 of PRIIA does not by statute. underlying the operating plan’s address this issue, nor does this final Several comments stated that the pilot contents. The final rule requires bidders rule. program should be extended to allow for to include a financial plan and an In seeking clarification regarding the a longer program period (e.g., extending operating plan—as those terms are meaning of the term ‘‘passenger rail the program to five years from the time defined here—in their bids. These service route’’ as used in Paragraph (a) an award is made), which the comments definitions will ensure that bids contain of this section, a comment questioned stated would allow pilot program sufficient information to be evaluated. whether the Chicago-Milwaukee route operators to function more efficiently, Section 269.7 Petitions 21 Hiawatha is included as part of the and would be a more appropriate period route 25 Empire Builder because it uses of time considering the work necessary Paragraph (a) of this section provides the same trackage, and whether route to operate a route. However, as that a railroad that owns infrastructure 25, which has two destinations, Seattle discussed, § 214 of PRIIA requires that over which Amtrak operates a passenger and Portland, is one route or two. the pilot program not exceed five years rail service route may petition FRA to be Determination of these site-specific after the date of PRIIA’s enactment considered as a passenger rail service details can only be made in response to (October 16, 2008). In addition, the final provider over that route in lieu of specific petitions. For this final rule to rule does take into consideration the Amtrak for a period of time consistent address every such situation—of which possibility that the period established in with the time limitations described in the national rail network could present PRIIA may be extended by statute. section 269.3(c). This paragraph is based more than one—would add needless Section 269.5 Definitions on the statutory directive contained in complexity and would delay the This section contains the definitions 49 U.S.C. 24711(a)(1). This paragraph rulemaking process. for the final rule. This section defines does not require that a railroad own all A comment questioned FRA’s the following terms: Act; Administrator; of the infrastructure over which Amtrak authority to permit a rail carrier that Amtrak; File and filed; Financial plan; operates a passenger rail service route in does not own all of the infrastructure on FRA; Operating plan; Passenger rail order to file a petition. a particular eligible route to access that service route; Petitioner; Railroad, and Comments sought clarification portion of the infrastructure owned by Secretary. Among other definitions, this regarding the routes that are eligible another party. This comment section defines ‘‘passenger rail service under the pilot program (one comment misconstrues the proposed rule. Under route’’ to mean those routes described in sought confirmation that all current the NPRM and this final rule, a railroad 49 U.S.C. 24102(5)(B), (C), and (D) and non-Northeast Corridor Amtrak- that owns infrastructure over which in 49 U.S.C. 24702. This definition is operated routes are eligible for the pilot Amtrak operates certain passenger rail based on the statutory directive program, whether part of Amtrak’s service routes may petition FRA. As contained in 49 U.S.C. 24711(a)(1). In national system or State-supported, and noted, a railroad does not have to own addition, this section defines ‘‘railroad’’ regardless of the length of the route). A all of the infrastructure over which to mean a rail carrier or rail carriers, as related comment sought clarification Amtrak operates in order to file a defined in 49 U.S.C. 10102(5). This regarding the eligibility of routes which petition. However, in that event, FRA definition is based on the statutory connected with or utilized Northeast would expect the railroad to describe in directive contained in 49 U.S.C. Corridor or other Amtrak-owned its bid the agreement(s) necessary to 24711(a)(1) and (c)(3). infrastructure. As discussed above, operate over right-of-way that is not This section also defines ‘‘financial PRIIA and this final rule provide that all owned by the bidding railroad, in plan’’ to mean a plan that contains, for of the routes described in 49 U.S.C. compliance with § 269.9(b) of this final each Federal fiscal year fully or partially 24102(5)(B), (C), and (D) and in 49 rule. covered by the bid: An annual U.S.C. 24702 are eligible. See 49 U.S.C. A comment also stated that a railroad projection of the revenues, expenses, 24711(a)(1). Amtrak’s Northeast should be able to offer service over a capital expenditure requirements, and Corridor is not eligible for the pilot shorter route (as compared to the cash flows (from operating activities, program. See 49 U.S.C. 24711(a)(1) Amtrak route) if the omitted section of investing activities, and financing (statute does not include 49 U.S.C. the route would continue to be provided activities, showing sources and uses of 24102(5)(A) in the description of with service by another passenger train. funds) attributable to the route; and a eligible Amtrak routes). As noted, FRA However, § 214 of PRIIA and this final statement of the assumptions will examine any agreement(s) rule require that a railroad selected to underlying the financial plan’s contents. necessary for the operation of the provide rail passenger service over a In addition, this section defines proposed passenger service over right- route under the pilot program must ‘‘operating plan’’ to mean a plan that of-way on the route that is not owned continue to provide passenger rail contains, for each Federal fiscal year by the petitioning railroad, as described service on the route that is no less fully or partially covered by the bid: A in § 269.9(b)(2) of this final rule. This frequent, nor over a shorter distance, complete description of the service analysis would include any Amtrak- than Amtrak provided on that route planned to be offered, including the owned infrastructure on the route at before the award. See 49 U.S.C. train schedules, frequencies, equipment issue (whether voluntary or pursuant to 24711(c)(1)(A).

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77720 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

Paragraph (b) of this section provides performance. That comment went on to bidder would use, including but not that a petition submitted to FRA under state that Amtrak should not be able to limited to any Federal or State operating this rule must: Be filed with FRA no make a bid materially different from its subsidy and any other Federal or State later than 45 days after FRA provides current fully-allocated financial and payments; (5) contain a staffing plan notice of the Secretary’s certification performance metrics and that Amtrak describing the number of employees pursuant to proposed § 269.3(a); should not be able to make a bid based needed to operate the service, the job describe the petition as a ‘‘Petition to on incremental costs because its assignments and requirements, and the Provide Passenger Rail Service under 49 overhead is devoted to servicing these terms of work for prospective and CFR part 269’’; and describe the route or passenger routes. However, § 214 of current employees of the bidder for the routes over which the petitioner wants PRIIA and this final rule are intended to service outlined in the bid; and (6) to provide passenger rail service and the foster improved and more competitive describe how the passenger rail service Amtrak service that the petitioner wants passenger rail service. The comment’s would comply with the financial and to replace. This paragraph is intended to proposed restrictions would stifle performance metrics developed ensure that a petition provides clear innovation and work against that very pursuant to § 207 of PRIIA (at a notice to FRA. purpose. Moreover, all bidders have an minimum, this description must Paragraph (c) of this section provides inherent interest in minimizing the cash include, for each Federal fiscal year that, in the event that a later statute losses of the service in question: fully or partially covered by the bid: A extends the time period under which a Amtrak, because it operates under a projection of the route’s expected on- railroad may provide passenger rail limited Federal operating grant; and the time performance and train delays service pursuant to the pilot program, competing bidder(s), which would need according to the metrics developed petitions would have to be filed with to minimize both the subsidy pursuant to § 207 of PRIIA; and the net FRA no later than 60 days after the later requirement and the cash drain on their cash used in operating activities per of the enactment of such statutory corporate finances (so as to both win the passenger-mile attributable to the route, authority or the Secretary’s issuance of bid and safeguard their profitability). both before and after the application of the certification under § 269.3(a), and FRA believes that these inherent factors any expected public subsidies). This that the petition must otherwise comply will prohibit bids that do not cover their paragraph is based on the statutory with the requirements of the pilot full costs, and in any event, FRA will be directive contained in 49 U.S.C. program. This paragraph takes into carefully evaluating all bids for their 24711(a)(3) and (a)(6). consideration the possibility that the 5- viability. FRA is making one technical change year limitations period established in to the rule text in Paragraph (b)(6) in PRIIA is extended by statute. Paragraph (b) of this section describes order to permit FRA to better compare the bid requirements, including a and evaluate bids. Paragraph (b)(6) Section 269.9 Bid Process requirement that such bids must be filed provides that a bid must describe how Paragraph (a) of this section provides with FRA no later than 60 days after the the passenger rail service would comply that FRA will notify Amtrak of any petition deadline established by § 269.7. with the financial and performance eligible petition filed with FRA no later Paragraph (b) further provides that such metrics developed pursuant to § 207 of than 30 days after FRA’s receipt of such bids must: (1) Provide FRA with PRIIA, and then proceeds to list what petition. This paragraph is based on the sufficient information to evaluate the that description must include. The last statutory directive contained in 49 level of service described in the item in that list is the net cash used in U.S.C. 24711(a)(2). proposal, and to evaluate the proposal’s operating activities per passenger-mile. A comment stated that Amtrak should compliance with the requirements FRA is making one technical change be required to provide any bidder under described in § 269.13(b); (2) describe here by further stating that the net cash the pilot program with route how the bidder would operate the route must be both before and after the performance information for the (including an operating plan, a financial application of any expected public previous five years (including ridership, plan and, if applicable, any agreement(s) subsidies. This clarification is passenger-miles, and revenues by class necessary for the operation of passenger consistent with the statutory mandate of service between each city-pair). service over right-of-way on the route and the metrics developed pursuant to However, such a requirement is beyond that is not owned by the railroad), and, § 207 of PRIIA, and allows for FRA to the authority created by § 214 of PRIIA. if the bidder intends to generate any be able to compare the net cash numbers A comment also stated that FRA and revenues from ancillary activities (i.e., provided by Amtrak and a rail carrier. Amtrak should work with bidders under activities other than passenger See 49 U.S.C. 24711(a)(4). the pilot program to develop a proposal transportation, accommodations, and Paragraph (c) of this section provides that is mutually beneficial to all parties food service) as part of its proposed that FRA may request supplemental (e.g., a proposal in which Amtrak operation of the route, then the bidder information from a petitioner and/or continues to provide some of its services must fully describe such ancillary Amtrak where FRA determines such for the route at issue). The statutory activities and identify their incremental information is needed to evaluate a bid. mandate sets forth a competitive process impact in all relevant sections of the In such a request, FRA will establish a in which a railroad and Amtrak bid for operating plan and the financial plan, deadline by which the supplemental a route. The statute does not authorize and on the route’s performance under information must be submitted to FRA. a requirement that Amtrak work on a the financial and performance metrics This paragraph allows FRA to request collaborative bid with a railroad that is developed pursuant to § 207 of the Act, additional information where the seeking to replace Amtrak. together with the assumptions information provided in a bid prevents A comment sought clarification underlying the estimates of such FRA from adequately evaluating the regarding whether Amtrak is restricted incremental impacts; (3) describe what proposal. to bidding its current fully-allocated Amtrak passenger equipment would be financial performance under the route needed, if any; (4) describe in detail, Section 269.11 Evaluation profitability system, or whether Amtrak including amounts, timing, and This section provides that FRA will could be allowed to propose anything intended purpose, what sources of select a winning bidder by evaluating materially different from its current Federal and non-Federal funding the the bids against the financial and

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77721

performance metrics developed under under 49 U.S.C. 24405(c)(1)(D) is final rule. In providing access to its section 207 of PRIIA and the compliance with the liability reservation system, stations, and requirements of this part, and will give requirements consistent with 49 U.S.C. facilities, Amtrak would need to allow preference in awarding contracts to 28103, which among other things limits the third-party to successfully use the bidders seeking to operate routes that rail passenger transportation liability. reservation system, stations and have been identified as one of the five Paragraph (c) of this section provides facilities. worst performing Amtrak routes under that the winning bidder will make their A comment sought clarification 49 U.S.C. 24710. This paragraph is staffing plan, submitted as required by regarding whether the term ‘‘facilities’’ based on the statutory directive § 269.9(b)(4), available to the public as used in paragraph (a) of this section contained in 49 U.S.C. 24711(a)(4). after the bid award. This paragraph is encompasses Amtrak’s contracted right based on the statutory directive to use facilities it does not own and Section 269.13 Award contained in 49 U.S.C. 24711(a)(6). provided the hypothetical example of Paragraph (a) of this section provides whether a bidder for the Vermonter Section 269.15 Access to Facilities; that FRA will execute a contract with route would have access to the portion Employees the winning bidder(s) consistent with of the Northeast Corridor between New the requirements of § 269.13 and as FRA Paragraph (a) of this section provides Haven and New York City owned by may otherwise require, no later than 90 that, if an award under § 269.13 is made Metro North. That comment went on to days after the bid deadline established to a rail carrier other than Amtrak, state that the definition should be broad by § 269.9(b). This paragraph also Amtrak must provide access to its and should encompass all facilities to provides that FRA will provide timely reservation system, stations, and which Amtrak has access through notice of these selections to all facilities directly related to operations to ownership, lease or contract. Section petitioners and to Amtrak. This the winning bidder awarded a contract, 214 of PRIIA does not authorize such a paragraph is based on the statutory in accordance with § 217 of PRIIA, broad definition. Putting aside directive contained in 49 U.S.C. necessary to carry out the purposes of circumstances in which Amtrak owns 24711(a)(5). the final rule. This paragraph is based the infrastructure and § 217 of PRIIA Paragraph (b) of this section provides on the statutory directive contained in may apply, neither the statute nor this that, among other things, such a contract 49 U.S.C. 24711(c)(2). final rule require that owners of right- will: (1) Award to the winning bidder A comment stated that the rolling of-way not owned by a bidding railroad the right and obligation to provide stock, stations, and reservation systems must provide access to their passenger rail service over that route that Amtrak uses need to be available to infrastructure. As described above, subject to such performance standards pilot program operators at no cost. As pursuant to the statutory mandate, the as FRA may require, consistent with the discussed, § 214 of PRIIA requires that pilot program developed by this final standards developed under section 207 Amtrak provide access to its reservation rule only permits a rail carrier or rail of PRIIA; (2) award to the winning system, stations, and facilities. See 49 carriers that own infrastructure to bidder an operating subsidy for the first U.S.C. 24711(c)(2). However, § 214 does petition FRA. In the event that a bidder year at a level not in excess of the level not authorize FRA to require Amtrak to does not own all of the infrastructure on in effect during the fiscal year preceding provide such access at no cost. the route, the bid must describe the the fiscal year in which the petition was A comment sought clarification operating agreements necessary for received, adjusted for inflation, and for regarding how FRA would establish an operation on the right-of-way not owned any subsequent years at such level, equitable cost basis for third party by the railroad. adjusted for inflation; (3) condition the access to Amtrak’s reservation system, Paragraph (b) of this section provides operating and subsidy rights upon the stations, and facilities in a timely that the employees of any person used winning bidder continuing to provide manner. As required by statute and this by a rail carrier in the operation of a passenger rail service on the route that final rule, Amtrak is required to provide route under the final rule will be is no less frequent, nor over a shorter such access in accordance with § 217 of considered an employee of that carrier distance, than Amtrak provided on that PRIIA, which provides a process by and subject to the applicable Federal route before the award; (4) condition the which a cost is agreed upon by the laws and regulations governing similar operating and subsidy rights upon the parties. See 49 U.S.C. 24711(c)(2). crafts or classes of employees of Amtrak, winning bidder’s compliance with the A comment also sought clarification including provisions under § 121 of the minimum standards established under as to whether such access includes Amtrak Reform and Accountability Act section 207 of PRIIA and such access to services provided by Amtrak of 1997 relating to employees that additional performance standards as employees, including reservation provide food and beverage service. This FRA may establish; and (5) subject the agents, redcaps, gate agents, Qualified paragraph is based on the statutory winning bidder to the grant conditions Maintenance Persons or Qualified directive contained in 49 U.S.C. established by 49 U.S.C. 24405. This Persons. The statute and this final rule 24711(c)(3). paragraph is based on the statutory only provide that Amtrak shall be Paragraph (c) of this section provides directive contained in 49 U.S.C. required to provide access to its that a winning bidder will provide 24711(a)(5), (c)(1), and (c)(4). reservation system, stations, and hiring preference to qualified Amtrak A comment stated that FRA should facilities; the statute does not authorize employees displaced by the award of mandate contractual provisions for access to services performed by Amtrak the bid, consistent with the staffing plan liability and insurance that are employees. submitted by the winning bidder. This consistent for all parties. However, the A comment stated that Amtrak should paragraph is based on the statutory statutory mandate does not authorize not be able to prevent operation of a directive contained in 49 U.S.C. such a requirement. It should be noted route by a private rail carrier by 24711(c)(4). that § 214 and this final rule do require withholding services directly related to that a winning bidder under the pilot Amtrak’s control of its facilities, Section 269.17 Cessation of Service program shall be subject to the grant stations, or reservation systems. FRA This section provides that, if a rail conditions under 49 U.S.C. 24405. See agrees that Amtrak must comply with carrier awarded a route under this rule 49 U.S.C. 24711(c)(4). One requirement the requirements of the statute and this ceases to operate the service or fails to

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77722 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

fulfill its obligations under the contract Amtrak if one or more alternative The Regulatory Flexibility Act of 1980 required under § 269.13, the service providers bid on a route(s). For (5 U.S.C. 601 et seq.) requires a review Administrator, in collaboration with the informational purposes, FRA included of proposed and final rules to assess Surface Transportation Board, will take in the RIA appendices detailing the their impact on small entities, unless any necessary action consistent with estimated average costs for both a the Secretary of Transportation certifies title 49 of the United States Code to railroad and Amtrak to participate in the that the rule will not have a significant enforce the contract and ensure the pilot program. FRA estimates the economic impact on a substantial continued provision of service, average cost for each individual railroad number of small entities. Pursuant to including the installment of an interim to participate in the program and to Section 312 of the Small Business service provider and re-bidding the submit the required bid proposal (the Regulatory Enforcement Fairness Act of contract to operate the service. This majority of the cost) at about $300,000 1996 (Pub. L. 104–121), FRA has issued section further provides that the entity per route, and the average cost for a final policy that formally establishes providing service would either be Amtrak at about $150,000 per route ‘‘small entities’’ as including railroads Amtrak or a rail carrier eligible for the (regardless of how many individual that meet the line-haulage revenue pilot program under § 269.7. This railroads bid on the individual Amtrak requirements of a Class III railroad. Title paragraph is based on the statutory route). Non-Amtrak railroads that 49 Code of Federal Regulations CFR Part directive contained in 49 U.S.C. participate voluntarily will do so 209, Appendix C. For other entities, the 24711(d). because they consider the benefits to same dollar limit in revenues governs exceed the costs. Thus, any whether a railroad, contractor, or other III. Regulatory Impact and Notices participation will be net-beneficial with respondent is a small entity. Id. 1. Executive Orders 12866 and 13563 respect to the voluntary participant. Additionally, Section 601(5) defines as and DOT Regulatory Policies and Any costs to Amtrak are regulatory costs ‘‘small entities’’ governments of cities, Procedures incurred solely due to the requirements counties, towns, townships, villages, school districts, or special districts with This final rule has been evaluated in of this final rule, and will primarily be populations less than 50,000. Such accordance with existing policies and associated with costs associated with developing bids. governments will not be directly procedures and determined to be non- impacted by this final rule. significant under Executive Orders Given that this pilot program is 12866 and 13563, and U.S. Department voluntary for alternate service providers Rationale for Choosing Regulatory of Transportation (DOT) policies and and is not currently funded by Congress, Action and Legal Authority procedures. See 44 FR 11034; February FRA estimates that this regulation will FRA is initiating this final rule in 26, 1979. FRA has prepared and placed not result in any benefits or costs. response to a statutory mandate set forth in the docket a regulatory impact 2. Regulatory Flexibility Act in Section 214 of the PRIIA. Section 214 analysis (RIA) addressing the economic requires FRA to complete a rulemaking impact of this final rule. Document To ensure potential impacts of rules proceeding to develop a pilot program inspection and copying facilities are on small entities are properly that permits a rail carrier or rail carriers available at the DOT Central Docket considered, FRA developed this final that own infrastructure over which Management Facility located in Room rule in accordance with Executive Order Amtrak operates certain passenger rail W12–140 on the ground level of the 13272 (‘‘Proper Consideration of Small service routes to petition FRA to be West Building, 1200 New Jersey Avenue Entities in Agency Rulemaking’’) and considered as a passenger rail service SE., Washington, DC 20590. Docket DOT’s procedures and policies to provider over such a route in lieu of material is also available for inspection promote compliance with the Amtrak for a period not to exceed 5 electronically through the Federal Regulatory Flexibility Act (5 U.S.C. 601 years after the date of enactment of the eRulemaking Portal at http://www. et seq.). The Regulatory Flexibility Act PRIIA. This final rule develops this pilot regulations.gov. Photocopies may also requires an agency to review regulations program in conformance with the be obtained by submitting a written to assess their impact on small entities. statutory directive. request to the FRA Docket Clerk at the An agency must conduct a regulatory Office of Chief Counsel, RCC–10, Mail flexibility analysis unless it determines Description of Regulated Entities and Stop 10, Federal Railroad and certifies that a rule is not expected Impacts Administration, 1200 New Jersey to have a significant impact on a This final rule is applicable to Avenue SE., Washington, DC 20590; substantial number of small entities. railroads that own infrastructure upon which Amtrak operates those routes please refer to Docket No. FRA–2009– Purpose 0108. described in 49 U.S.C. 24102(5)(B), (C), As part of a RIA, FRA generally As noted earlier in this final rule, the and (D) and in 49 U.S.C. 24702, which assesses quantitative measurements of purpose of this rulemaking is to respond may include small railroads. ‘‘Small the cost and benefit streams expected to to a statutory mandate to develop a pilot entity’’ is defined in 5 U.S.C. 601 as result from the adoption of a rule. program that permits a rail carrier or rail including a small business concern that However, in this case, due to the limited carriers that own infrastructure over is independently owned and operated, number of routes that can be awarded which Amtrak operates certain and is not dominant in its field of under the pilot program (only two passenger rail service routes to petition operation. The U.S. Small Business routes can be awarded), and the short FRA to be considered as a passenger rail Administration (SBA) has authority to timeframe in which this pilot program service provider over such a route in regulate issues related to small will operate (until 2013), it is not lieu of Amtrak for a period not to exceed businesses, and stipulates in its size feasible to perform an analysis for an 5 years after the date of enactment of the standards that a ‘‘small entity’’ in the extended period. There are no alternate Passenger Rail Investment and railroad industry is a for profit ‘‘line- service provider railroad regulatory Improvement Act of 2008 (PRIIA). The haul railroad’’ that has fewer than 1,500 costs because the program is voluntary final rule develops this pilot program in employees, a ‘‘short line railroad’’ with with respect to such rail carriers. conformance with the statutory fewer than 500 employees, or a Regulatory costs will be triggered for directive. ‘‘commuter rail system’’ with annual

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77723

receipts of less than $7 million. See Criteria for Significant Economic means, except as provided in section ‘‘Size Eligibility Provisions and Impacts 1320.4, the obtaining, causing to be Standards,’’ 13 CFR Part 121, Subpart A. The factual basis for the certification obtained, soliciting, or requiring the Federal agencies may adopt their own that this final rule will not have a disclosure to an agency, third parties or size standards for small entities in significant economic impact on a the public of information by or for an consultation with SBA and in substantial number of small entities is agency by means of identical questions conjunction with public comment. that the pilot program is voluntary for posed to, or identical reporting, Pursuant to that authority, FRA has all rail carriers except Amtrak; and no recordkeeping, or disclosure published a final statement of agency small entities are anticipated to apply. requirements imposed on, ten or more policy that formally establishes ‘‘small Therefore, this regulation is not persons, whether such collection of entities’’ or ‘‘small businesses’’ as being expected to have a significant economic information is mandatory, voluntary, or railroads, contractors, and hazardous impact on a substantial number of small required to obtain or retain a benefit.’’ materials shippers that meet the revenue entities. FRA expects that the requirements of requirements of a Class III railroad as set FRA notes that this regulation does this final rule will affect less than 10 forth in 49 CFR 1201.1–1, which is $20 not disproportionately place any small railroads or ‘‘persons’’ as defined in 5 million or less in inflation-adjusted railroads that are small entities at a CFR 1320.(c)(4). Consequently, no annual revenues, and commuter significant competitive disadvantage. information collection submission is railroads or small governmental Small railroads are not excluded from necessary, and no approval is being jurisdictions that serve populations of participation, so long as they are sought from the Office of Management 50,000 or less. See 68 FR 24891 (May 9, eligible. This regulation and the and Budget (OMB) at this time. 2003) (codified at Appendix C to 49 CFR underlying statute are aimed at railroads 4. Environmental Impact Part 209). The $20 million limit is based taking over an entire route. If Amtrak on the Surface Transportation Board’s uses 30 miles of a small railroad’s FRA has evaluated this final rule in revenue threshold for a Class III railroad infrastructure in a route that is 750 accordance with its ‘‘Procedures for carrier. Railroad revenue is adjusted for miles long, the small railroad could not Considering Environmental Impacts’’ inflation by applying a revenue deflator apply to take over just its own segment, (FRA’s Procedures) (64 FR 28545, May formula in accordance with 49 CFR but will have to apply to take over the 26, 1999) as required by the National 1201.1–1. FRA is using this definition whole route. Thus, the ability to bid on Environmental Policy Act (42 U.S.C. for the final rule. a route is not constrained by a railroad’s 4321 et seq.), other environmental size. statutes, Executive Orders, and related Minimum Requirements for Pilot regulatory requirements. FRA has Program Applications Request for Comments determined that this document is not a Small railroads face the same FRA invited comments from all major FRA action (requiring the requirements for entry in the pilot interested parties on this certification. preparation of an environmental impact program as other railroads. The railroad FRA also requested comments on the statement or environmental assessment) must own infrastructure upon which regulatory impact analysis and its because the rulemaking would not Amtrak operates those routes described underlying assumptions. FRA result in a change in current passenger in 49 U.S.C. 24102(5)(B), (C), and (D), particularly encouraged small entities service; instead, the program would and in 49 U.S.C. 24702. that could potentially be impacted by only potentially result in a change in the operator of such service. In accordance Disclosure of Assumptions the proposed regulation to participate in the public comment process by with section 4(c) and (e) of FRA’s The purpose of this economic analysis submitting comments on this Procedures, the agency has further is to provide pertinent information on assessment or this rulemaking to the concluded that no extraordinary the effects of the regulation, 49 CFR Part official DOT docket. Although FRA circumstances exist with respect to this 269, Alternate Passenger Rail Service received comments on the proposed final rule that might trigger the need for Pilot Program. FRA believes that the rule, none were related to either a more detailed environmental review. regulation will not have any effect on economic analysis. As a result, FRA finds that this final rule small railroads since participation in the is not a major Federal action pilot program is voluntary, only two Certification significantly affecting the quality of the routes are available for award, the Pursuant to the Regulatory Flexibility human environment. program expires in 2013, and it is Act (5 U.S.C. 605(b)), FRA certifies that 5. Federalism Implications unlikely that Federal funding not this final rule will not have a significant currently available will be available for economic impact on a substantial Executive Order 13132, ‘‘Federalism’’ the program. FRA does not anticipate number of small entities. The final rule (64 FR 43255, Aug. 4, 1999), requires that any small railroads will be does not require, or otherwise impose, FRA to develop an accountable process interested in taking over such an any requirements upon any small to ensure ‘‘meaningful and timely input existing, eligible Amtrak route. entities. Instead, this final rule develops by State and local officials in the a pilot program under which an eligible development of regulatory policies that Criteria for Substantial Number small entity may voluntarily elect to have federalism implications.’’ ‘‘Policies This regulation is voluntary for all rail participate. Furthermore, the final rule that have federalism implications’’ are carriers, except Amtrak, which will be establishes a very limited pilot program defined in the Executive Order to impacted only if another carrier that applies to no more than two Amtrak include regulations that have petitions to participate in the pilot routes. ‘‘substantial direct effects on the States, program. Therefore, there are no on the relationship between the national mandates placed on large or small 3. Paperwork Reduction Act government and the States, or on the railroads. Consequently, this regulation According to the Paperwork distribution of power and will not affect a substantial number of Reduction Act of 1995 and OMB’s responsibilities among the various small entities, and most likely will not Implementing Guidance at 5 CFR levels of government.’’ Under Executive impact any small entities. 1320.3(c), ‘‘collection of information Order 13132, the agency may not issue

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77724 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

a regulation with federalism $140,800,000 to account for inflation. 269.1 Purpose. implications that imposes substantial This final rule will not result in the 269.3 Application. direct compliance costs and that is not expenditure of more than $140,800,000 269.5 Definitions. required by statute, unless the Federal by the public sector in any one year, and 269.7 Petitions. government provides the funds thus preparation of such a statement is 269.9 Bid process. 269.11 Evaluation. necessary to pay the direct compliance not required. 269.13 Award. costs incurred by State and local 7. Energy Impact 269.15 Access to facilities; employees. governments, or the agency consults 269.17 Cessation of service. with State and local government Executive Order 13211 requires Federal agencies to prepare a Statement Authority: Sec. 214, Div. B, Pub. L. 110– officials early in the process of 432; 49 U.S.C. 24711; and 49 CFR 1.49. developing the regulation. Where a of Energy Effects for any ‘‘significant regulation has federalism implications energy action.’’ 66 FR 28355 (May 22, § 269.1 Purpose. and preempts State law, the agency 2001). Under the Executive Order, a The purpose of this part is to carry out seeks to consult with State and local ‘‘significant energy action’’ is defined as the statutory mandate set forth in officials in the process of developing the any action by an agency (normally 49 U.S.C. 24711 requiring FRA to regulation. published in the Federal Register) that develop a pilot program that permits a FRA has analyzed this final rule in promulgates or is expected to lead to the railroad that owns infrastructure over accordance with the principles and promulgation of a final rule or which Amtrak operates a passenger rail criteria contained in Executive Order regulation, including notices of inquiry, service route to petition FRA to be 13132. This final rule will not have a advance notices of proposed considered as a passenger rail service substantial direct effect on the States, on rulemaking, and notices of proposed provider over that route in lieu of the relationship between the Federal rulemaking that: (1)(i) Is a significant Amtrak. government and the States, or on the regulatory action under Executive Order distribution of power and 12866 or any successor order, and (ii) is § 269.3 Application. responsibilities among the various likely to have a significant adverse effect (a) Certification. This part will not be levels of government. In addition, this on the supply, distribution, or use of applicable to any railroad, unless and final rule will not impose substantial energy; or (2) is designated by the until, the Secretary certifies that FRA direct compliance costs on State and Administrator of the Office of has sufficient resources that are local governments. Therefore, the Information and Regulatory Affairs as a adequate to undertake the pilot program consultation and funding requirements significant energy action. FRA has developed by this part. FRA will of Executive Order 13132 do not apply. evaluated this final rule in accordance provide notice of the certification on the As explained, FRA has determined that with Executive Order 13211. FRA has FRA public Web site upon receipt. this final rule has no federalism determined that this final rule is not (b) Route limitations. The pilot implications. Accordingly, FRA has likely to have a significant adverse effect program developed by this part will not determined that preparation of a on the supply, distribution, or use of be made available to more than two federalism summary impact statement energy. Consequently, FRA has Amtrak intercity passenger rail routes. for this final rule is not required. determined that this final rule is not a (c) Time limitations. Any railroad ‘‘significant energy action’’ within the awarded a contract to provide passenger 6. Unfunded Mandates Reform Act of meaning of Executive Order 13211. 1995 rail service under the pilot program 8. Privacy Act Information developed by this part shall only Pursuant to Section 201 of the provide such service for a period not to Interested parties should be aware Unfunded Mandates Reform Act of 1995 exceed either five years after October 16, that anyone is able to search the (Pub. L. 104–4, 2 U.S.C. 1531), each 2008, or a later date authorized by electronic form of all written Federal agency ‘‘shall, unless otherwise statute. prohibited by law, assess the effects of communications and comments Federal regulatory actions on State, received into any agency docket by the § 269.5 Definitions. local, and tribal governments, and the name of the individual submitting the As used in this part— private sector (other than to the extent document (or signing the document, if Act means the Passenger Rail that such regulations incorporate submitted on behalf of an association, Investment and Improvement Act of requirements specifically set forth in business, labor union, etc.). You may 2008 (Pub. L. 110–432, Division B (Oct. law).’’ Section 202 of the Act (2 U.S.C. review DOT’s complete Privacy Act 16, 2008)). 1532) further requires that ‘‘before Statement in the Federal Register Administrator means the Federal promulgating any general notice of published on April 11, 2000 (65 FR Railroad Administrator, or the Federal proposed rulemaking that is likely to 19477), or you may visit http://www.dot. Railroad Administrator’s delegate. result in the promulgation of any rule gov/privacy.html. Amtrak means the National Railroad that includes any Federal mandate that List of Subjects in 49 CFR Part 269 Passenger Corporation. may result in expenditure by State, File and Filed mean submission of a local, and tribal governments, in the Railroads; Railroad employees. document under this part on the date aggregate, or by the private sector, of The Rule the document was postmarked, or the $100,000,000 or more (adjusted date the document was emailed to FRA. annually for inflation) in any one year, For the reasons discussed in the Financial plan means a plan that and before promulgating any final rule preamble, FRA amends chapter II, contains, for each Federal fiscal year for which a general notice of proposed subtitle B of title 49, Code of Federal fully or partially covered by the bid: An rulemaking was published, the agency Regulations, by adding part 269 to read annual projection of the revenues, shall prepare a written statement’’ as follows: expenses, capital expenditure detailing the effect on State, local, and PART 269—ALTERNATE PASSENGER requirements, and cash flows (from tribal governments and the private RAIL SERVICE PILOT PROGRAM operating activities, investing activities, sector. This monetary amount of and financing activities, showing $100,000,000 has been adjusted to Sec. sources and uses of funds) attributable

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations 77725

to the route; and a statement of the filed with FRA no later than 60 days and performance metrics developed assumptions underlying the financial after the later of the enactment of such pursuant to section 207 of the Act. At plan’s contents. statutory authority or the Secretary’s a minimum, this description must FRA means the Federal Railroad issuance of the certification under include, for each Federal fiscal year Administration. § 269.3(a), and shall otherwise comply fully or partially covered by the bid: a Operating plan means a plan that with the requirements of this part. projection of the route’s expected on- contains, for each Federal fiscal year time performance and train delays fully or partially covered by the bid: A § 269.9 Bid process. according to the metrics developed complete description of the service (a) Amtrak notification. FRA will pursuant to section 207 of the Act; and planned to be offered, including the notify Amtrak of any eligible petition the net cash used in operating activities train schedules, frequencies, equipment filed with FRA no later than 30 days per passenger-mile (both before and consists, fare structures, and such after FRA’s receipt of such petition. after the application of any expected amenities as sleeping cars and food (b) Bid requirements. A petitioner and public subsidies) attributable to the service provisions; station locations; Amtrak must both file a bid with FRA route. hours of operation; provisions for to provide passenger rail service over (c) Supplemental information. FRA accommodating the traveling public, the route to which the petition relates may request supplemental information including proposed arrangements for no later than 60 days after the petition from a petitioner and/or Amtrak where stations shared with other routes; deadline established by § 269.7 of this FRA determines such information is expected ridership; passenger-miles; part using the following method: email needed to evaluate a bid. In such a revenues by class of service between to [email protected]. Each such bid request, FRA will establish a deadline each city-pair proposed to be served; must: by which the supplemental information and a statement of the assumptions (1) Provide FRA with sufficient must be filed with FRA. underlying the operating plan’s information to evaluate the level of contents. service described in the proposal, and to § 269.11 Evaluation. Passenger rail service route means evaluate the proposal’s compliance with FRA will select a winning bidder by those routes described in 49 U.S.C. the requirements described in evaluating the bids against the financial 24102(5)(B), (C), and (D) or in 49 U.S.C. § 269.13(b) of this part; and performance metrics developed 24702. (2) Describe how the bidder would under section 207 of the Act and the Petitioner means a railroad, other than operate the route. This description must requirements of this part, and will give Amtrak, that has submitted a petition to include, but is not limited to, an preference in awarding contracts to FRA under section 269.7 of this part. operating plan, a financial plan and, if bidders seeking to operate routes that Railroad means a rail carrier or rail applicable, any agreement(s) necessary have been identified as one of the five carriers, as defined in 49 U.S.C. for the operation of passenger service worst performing Amtrak routes under 10102(5). over right-of-way on the route that is not 49 U.S.C. 24710. Secretary means the Secretary of the owned by the railroad. In addition, if U.S. Department of Transportation. the bidder intends to generate any § 269.13 Award. revenues from ancillary activities (i.e., (a) Award. FRA will execute a § 269.7 Petitions. activities other than passenger contract with the winning bidder(s), (a) In General. A railroad that owns transportation, accommodations, and consistent with the requirements of this infrastructure over which Amtrak food service) as part of its proposed section and as FRA may otherwise operates a passenger rail service route operation of the route, then the bidder require, no later than 90 days after the may petition FRA to be considered as a must fully describe such ancillary bid deadline established by § 269.9(b) of passenger rail service provider over that activities and identify their incremental this part. FRA will provide timely route in lieu of Amtrak for a period of impact in all relevant sections of the notice of these selections to all time consistent with the time operating plan and the financial plan, petitioners and Amtrak. limitations described in § 269.3(c) of and on the route’s performance under (b) Contract requirements. Among this part. the financial and performance metrics other things, the contract between FRA (b) Petition Requirements. Each developed pursuant to section 207 of and a winning bidder shall: petition shall: the Act, together with the assumptions (1) Award to the winning bidder the (1) Be filed with FRA no later than 45 underlying the estimates of such right and obligation to provide days after FRA provides notice of the incremental impacts; passenger rail service over that route Secretary’s certification pursuant to (3) Describe what Amtrak passenger subject to such performance standards § 269.3(a) of this part using the equipment would be needed, if any; as FRA may require, consistent with the following method: email to (4) Describe in detail, including standards developed under section 207 [email protected]; amounts, timing, and intended purpose, of the Act, for a duration consistent with (2) Describe the petition as a ‘‘Petition what sources of Federal and non- § 269.3(c) of this part; to Provide Passenger Rail Service under Federal funding the bidder would use, (2) Award to the winning bidder an 49 CFR part 269’’; and including but not limited to any Federal operating subsidy for the first year at a (3) Describe the route or routes over or State operating subsidy and any other level not in excess of the level in effect which the petitioner wants to provide Federal or State payments; during the fiscal year preceding the passenger rail service and the Amtrak (5) Contain a staffing plan describing fiscal year in which the petition was service that the petitioner wants to the number of employees needed to received, adjusted for inflation, and for replace. operate the service, the job assignments any subsequent years at such level, (c) Future petitions. In the event that and requirements, and the terms of work adjusted for inflation; a statute extends the time period under for prospective and current employees (3) Condition the operating and which a railroad may provide passenger of the bidder for the service outlined in subsidy rights upon the winning bidder rail service pursuant to the pilot the bid; and continuing to provide passenger rail program developed by this part, (6) Describe how the passenger rail service on the route that is no less petitions under this section shall be service would comply with the financial frequent, nor over a shorter distance,

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77726 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Rules and Regulations

than Amtrak provided on that route bidder awarded a contract under this § 269.17 Cessation of service. before the award; part, in accordance with section 217 of If a railroad awarded a route under (4) Condition the operating and the Act, necessary to carry out the this part ceases to operate the service or subsidy rights upon the winning purposes of this part. fails to fulfill its obligations under the bidder’s compliance with the minimum (b) Employees. The employees of any contract required under § 269.13 of this standards established under section 207 person used by a railroad in the part, the Administrator, in collaboration of the Act and such additional operation of a route under this part shall with the Surface Transportation Board, performance standards as FRA may shall take any necessary action establish; and be considered an employee of that railroad and subject to the applicable consistent with title 49 of the United (5) Subject the winning bidder to the States Code to enforce the contract and Federal laws and regulations governing grant conditions established by ensure the continued provision of similar crafts or classes of employees of 49 U.S.C. 24405. service, including the installment of an Amtrak, including provisions under (c) Staffing Plan Publication. The interim service provider and re-bidding winning bidder shall make their staffing section 121 of the Amtrak Reform and the contract to operate the service. The plan required by § 269.9(b)(4) of this Accountability Act of 1997 relating to entity providing service shall either be part available to the public after the bid employees who provide food and Amtrak or a railroad eligible for this award. beverage service. pilot program under § 269.7 of this part. § 269.15 Access to facilities; employees. (c) Hiring preference. The winning Issued in Washington, DC, on December 7, (a) Access to facilities. If the award bidder shall provide hiring preference to 2011. under § 269.13 of this part is made to a qualified Amtrak employees displaced Joseph C. Szabo, railroad other than Amtrak, Amtrak by the award of the bid, consistent with Administrator, Federal Railroad must provide access to its reservation the staffing plan submitted by the Administration. system, stations, and facilities directly winning bidder. [FR Doc. 2011–31990 Filed 12–13–11; 8:45 am] related to operations to the winning BILLING CODE 4910–06–P

VerDate Mar<15>2010 17:15 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00058 Fmt 4700 Sfmt 9990 E:\FR\FM\14DER1.SGM 14DER1 mstockstill on DSK4VPTVN1PROD with RULES 77727

Proposed Rules Federal Register Vol. 76, No. 240

Wednesday, December 14, 2011

This section of the FEDERAL REGISTER the city designator of Columbia, SC. To airport. This action also would update contains notices to the public of the proposed avoid confusion this proposed rule is the geographic coordinates of the issuance of rules and regulations. The being withdrawn and will be airport. purpose of these notices is to give interested established under another rulemaking DATES: Comments must be received on persons an opportunity to participate in the with the new airport name and rule making prior to the adoption of the final or before January 30, 2012. The Director rules. designation, along with an amendment of the Federal Register approves this for the Columbia, SC controlled airspace incorporation by reference action under area removing Corporate Airport from title 1, Code of Federal Regulations, part DEPARTMENT OF TRANSPORTATION the description. 51, subject to the annual revision of Lists of Subjects in 14 CFR Part 71 FAA, Order 7400.9 and publication of Federal Aviation Administration conforming amendments. Airspace, Incorporation by reference, ADDRESSES: Navigation (air). Send comments on this rule 14 CFR Part 71 to: U.S. Department of Transportation, [Docket No. FAA–2011–0627; Airspace The Withdrawal Docket Operations, West Building Docket No. 11–ASO–27] Accordingly, pursuant to the Ground Floor, Room W12–140, 1200 authority delegated to me, the Notice of New Jersey Ave. SE., Washington, DC Proposed Amendment of Class E Proposed Rulemaking, as published in 20590–0001; Telephone: 1–(800) 647– Airspace; Pelion, SC the Federal Register on August 22, 2011 5527; Fax: (202) 493–2251. You must identify the Docket Number FAA–2011– AGENCY: Federal Aviation (76 FR 52290) (FR Doc. 2011–21827), is Administration (FAA), DOT. hereby withdrawn. 1196; Airspace Docket No. 11–ASO–38, at the beginning of your comments. You ACTION: Notice of proposed rulemaking Authority: 49 U.S.C. 106(g); 40103, 40113, may also submit and review received (NPRM), withdrawal. 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. comments through the Internet at http://www.regulations.gov. SUMMARY: A notice of proposed Issued in College Park, Georgia, on FOR FURTHER INFORMATION CONTACT: John rulemaking published in the Federal December 5, 2011. Register on August 22, 2011 amending Fornito, Operations Support Group, Mark D. Ward, Eastern Service Center, Federal Aviation Class E airspace at Lexington County Manager, Operations Support Group, Eastern Airport at Pelion, Pelion, SC, is being Administration, P.O. Box 20636, Service Center, Air Traffic Organization. Atlanta, Georgia 30320; telephone (404) withdrawn. Upon review, the FAA [FR Doc. 2011–32039 Filed 12–13–11; 8:45 am] found that controlled airspace already 305–6364. BILLING CODE 4910–13–P exists for this airport under a different SUPPLEMENTARY INFORMATION: city designator and airport name, and Comments Invited substantial corrections would need to be DEPARTMENT OF TRANSPORTATION made. In the interest of clarity, a new Interested persons are invited to proposal amending existing airspace Federal Aviation Administration comment on this rule by submitting and establishing airspace with the new such written data, views, or arguments, information will be submitted under a 14 CFR Part 71 as they may desire. Comments that separate rulemaking. provide the factual basis supporting the [Docket No. FAA–2011–1196; Airspace views and suggestions presented are DATES: Effective December 14, 2011, the Docket No. 11–ASO–38] particularly helpful in developing proposed rule published August 22, reasoned regulatory decisions on the Proposed Amendment of Class E 2011 (76 FR 52290), is withdrawn. 0901 proposal. Comments are specifically Airspace; Columbia, SC, and Proposed UTC. invited on the overall regulatory, Establishment of Class E Airspace; FOR FURTHER INFORMATION CONTACT: John aeronautical, economic, environmental, Pelion, SC Fornito, Operations Support Group, and energy-related aspects of the Eastern Service Center, Federal Aviation AGENCY: Federal Aviation proposal. Administration, P.O. Box 20636, Administration (FAA), DOT. Communications should identify both Atlanta, Georgia 30320; telephone (404) ACTION: Notice of proposed rulemaking docket numbers (FAA Docket No. FAA– 305–6364. (NPRM). 2011–1196; Airspace Docket No. 11– SUPPLEMENTARY INFORMATION: ASO–38) and be submitted in triplicate SUMMARY: This action proposes to to the Docket Management System (see History amend Class E Airspace at Columbia, SC ADDRESSES section for address and On August 22, 2011, a NPRM was by removing Corporate Airport from the phone number). You may also submit published in the Federal Register airspace designation, and would comments through the Internet at amending Class E airspace at Pelion, SC establish Class E Airspace at Pelion, SC, http://www.regulations.gov. to accommodate new standard using the new airport name, as new Persons wishing the FAA to instrument approach procedures for Standard Instrument Approach acknowledge receipt of their comments Lexington County Airport at Pelion (76 Procedures have been developed at on this action must submit with those FR 52290). Subsequent to publication Lexington County Airport at Pelion. comments a self-addressed stamped the FAA found that the airspace This action would enhance the safety postcard on which the following currently existed under the airport’s and airspace management of Instrument statement is made: ‘‘Comments to previous name of Corporate Airport and Flight Rules (IFR) operations at the Docket No. FAA–2011–1196; Airspace

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77728 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

Docket No. 11–ASO–38.’’ The postcard Class E airspace designations are Authority: 49 U.S.C. 106(g); 40103, 40113, will be date/time stamped and returned published in Paragraph 6005 of FAA 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– to the commenter. Order 7400.9V, dated August 9, 2011, 1963 Comp., p. 389. All communications received before and effective September 15, 2011, which § 71.1 [Amended] the specified closing date for comments is incorporated by reference in 14 CFR 2. The incorporation by reference in will be considered before taking action 71.1. The Class E airspace designation 14 CFR 71.1 of Federal Aviation on the proposed rule. The proposal listed in this document will be Administration Order 7400.9V, Airspace contained in this notice may be changed published subsequently in the Order. Designations and Reporting Points, in light of the comments received. A The FAA has determined that this dated August 9, 2011, effective report summarizing each substantive proposed regulation only involves an September 15, 2011, is amended as public contact with FAA personnel established body of technical follows: concerned with this rulemaking will be regulations for which frequent and filed in the docket. routine amendments are necessary to Paragraph 6005 Class E airspace areas keep them operationally current. It, extending upward from 700 feet or more Availability of NPRMs therefore, (1) is not a ‘‘significant above the surface of the earth. An electronic copy of this document regulatory action’’ under Executive * * * * * may be downloaded from and Order 12866; (2) is not a ‘‘significant ASO SC E5 Columbia, SC [Amended] comments submitted through http:// rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February Columbia Metropolitan Airport, SC www.regulations.gov. Recently ° ′ ″ ° ′ ″ published rulemaking documents can 26, 1979); and (3) does not warrant (Lat. 33 56 20 N., long. 81 07 10 W.) Columbia Owens Downtown Airport also be accessed through the FAA’s web preparation of a Regulatory Evaluation (Lat. 33°58′14″ N., long. 80°59′43″ W.) page at http://www.faa.gov/ as the anticipated impact is so minimal. That airspace extending upward from 700 airports_airtraffic/air_traffic/ Since this is a routine matter that will _ feet above the surface within a 10-mile radius publications/airspace amendments/. only affect air traffic procedures and air of Columbia Metropolitan Airport and within You may review the public docket navigation, it is certified that this a 6.5-mile radius of Columbia Owens containing the proposal, any comments proposed rule, when promulgated, Downtown Airport. received and any final disposition in would not have a significant economic * * * * * person in the Dockets Office (see the impact on a substantial number of small ASO SC E5 Pelion, SC [New] ADDRESSES section for address and entities under the criteria of the phone number) between 9 a.m. and Regulatory Flexibility Act. Lexington County Airport at Pelion, Pelion, 5 p.m., Monday through Friday, except The FAA’s authority to issue rules SC (Lat. 33°47′41″ N., long. 81°14′45″ W.) Federal Holidays. An informal docket regarding aviation safety is found in may also be examined during normal Title 49 of the United States Code. That airspace extending upward from 700 Subtitle I, Section 106 describes the feet above the surface within a 6.6-mile business hours at the office of the radius of the Lexington County Airport at Eastern Service Center, Federal Aviation authority of the FAA Administrator. Pelion. Administration, Room 350, 1701 Subtitle VII, Aviation Programs, describes in more detail the scope of the Issued in College Park, Georgia, on Columbia Avenue, College Park, Georgia December 5, 2011. 30337. agency’s authority. This proposed Mark D. Ward, Persons interested in being placed on rulemaking is promulgated under the authority described in Subtitle VII, Part, Manager, Operations Support Group, Eastern a mailing list for future NPRMs should Service Center, Air Traffic Organization. contact the FAA’s Office of Rulemaking, A, Subpart I, Section 40103. Under that (202) 267–9677, to request a copy of section, the FAA is charged with [FR Doc. 2011–32041 Filed 12–13–11; 8:45 am] Advisory circular No. 11–2A, Notice of prescribing regulations to assign the use BILLING CODE 4910–13–P Proposed Rulemaking distribution of airspace necessary to ensure the System, which describes the application safety of aircraft and the efficient use of procedure. airspace. This proposed regulation is COMMODITY FUTURES TRADING within the scope of that authority as it COMMISSION The Proposal would amend Class E airspace at 17 CFR Parts 37 and 38 The FAA is considering an Columbia, SC and establish Class E amendment to Title 14, Code of Federal airspace at Lexington County Airport at RIN 3038–AD18 Regulations (14 CFR) part 71 to amend Pelion, Pelion, SC. Process for a Designated Contract Class E airspace extending upward from Lists of Subjects in 14 CFR Part 71 700 feet above the surface at Columbia, Market or Swap Execution Facility To SC, by removing Corporate Airport from Airspace, Incorporation by reference, Make a Swap Available To Trade Navigation (air). the airspace designation and would AGENCY: Commodity Futures Trading establish Class E airspace extending The Proposed Amendment Commission. upward from 700 feet above the surface In consideration of the foregoing, the ACTION: Further notice of proposed to support new standard instrument rulemaking. approach procedures developed at Federal Aviation Administration Lexington County Airport at Pelion, proposes to amend 14 CFR part 71 as SUMMARY: The Commodity Futures Pelion, SC, formerly Corporate Airport. follows: Trading Commission (‘‘Commission’’) is Airspace reconfiguration is necessary PART 71—DESIGNATION OF CLASS A, proposing regulations that establish a due to the design of new arrival B, C, D, AND E AIRSPACE AREAS; AIR process for a designated contract market procedures, and for continued safety TRAFFIC SERVICE ROUTES; AND (‘‘DCM’’) or swap execution facility and management of IFR operations at REPORTING POINTS (‘‘SEF’’) to make a swap ‘‘available to the airport. The geographic coordinates trade’’ as set forth in new Section 2(h)(8) also would be adjusted to coincide with 1. The authority citation for part 71 of the Commodity Exchange Act the FAAs aeronautical database. continues to read as follows: (‘‘CEA’’) pursuant to Section 723 of the

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77729

Dodd-Frank Wall Street Reform and (202) 418–6770, [email protected], or assessment of whether it has made a Consumer Protection Act (‘‘Dodd-Frank Nhan Nguyen, Attorney Advisor, DMO, swap available for trading and to Act’’). Only comments pertaining to the (202) 418–5932, [email protected], provide a report to the Commission regulations proposed in this document Commodity Futures Trading regarding its assessment.8 In its review will be considered as part of this further Commission, Three Lafayette Centre, and assessment, the SEF may consider notice of proposed rulemaking 1155 21st Street NW., Washington, DC the frequency of transactions, open (‘‘Notice’’). 20581. interest, and any other factor requested DATES: Submit comments on or before SUPPLEMENTARY INFORMATION: by the Commission.9 Proposed § 37.10 February 13, 2012. I. Background also requires that all SEFs are required ADDRESSES: to treat a swap as made available for You may submit comments, The Dodd-Frank Act 1 requires that identified by RIN number 3038–AD18 swap transactions subject to the clearing trading, if at least one SEF has made the and Process for a Designated Contract requirement 2 must be executed on a same or an economically equivalent 10 Market or Swap Execution Facility to DCM or SEF,3 subject to certain swap available for trading. Make a Swap Available to Trade, by any exceptions. Under Section 2(h)(8)(B) of The SEF NPRM sought general public of the following methods: the CEA, the exceptions to the trade comment regarding the meaning of the • Agency Web site, via its Comments execution requirement are if no board of phrase ‘‘made available for trading.’’ 11 Online process at http:// trade 4 or SEF ‘‘makes the swap comments.cftc.gov. Follow the The Commission also asked for available to trade’’ or the related comment on two specific questions: instructions for submitting comments transaction is subject to the clearing through the Web site. (1) Whether SEFs should consider the • exception under Section 2(h)(7) (i.e., the number of market participants trading a Mail: David A. Stawick, Secretary of 5 end-user exception). particular swap, and, if so, whether the Commission, Commodity Futures On January 7, 2011, the Commission there should be a required minimum Trading Commission, Three Lafayette published proposed rules, guidance, number of participants (e.g., two or Centre, 1155 21st Street NW., and acceptable practices (‘‘SEF NPRM’’) Washington, DC 20581. to implement certain statutory three participants); and (2) whether • Hand Delivery/Courier: Same as provisions for SEFs enacted by Title VII SEFs should consider any other factors mail above. of the Dodd-Frank Act.6 In the SEF or processes to make the determination • Federal eRulemaking Portal: http:// NPRM, the Commission proposed, that swaps are made available for www.regulations.gov. Follow the 12 among other rules, § 37.10 related to trading. The Commission received 26 instructions for submitting comments. implementation of the available to trade comments on the proposed ‘‘available to Please submit your comments using provision under Section 2(h)(8) of the trade’’ process.13 The Commission has only one method. CEA.7 Proposed § 37.10 requires each considered these comments, which are All comments must be submitted in SEF to conduct an annual review and discussed below in the next section, in English, or if not, accompanied by an developing this Notice. English translation. Comments will be 1 See Dodd-Frank Wall Street Reform and On December 22, 2010, the posted as received to http:// Consumer Protection Act, Public Law 111–203, 124 www.cftc.gov. You should submit only Stat. 1376 (2010). Commission also published proposed information that you wish to make 2 Section 723(a)(3) of the Dodd-Frank Act rules, guidance, and acceptable available publicly. If you wish the amended the CEA to add a clearing requirement. practices (‘‘DCM NPRM’’) to implement This clearing requirement, under new Section certain statutory provisions for DCMs Commission to consider information 2(h)(1)(A) of the CEA, provides that ‘‘[i]t shall be that may be exempt from disclosure unlawful for any person to engage in a swap unless enacted by Title VII of the Dodd-Frank under the Freedom of Information Act, that person submits such swap for clearing to a Act.14 The DCM NPRM did not establish a petition for confidential treatment of derivatives clearing organization that is registered any obligation for DCMs under Section under this Act or a derivatives clearing organization the exempt information may be that is exempt from registration under this Act if the 2(h)(8) of the CEA, but it did establish submitted according to the established swap is required to be cleared.’’ certain swap reporting obligations.15 procedures in § 145.9 of the 3 Section 723(a)(3) of the Dodd-Frank Act Commission’s regulations, 17 CFR amended the CEA to add a trade execution 8 Id. requirement. This trade execution requirement, 145.9. 9 Id. under new Section 2(h)(8)(A) of the CEA, provides 10 The Commission reserves the right, that with respect to transactions involving swaps Id. but shall have no obligation, to review, subject to the clearing requirement of Section 11 76 FR at 1222. Comments on all aspects of the pre-screen, filter, redact, refuse or 2(h)(1), ‘‘counterparties shall (i) execute the SEF NPRM were due by March 8, 2011. On May 4, remove any or all of your submission transaction on a board of trade designated as a 2011, the Commission reopened the SEF NPRM’s contract market under section 5; or (ii) execute the comment period through June 3, 2011, as part of the from www.cftc.gov that it may deem to transaction on a swap execution facility registered global extension of comment periods for various be inappropriate for publication, such as under 5h or a swap execution facility that is exempt rulemakings implementing the Dodd-Frank Act to obscene language. All submissions that from registration under section 5h(f) of this Act.’’ allow the public additional time to comment on the have been redacted or removed that 4 The logical interpretation of the phrase ‘‘board proposed new regulatory framework for swaps. See Reopening and Extension of Comment Periods for contain comments on the merits of the of trade’’ in Section 2(h)(8)(B) means a board of trade designated as a contract market given such Rulemakings Implementing the Dodd-Frank Wall rulemaking will be retained in the reference in Section 2(h)(8)(A). Street Reform and Consumer Protection Act, 76 FR public comment file and will be 5 Section 2(h)(7) of the CEA provides an 25274 (May 4, 2011). considered as required under the exception to the clearing requirement (‘‘the end- 12 76 FR at 1222. Administrative Procedure Act and other user exception’’) if one of the counterparties to a 13 These comments are available at http:// swap (i) is not a financial entity, (ii) is using the comments.cftc.gov/PublicComments/ applicable laws, and may be accessible swap to hedge or mitigate commercial risk, and (iii) CommentList.aspx?id=955. under the Freedom of Information Act. notifies the Commission how it generally meets its 14 Core Principles and Other Requirements for FOR FURTHER INFORMATION CONTACT: financial obligations associated with entering into Designated Contract Markets, 75 FR 80572 (Dec. 22, Bella Rozenberg, Associate Director, a non-cleared swap. 2010). 6 Core Principles and Other Requirements for 15 See e.g., proposed Sections 38.8, 38.10, and Division of Market Oversight (‘‘DMO’’), Swap Execution Facilities, 76 FR 1214 (Jan. 7, 38.451. Core Principles and Other Requirements for (202) 418–5119, [email protected], 2011). Designated Contract Markets, 75 FR 80572 (Dec. 22, Amir Zaidi, Special Counsel, DMO, 7 76 FR at 1241. 2010).

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77730 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

II. Notice Commission to review the that a swap is available to trade. The appropriateness of a SEF’s Commission views such determination A. Introduction determination that a swap is available to as a trading protocol issued by a DCM In this Notice, the Commission is trade.20 or SEF. Such trading protocol falls proposing regulations to establish a Some commenters requested that the under the definition of a rule under process for a DCM or SEF to make a Commission determine whether a § 40.1 of the Commission’s swap ‘‘available to trade’’ under Section particular swap is available to trade 21 regulations.25 Therefore, pursuant to 2(h)(8) of the CEA.16 The proposed while other commenters requested that Section 5c(c) of the CEA, DCMs and regulations would be included in SEFs make this determination.22 Many SEFs would be required as ‘‘registered proposed parts 37 and 38 of the commenters that supported a entities’’ 26 to submit make available to Commission’s regulations to implement Commission determination noted that trade determinations to the the available to trade provision in SEFs may have incentives to Commission, either for approval or self- Section 2(h)(8) of the CEA. prematurely make certain swaps certification, pursuant to the filing B. Process for a Designated Contract available to trade in order to mandate procedures of part 40 of the 27 Market or Swap Execution Facility To trading in these instruments on or Commission’s regulations. Make a Swap Available To Trade Under through SEFs.23 The commenters that Specifically, under this proposal, a Section 2(h)(8) of the CEA supported a SEF determination stated DCM or SEF would be required to that SEFs should have some discretion submit its determination that a swap is 1. Procedure To Make a Swap Available whether a swap is made available to available to trade under § 40.5 or § 40.6 to Trade—Proposed §§ 37.10(a) and trade.24 of the Commission’s regulations. Under 38.12(a) In light of these comments and the § 40.5, a registered entity may request a. Comments Regarding Available To fact that the DCM NPRM did not Commission approval of a new rule Trade Process establish any obligation for DCMs under prior to its implementation.28 Section Section 2(h)(8) of the CEA, the 40.5(a) requires, among other things,29 A key theme to emerge from the SEF Commission has determined to issue that a registered entity that requests NPRM comments is that the this Notice. Commission prior approval provide an Commission should establish a process explanation and analysis of that for determining when a swap is b. Rule Submission Filing Procedure— available to trade that includes greater Proposed §§ 37.10(a) and 38.12(a) 25 Section 40.1(i) defines rule as ‘‘any 17 Commission involvement. For Proposed §§ 37.10(a) and 38.12(a) set constitutional provision, article of incorporation, example, one commenter suggested that bylaw, rule, regulation, resolution, interpretation, forth the filing procedure that SEFs and stated policy, advisory, terms and conditions, a SEF certify to the Commission those DCMs would utilize in order to swaps that qualify as available to trade trading protocol, agreement or instrument demonstrate that a swap is available to corresponding thereto, including those that and that, following a public notice and trade. Under this proposed procedure, a authorize a response or establish standards for comment period, the Commission DCM or SEF would initially determine responding to a specific emergency, and any confirm (or reject) the SEF’s amendment or addition thereto or repeal thereof, certification.18 Similarly, another made or issued by a registered entity or by the 20 Letter from Andrew Ertel, Evolution Markets governing board thereof or any committee thereof, commenter recommended that a SEF Inc., dated Mar. 8, 2011 at 9. in whatever form adopted.’’ submit to the Commission those swaps 21 E.g., Letter from Craig Donohue, CME Group 26 The term ‘‘registered entity’’ is defined in the it determines to be available to trade Inc., dated Mar. 8, 2011 at 10; Letter from Patrick CEA to include both DCMs and SEFs. See Section and that the Commission review the Durkin, Barclays Capital, dated Mar. 8, 2011 at 11; 1a(40) of the CEA, 7 U.S.C. 1a(40). submission and provide at least a thirty- Letter from Kevin Budd and Todd Lurie, MetLife, 27 See Sections 40.5 and 40.6 and Provisions dated Mar. 8, 2011 at 4; Letter from Richard McVey, Common to Registered Entities, 76 FR 44776 (Jul. day public comment period regarding MarketAxess Corporation, dated Mar. 8, 2011 at 27; 27, 2011). The Commission notes that the proposed its decision.19 Another commenter Letter from Timothy Cameron, Securities Industry procedures to make a swap available to trade are encouraged the Commission to institute and Financial Markets Association Asset different than the procedures to list a swap for a process through which market Management Group, dated Mar. 8, 2011 at 11; Letter trading. A DCM or SEF may list a swap for trading from Richard Whiting, Financial Services by complying with the certification or approval participants could petition the Roundtable, dated Mar. 8, 2011 at 8; Letter from R. procedures under §§ 40.2 or 40.3 of the Martin Chavez, Goldman, Sachs & Co., dated Mar. Commission’s regulations. Under the certification 16 Sections 5(d)(1) and 5h(f)(1) of the CEA require 8, 2011 at 3; Letter from Warren Davis, Sutherland procedures of § 40.2, a DCM or SEF may list a DCMs and SEFs, respectively, to comply with any Asbill & Brennan LLP, on behalf of the Federal product on the business day following the requirement that the Commission may impose by Home Loan Banks, dated Jun. 3, 2011 at 14; Letter Commission’s receipt of the submission, if received rule or regulation pursuant to Section 8a(5) of the from Wayne Pestone, FX Alliance Inc., dated Nov. by the open of business. Under the approval CEA, 7 U.S.C. 12a(5), which authorizes the 4, 2011 at 9–10. procedures of § 40.3, a product is deemed approved Commission to promulgate such regulations as, in 22 E.g., Letter from Wholesale Market Brokers’ by the Commission 45 days after receipt by the the judgment of the Commission, are reasonably Association, Americas, dated Mar. 8, 2011 at 17–18; Commission or at the conclusion of an extended necessary to effectuate any of the provisions or to Letter from Lee Olesky and Douglas Friedman, review period. A DCM or SEF may list the accomplish any of the purposes of the CEA. In Tradeweb Markets LLC, dated Mar. 8, 2011 at 8– submitted product at that time. The Commission addition, Section 721(b) of the Dodd-Frank Act 9; Letter from Coalition for Derivatives End-Users, notes, however, the mere listing or trading of a provides the Commission with authority to adopt dated Mar. 8, 2011 at 7–8. swap on a DCM or SEF would not mean that the rules to define ‘‘[any] term included in an 23 E.g., Letter from Craig Donohue, CME Group swap is available to trade within the meaning of amendment to the Commodity Exchange Act * * * Inc., dated Mar. 8, 2011 at 10; Letter from Patrick Section 2(h)(8) of the CEA. The Commission further made by [the Dodd-Frank Act].’’ Durkin, Barclays Capital, dated Mar. 8, 2011 at 11; notes that a DCM or SEF must submit an available 17 E.g., Letter from Edward Rosen, Cleary Gottlieb Letter from Kevin Budd and Todd Lurie, MetLife, to trade filing at the same time or after submitting Steen & Hamilton LLP, on behalf of certain dealers, dated Mar. 8, 2011 at 4; Letter from Timothy a filing under Sections 40.2 or 40.3. dated Apr. 5, 2011 at 18–19; Letter from Kevin Cameron, Securities Industry and Financial Markets 28 Section 40.5(a). Gould, Markit, dated Mar. 8, 2011 at 3; Letter from Association Asset Management Group, dated Mar. 29 E.g., Section 40.5(a)(6) requires a registered Andrew Ertel, Evolution Markets Inc., dated Mar. 8, 8, 2011 at 11; Letter from Wayne Pestone, FX entity to post notice and a copy of the rule 2011 at 9; Letter from Wholesale Market Brokers’ Alliance Inc., dated Nov. 4, 2011 at 9–10. submission on its Web site, Section 40.5(a)(7) Association, Americas, dated Mar. 8, 2011 at 17–18. 24 E.g., Letter from Wholesale Market Brokers’ requires a registered entity to provide additional 18 Letter from Edward Rosen, Cleary Gottlieb Association, Americas, dated Mar. 8, 2011 at 17–18; information which may be beneficial to the Steen & Hamilton LLP, on behalf of certain dealers, Letter from Lee Olesky and Douglas Friedman, Commission in analyzing a new rule, and Section dated Apr. 5, 2011 at 19. Tradeweb Markets LLC, dated Mar. 8, 2011 at 8– 40.5(a)(8) requires a registered entity to provide in 19 Letter from Kevin Gould, Markit, dated Mar. 8, 9; Letter from Coalition for Derivatives End-Users, the rule submission a brief explanation of any 2011 at 3. dated Mar. 8, 2011 at 7–8. substantive opposing views.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77731

proposed rule and its compliance with must provide a 30-day public comment 2. Factors To Consider To Make a Swap applicable provisions of the CEA, period for the proposed rule.35 During a Available To Trade—Proposed including core principles, and the stay period, the Commission may notify §§ 37.10(b) and 38.12(b) Commission’s regulations thereunder.30 the registered entity that it objects to the This explanation and analysis would a. Comments Regarding Factors To proposed certification on the grounds Consider detail the manner in which the SEF or that the proposed rule is inconsistent DCM considered the factors under with the CEA or the Commission’s Many commenters to the SEF NPRM proposed §§ 37.10(b) or 38.12(b). regulations.36 supported a liquidity requirement for a Sections 40.5(c) and (d) provide the determination that a swap is available to Commission a 45-day review period, Under this Notice, if the Commission trade.39 One commenter, for example, which may be extended for an either approves a DCM’s or SEF’s rule stated that ‘‘Congress intended for the additional 45 days in specified providing that a swap is available to Commission[] to establish a higher circumstances.31 At any time during its trade or permits a certified available to liquidity threshold for mandatory review, the Commission may notify the trade filing to become effective, then the registered entity that it will not, or is swap involved would be deemed execution than for mandatory clearing, unable to, approve a rule because it is available to trade.37 If that swap also is and that a swap is not ‘available to inconsistent or appears to be subject to the clearing requirement, trade’ merely because it is listed on a 40 inconsistent with the CEA or the pursuant to CEA Section 2(h)(8), the DCM/exchange or SEF.’’ However, Commission’s regulations.32 swap must be executed pursuant to the other commenters said that a minimum Similar to the approval procedures rules of a DCM or SEF.38 Under this level of liquidity should not be required under § 40.5, if a registered entity Notice, until such time, the swap is not for a determination that a swap is 41 chooses to submit its available to trade subject to the CEA Section 2(h)(8) trade available to trade. One commenter determination under the certification execution requirement. noted that a determination that a swap procedures of § 40.6, then the registered is available to trade should apply to entity must provide to the Commission The Commission views the proposed each swap that is subject to the clearing an explanation and analysis of the procedure for DCMs and SEFs to make requirement and that the determination proposed rule and a certification that a swap available to trade as a balanced should not require a minimum level of the rule complies with the CEA and the approach whereby a DCM or SEF—the trading activity.42 33 facilities that may be most familiar with Commission’s regulations thereunder. Many commenters also recommended the trading of these swaps—has As in § 40.5, the explanation and specific liquidity factors that a SEF responsibility to make a swap available analysis would detail the manner in should consider in determining whether which the SEF or DCM considered the to trade, while the Commission has a a swap is available to trade such as trade factors under proposed §§ 37.10(b) or role in reviewing such determination. frequency and average transaction size, 38.12(b). Sections 40.6(b) and (c) Additionally, this proposed procedure bid/offer spreads, number and types of provide the Commission 10 business is responsive to comments that the market participants, and volume.43 days to review a rule before it is deemed Commission should establish a process Some commenters further suggested that certified and can be made effective, for DCMs and SEFs to make a swap the Commission set mandatory objective unless the Commission issues a stay of available to trade, with Commission and transparent liquidity factors based the certification for additional 90 days involvement in the determination. The upon an empirical analysis of swap from the date of notification to the Commission notes that as it gains registered entity.34 If the Commission experience with its oversight of swaps 39 E.g., Letter from Edward Rosen, Cleary Gottlieb issues a stay of certification, then it markets, it may decide, in its discretion, Steen & Hamilton LLP, on behalf of certain dealers, to determine that a swap is available to dated Apr. 5, 2011 at 18; Letter from Kevin Gould, 30 Section 40.5(a)(5). This provision also requires, Markit, dated Mar. 8, 2011 at 2; Letter from Jeremy if applicable, a description of the anticipated trade. Barnum and Don Thompson, J.P. Morgan, dated benefits to market participants or others, any Mar. 8, 2011 at 9; Letter from Robert Pickel and potential anticompetitive effects on market Kenneth Bentsen, International Swaps and participants or others, and how the rule fits into the Derivatives Association and Securities Industry and registered entity’s framework of self-regulation. Financial Markets Association, dated Mar. 8, 2011 31 Sections 40.5(c) and (d). In determining 35 Section 40.6(c)(2). at 8; Letter from R. Martin Chavez, Goldman, Sachs whether to extend the review period, the 36 Section 40.6(c)(3). & Co., dated Mar. 8, 2011 at 3; Letter from Craig Commission will consider whether the proposed 37 See proposed §§ 37.10(c) and 38.12(c). Under Donohue, CME Group Inc., dated Mar. 8, 2011 at 9. rule raises novel or complex issues, the submission these sections, if a SEF or DCM makes a swap is incomplete, or the requestor does not respond 40 Letter from Edward Rosen, Cleary Gottlieb available to trade, all other SEFs and DCMs listing completely to Commission questions in a timely Steen & Hamilton LLP, on behalf of certain dealers, or offering for trading such swap and/or any manner. Section 40.5(d)(1). dated Apr. 5, 2011 at 18. economically equivalent swap, shall make those 32 Section 40.5(e). 41 Letter from Dennis Kelleher, Better Markets, swaps available to trade for purposes of the trade 33 Section 40.6(a). Section 40.6(a)(2) requires a Inc., dated Mar. 8, 2011 at 10–11; Letter from registered entity to post notice and a copy of the execution requirement. The Commission notes that Wholesale Market Brokers’ Association, Americas, rule submission on its Web site, Section if a DCM or SEF makes a swap available to trade, dated Mar. 8, 2011 at 17–18; Letter from Ian K. 40.6(a)(7)(vi) requires a registered entity to provide these proposed provisions would not require other Shepherd, Alice Corporation, dated May 31, 2011 in the rule submission a brief explanation of any DCMs and SEFs to list or offer that swap, or an at 7. substantive opposing views, and Section 40.6(a)(8) economically equivalent swap, for trading. 42 Letter from Dennis Kelleher, Better Markets, requires a registered entity to provide, if requested 38 See Swap Transaction Compliance and Inc., dated Mar. 8, 2011 at 10–11. by Commission staff, additional evidence, Implementation Schedule: Clearing and Trade 43 E.g., Letter from Kevin Gould, Markit, dated information, or data that may be beneficial to the Execution Requirements under Section 2(h) of the Mar. 8, 2011 at 2; Letter from Craig Donohue, CME Commission in conducting due diligence of the CEA, 76 FR 58186 (Sep. 20, 2011), for the time Group Inc., dated Mar. 8, 2011 at 10; Letter from filing. John Gidman, Association of Institutional Investors, frame in which a swap would be subject to the trade 34 Sections 40.6(b) and (c). In determining dated Jun. 10, 2011 at 3; Letter from Mark whether to stay a certification, the Commission will execution requirement. The Commission notes that Vonderheide and Robert Creamer, Geneva Energy consider whether the rule presents novel or the available to trade determination may precede Markets, LLC, dated Jul. 29, 2011 at 2; Meeting complex issues, is accompanied by inadequate the clearing requirement and vice versa; however, between Commission staff and Evolution Markets explanation, or is potentially inconsistent with the the trade execution requirement would not be in and Ogilvy Government Relations, dated Jan. 19, CEA. Section 40.6(c)(1). effect until the clearing requirement takes effect. 2011.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77732 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

trading data.44 One commenter stated trading,’’ if at least one SEF has made ‘‘economically equivalent swap.’’ that the Commission should undertake the same or an economically equivalent Proposed §§ 37.10(c)(2) and 38.12(c)(2) empirical analyses of swap market swap available for trading.48 Many define the term ‘‘economically liquidity to set specific quantitative commenters to the SEF NPRM requested equivalent swap’’ as a swap that the SEF thresholds for metrics, such as that the Commission clarify the term or DCM determines to be economically minimum average daily trading volume economically equivalent swap and some equivalent with another swap after and number of transactions.45 Another commenters provided recommendations consideration of each swap’s material commenter asserted that objective as to how it should be defined.49 Several pricing terms. commenters recommended a stringent measures for determining when a swap 4. Annual Review of Available To Trade fungibility test to determine whether a is available to trade will provide for a Determinations—Proposed §§ 37.10(d) particular swap is economically consistent and meaningful and 38.12(d) assessment.46 equivalent to one made available to trade on another SEF, such that a a. Comments Regarding Annual Review b. Factors To Consider—Proposed derivatives clearing organization §§ 37.10(b) and 38.12(b) Several commenters to the SEF NPRM (‘‘DCO’’) would recognize the swaps as supported a Commission review Proposed §§ 37.10(b) and 38.12(b) mutually off-settable without residual requirement for swaps that have been state that, to make a swap available to market risk.50 Another commenter determined to be available to trade.53 trade, for purposes of Section 2(h)(8) of suggested that only identical swaps One commenter asserted that SEF the CEA, a SEF or DCM shall consider, should be made available to trade.51 available to trade determinations should as appropriate, the following factors Furthermore, one commenter cautioned be revisited and reconsidered because with respect to such swap: (1) Whether that without a stringent fungibility test the liquidity of swaps can experience there are ready and willing buyers and there may be unintended consequences, significant changes over time and can sellers; (2) The frequency or size of including unduly concentrating trading dry up completely in some transactions on SEFs, DCMs, or of volume on a single SEF or preventing circumstances.54 Similarly, another bilateral transactions; (3) The trading participants from entering into commenter stated that SEFs should volume on SEFs, DCMs, or of bilateral customized swaps in the same general revisit available to trade determinations transactions; (4) The number and types swap category.52 on a quarterly basis because the level of of market participants; (5) The bid/ask b. Economically Equivalent Swap— liquidity for a swap can vary spread; (6) The usual number of resting Proposed §§ 37.10(c) and 38.12(c) significantly over time.55 firm or indicative bids and offers; (7) b. Annual Review—Proposed Whether a SEF’s trading system or Under proposed §§ 37.10(c)(1) and §§ 37.10(d) and 38.12(d) platform or a DCM’s trading facility will 38.12(c)(1), upon a determination that a support trading in the swap; or (8) Any swap is available to trade, all other SEFs The Commission is proposing to other factor that the SEF or DCM may and DCMs listing or offering for trading retain the annual review and assessment consider relevant.47 No single factor such swap and/or any economically requirement set forth in the SEF NPRM would be dispositive, as the DCM or equivalent swap, must make those and also require that DCMs perform an SEF may consider any one factor or swaps available to trade for purposes of annual review and assessment. Regular several factors to make a swap available the trade execution requirement set reviews help ensure that DCMs and to trade. The Commission notes that, as forth in Section 2(h)(8) of the CEA. The SEFs routinely evaluate whether swaps Commission notes that if a DCM or SEF the swaps markets evolve and the previously determined to be available to makes a swap available to trade, these Commission gains experience with trade should continue to be treated in proposed provisions would not require overseeing these markets, it may that manner. Thus, in conducting this other DCMs and SEFs to list or offer that consider setting objective factors based review and assessment, the proposal swap, or an economically equivalent upon an empirical analysis of swap would require a SEF or DCM to consider swap, for trading. trading data in a future rulemaking. the factors in §§ 37.10(b) or 38.12(b), In this Notice, the Commission is respectively. The Commission would 3. Economically Equivalent Swap— proposing a definition for the term also encourage DCMs and SEFs, in Proposed §§ 37.10(c) and 38.12(c) conducting this review and assessment, 48 76 FR 1241. to evaluate their swaps that have not a. Comments Regarding Economically 49 Letter from Edward Rosen, Cleary Gottlieb Equivalent Swaps Steen & Hamilton LLP, on behalf of certain dealers, been determined to be available to trade dated Apr. 5, 2011 at 19; Letter from Robert Pickel and to submit them to the Commission In the SEF NPRM, the Commission and Kenneth Bentsen, International Swaps and as appropriate. Upon completion of the proposed that all SEFs are required to Derivatives Association and Securities Industry and annual review, a DCM or SEF would be treat a swap as ‘‘made available for Financial Markets Association, dated Mar. 8, 2011 at 9; Letter from Wholesale Market Brokers’ required to provide electronically to the Association, Americas, dated Mar. 8, 2011 at 18; Commission a report of such review and 44 E.g., Letter from Edward Rosen, Cleary Gottlieb Letter from Richard Whiting, Financial Services Steen & Hamilton LLP, on behalf of certain dealers, assessment, including any supporting Roundtable, dated Mar. 8, 2011 at 7; Letter from information or data, no later than 30 dated Apr. 5, 2011 at 18; Letter from Ben Patrick Durkin, Barclays Capital, dated Mar. 8, 2011 Macdonald, Bloomberg L.P., dated Jun. 3, 2011 at at 11. days after its fiscal year end. 3; Letter from Stuart Kaswell, Managed Funds 50 Letter from Edward Rosen, Cleary Gottlieb Association, dated Mar. 8, 2011 at 3–4; Letter from Steen & Hamilton LLP, on behalf of certain dealers, 53 E.g., Letter from Kevin Gould, Markit, dated American Benefits Council and Committee on dated Apr. 5, 2011 at 19; Letter from Robert Pickel Mar. 8, 2011 at 2; Letter from Dexter Senft, Morgan Investment of Employee Benefit Assets, dated Mar. and Kenneth Bentsen, International Swaps and Stanley, dated Mar. 2, 2011 at 4; Letter from Stuart 8, 2011 at 4–5. Derivatives Association and Securities Industry and Kaswell, Managed Funds Association, dated Mar. 8, 45 Letter from Edward Rosen, Cleary Gottlieb Financial Markets Association, dated Mar. 8, 2011 2011 at 4; Letter from Edward Rosen, Cleary Steen & Hamilton LLP, on behalf of certain dealers, at 9; Letter from Patrick Durkin, Barclays Capital, Gottlieb Steen & Hamilton LLP, on behalf of certain dated Apr. 5, 2011 at 18. dated Mar. 8, 2011 at 11. dealers, dated Apr. 5, 2011 at 18–19. 46 Letter from Ben Macdonald, Bloomberg L.P., 51 Letter from Richard Whiting, Financial 54 Letter from Kevin Gould, Markit, dated Mar. 8, dated Jun. 3, 2011 at 3. Services Roundtable, dated Mar. 8, 2011 at 7. 2011 at 2. 47 As noted above, the mere listing or trading of 52 Letter from Edward Rosen, Cleary Gottlieb 55 Letter from Edward Rosen, Cleary Gottlieb a swap on a DCM or SEF does not mean that the Steen & Hamilton LLP, on behalf of certain dealers, Steen & Hamilton LLP, on behalf of certain dealers, swap is available to trade. dated Apr. 5, 2011 at 19. dated Apr. 5, 2011 at 18–19.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77733

5. Notice to the Public of Available To a reasonable waiting period will • Is the Commission’s proposed Trade Determinations promote competition among SEFs by approach in §§ 37.10(b) and 38.12(b) a. Comments Regarding Notice to the reducing a SEF’s first-mover regarding the determination that a swap 61 Public advantage. For example, the waiting is available to trade appropriate? If not, period would allow other SEFs what approach is appropriate and why? Some commenters to the SEF NPRM additional time to build the required Should a SEF or DCM consider total requested that the Commission provide connectivity.62 A waiting period would open interest and notional outstanding notice to market participants that a also allow market participants the for similar tenors in §§ 37.10(b) and 56 swap is available to trade. One opportunity to make any related 38.12(b)? commenter, for example, suggested that technological and trading strategy • In evaluating the factors under the Commission provide public notice amendments.63 proposed §§ 37.10(b) and 38.12(b), that a swap will be deemed available to should the Commission allow a SEF or trade and on which platform(s).57 b. Effective Date DCM to consider the same swap or an Another commenter stated that In response to commenters who economically equivalent swap on ‘‘[w]ithout a notification system, market requested a waiting period before the another SEF or DCM? What are the participants may not know to cease effective date of a determination that a advantages and disadvantages of such over-the-counter transactions in these swap is available to trade or before an approach? Should a SEF or DCM swaps, stifling compliance with imposing the trade execution consider the amount of activity in the applicable rules.’’ 58 requirement under CEA Section 2(h)(8), same swap or an economically b. Public Notice the Commission has issued a notice of equivalent swap available primarily or proposed rulemaking that proposes a solely in bilateral transactions? In consideration of the comments • Should the Commission allow a received, the Commission notes that schedule to phase in compliance with the trade execution requirement under SEF or DCM to submit an available to there is a process for notifying the trade determination under §§ 37.10(a) or public that a DCM or SEF has made a CEA Section 2(h)(8).64 Under that proposed rulemaking, a swap 38.12(a), if such SEF or DCM does not swap available to trade. Sections 40.5 itself list the subject swap for trading? and 40.6 of the Commission’s transaction shall be subject to the CEA Section 2(h)(8) trade execution If so, in evaluating the factors under regulations require DCMs and SEFs to §§ 37.10(b) or 38.12(b), should the requirement upon the later of the post a notice and a copy of rule Commission allow the SEF or DCM to following: (1) the applicable deadline submissions on their Web site consider the same swap or an established under the compliance concurrent with the filing of the economically equivalent swap on 59 schedule for the clearing requirement or submissions with the Commission. another SEF or DCM? What are the (2) 30 days after the swap is first made The Commission, consistent with advantages and disadvantages of such available to trade on either a SEF or current practice, will also post DCM and an approach? Should a SEF or DCM DCM.65 SEF rule submission filings on its Web consider the amount of activity in the site. The Commission is currently C. Comment Requested same swap or an economically assessing the feasibility of posting equivalent swap available primarily or notices of all swaps that are determined The Commission requests and will solely in bilateral transactions? to be available to trade on an easily consider comments only on proposed • When a DCM or SEF makes a swap accessible page on its Web site. regulations §§ 37.10 and 38.12. The available to trade, should all other Commission may consider alternatives DCMs and SEFs listing or offering for 6. Effective Date of Available To Trade to the proposed regulations and is Determinations trading such swap and/or any requesting comment on the following economically equivalent swap be a. Comments Regarding Effective Date questions: required to make those swaps available Commenters to the SEF NPRM • Should the Commission allow a to trade? What would be the economic requested a waiting period before the SEF or DCM to submit its available to impact on those DCMs and SEFs that effective date of the available to trade trade determination with respect to a would be required to make same swaps determinations or before imposing the group, category, type, or class of swaps and/or economically equivalent swaps trade execution requirement under CEA based on the factors in §§ 37.10(b) or available to trade? Section 2(h)(8) so that other SEFs have 38.12(b)? How should the Commission • If a SEF or DCM is required to make adequate time to list or offer the swap define group, category, type, or class of an economically equivalent swap or any economically equivalent swap for swaps? available to trade, should that SEF or trading.60 These commenters stated that DCM be required to submit, under part establish a waiting period after the available to 40 procedures, its reasoning for 56 E.g., Letter from Dexter Senft, Morgan Stanley, trade determination and before the trade execution deciding that a certain swap is or is not dated Mar. 2, 2011 at 4; Letter from Timothy requirement becomes effective. economically equivalent to another Cameron, Securities Industry and Financial Markets 61 Letter from Kevin Budd and Todd Lurie, Association Asset Management Group, dated Mar. MetLife, dated Mar. 8, 2011 at 4; Letter from Dexter swap? Should a SEF or DCM be required 8, 2011 at 12; Letter from Wayne Pestone, FX Senft, Morgan Stanley, dated Mar. 2, 2011 at 4; to consider the factors under §§ 37.10(b) Alliance Inc., dated Nov. 4, 2011 at 9–10. Letter from Stuart Kaswell, Managed Funds or 38.12(b)? Should a SEF or DCM be 57 Letter from Dexter Senft, Morgan Stanley, dated Association, dated Mar. 8, 2011 at 3. able to use the factors under §§ 37.10(b) Mar. 2, 2011 at 4. 62 Letter from Stuart Kaswell, Managed Funds or 38.12(b) to submit to the Commission 58 Letter from Timothy Cameron, Securities Association, dated Mar. 8, 2011 at 3. Industry and Financial Markets Association Asset 63 Letter from Kevin Budd and Todd Lurie, for consideration that an economically Management Group, dated Mar. 8, 2011 at 12. MetLife, dated Mar. 8, 2011 at 4. equivalent swap should not be subject 59 See Sections 40.5(a)(6) and 40.6(a)(2). 64 See Swap Transaction Compliance and to the requirement under §§ 37.10(c)(1) 60 Letter from Kevin Budd and Todd Lurie, Implementation Schedule: Clearing and Trade or 38.12(c)(1)? Should a DCM or SEF MetLife, dated Mar. 8, 2011 at 4; Letter from Dexter Execution Requirements under Section 2(h) of the provide the Commission notice that an Senft, Morgan Stanley, dated Mar. 2, 2011 at 4; CEA, 76 FR 58186 (Sep. 20, 2011). Comments to Letter from Stuart Kaswell, Managed Funds this notice of proposed rulemaking were due by economically equivalent swap has been Association, dated Mar. 8, 2011 at 3. Some of these November 4, 2011. made available to trade? If so, should commenters requested that the Commission 65 Id. the Commission provide notice to the

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77734 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

public? If so, how? How would market it designates a contract market or customers.’’ 70 The Commission is also participants conducting bilateral registers a SEF only if the entity meets required to protect certain information transactions know that an economically a number of specific criteria, including contained in a government system of equivalent swap has been made the expenditure of sufficient resources records according to the Privacy Act of available to trade? to establish and maintain an adequate 1974.71 • Is the Commission’s proposed self-regulatory program.68 Because 1. Information Provided by Reporting definition of the term ‘‘economically DCMs and SEFs are required to Entities/Persons equivalent swap’’ appropriate? If not, demonstrate compliance with Core how should the Commission revise the Principles, including principles The proposed regulations require definition as applicable to proposed concerning the maintenance or SEFs and DCMs to collect and submit to §§ 37.10 and 38.12 and why? Are there expenditure of financial resources, the the Commission information concerning other factors that the Commission Commission previously determined that available to trade determinations should consider when defining the term SEFs, like DCMs, are not ‘‘small pursuant to §§ 37.10 and 38.12. For economically equivalent swap? Should entities’’ for the purposes of the RFA. instance, SEFs and DCMs must submit the Commission require that DCMs and Accordingly, the Chairman, on behalf available to trade determinations to the SEFs consider specific material pricing of the Commission, hereby certifies Commission as rules under part 40 terms? If so, what terms and why? For pursuant to 5 U.S.C. 605(b) that the pursuant to proposed §§ 37.10(a) and instance, should DCMs and SEFs proposed rules will not have a 38.12(a). SEFs and DCMs must also consider same tenor or same underlying significant economic impact on a submit annual reports to the instrument? Should the Commission or substantial number of small entities. Commission pursuant to proposed DCMs and SEFs make the determination The Commission invites public §§ 37.10(d) and 38.12(d). of which swaps are economically comment on this determination. The Commission has estimated the final information collection burdens on equivalent? B. Paperwork Reduction Act • Is the Commission’s proposal that DCMs and SEFs below. These estimates DCMs and SEFs conduct reviews and The Paperwork Reduction Act account for the following: (1) The assessments appropriate? If not, what is (‘‘PRA’’) 69 imposes certain number of respondents; and (2) the appropriate and why? requirements on federal agencies in average hours required to produce each • Should the Commission specify a connection with conducting or response. The Commission estimates process whereby a swap that has been sponsoring any collection of that 50 registered entities will be determined to be available to trade may information as defined by the PRA. The required to file rule submissions and be determined to no longer be available Commission may not conduct or annual reports. to trade? If so, should the Commission sponsor, and a registered entity is not SEFs and DCMs must submit use the rule submission procedure required to respond to, a collection of available to trade determinations to the under part 40 for this process and why? information unless it displays a Commission as rules under part 40 Please explain the details of this currently valid Office of Management pursuant to proposed §§ 37.10(a) and approach, including who would make and Budget (‘‘OMB’’) control number. 38.12(a). The Commission previously the determination that a swap is no This proposed rulemaking will result in estimated the hourly burdens for DCMs longer available to trade. Should such a new collection of information and SEFs to comply with part 40. While determination apply to all DCMs and requirements within the meaning of the the Commission has no way of knowing SEFs universally or should it only apply PRA. The Commission therefore is the exact hourly burden upon a to the particular DCM or SEF that seeks submitting this proposal to OMB for registered entity prior to to no longer make a swap available to review in accordance with 44 U.S.C. implementation of the regulations trade? What are the advantages and 3507(d) and 5 CFR 1320.11. The title for governing that registered entity, the disadvantages of such approach? If the the collection of information is ‘‘Parts Commission estimates that the burden Commission should not specify a 37 and 38—Process for a Swap for a SEF or DCM under proposed process to no longer make a swap Execution Facility or Designated §§ 37.10(a) and 38.12(a) will be similar available to trade, please explain why. Contract Market to Make a Swap to the previously estimated hours of Available to Trade.’’ The OMB has not burden under part 40—2.00 hours. III. Related Matters yet assigned this collection a control However, the Commission notes that A. Regulatory Flexibility Act number. DCMs and SEFs would have to review Many of the responses to this new The Regulatory Flexibility Act certain factors and data (if applicable) to collection of information are mandatory. make a swap available to trade so these (‘‘RFA’’) requires that agencies consider The Commission protects proprietary whether the rules they propose will submissions may take additional time. information according to the Freedom of Therefore, the Commission estimates have a significant economic impact on Information Act and 17 CFR part 145, a substantial number of small entities that the hourly burden for a SEF or DCM ‘‘Commission Records and under proposed §§ 37.10(a) and 38.12(a) and, if so, provide a regulatory Information.’’ In addition, Section will be as follows: flexibility analysis respecting the 8(a)(1) of the CEA strictly prohibits the impact.66 The Commission previously Estimated number of respondents: 50. Commission, unless specifically Estimated average hours per response: determined that DCMs and SEFs are not authorized by the CEA, from making 8.00. ‘‘small entities’’ for purposes of the public ‘‘data and information that The Commission recognizes that 67 RFA. In determining that these would separately disclose the business DCMs and SEFs may submit several rule registered entities are not ‘‘small transactions or market positions of any submission filings per year. At this time, entities,’’ the Commission reasoned that person and trade secrets or names of it is not feasible to estimate the number of rule submission filings per year, on 66 5 U.S.C. 601 et seq. 68 See, e.g., Core Principle 2 applicable to DCMs average, per DCM or SEF as the number 67 See 17 CFR part 40 Provisions Common to under Section 735 of the Dodd-Frank Act and Core Registered Entities, 75 FR 67282 (Nov. 2, 2010); see Principle 2 applicable to SEFs under Section 733 also 47 FR 18618, 18619 (Apr. 30, 1982) and 66 FR of the Dodd-Frank Act. 70 7 U.S.C. 12(a)(1). 45604, 45609 (Aug. 29, 2001). 69 44 U.S.C. 3501 et seq. 71 5 U.S.C. 552a.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77735

of swap contracts that will be traded on whether there are ways to enhance the additional operational and monitoring a DCM or SEF and the number of those quality, utility, or clarity of the costs to DCMs and SEFs. The swaps that a DCM or SEF will determine information proposed to be collected; Commission requests commenters to make available to trade is presently and (4) minimize the burden of the provide quantitative estimates of the unknown. proposed collections of information on additional costs and benefits to DCMs Proposed §§ 37.10(d) and 38.12(d) DCMs and SEFs, including through the and SEFs from this Notice. require SEFs and DCMs to submit use of appropriate automated, Under these proposed regulations, annual reports, including any electronic, mechanical, or other DCMs and SEFs may incur additional supporting information and data, to the technological information collection costs in undertaking evaluations of Commission of their review and techniques, e.g., permitting electronic whether a swap is available to trade and assessment of the swaps they made submission of responses. submitting to the Commission their available to trade. The Commission The public and other federal agencies determinations with respect to such previously estimated the number of may submit comments directly to the swaps as rule submission filings filings and the hourly burdens for Office of Information and Regulatory pursuant to the procedures under part submissions by each DCO regarding Affairs, OMB, by fax at (202) 395–6566 40 of the Commission’s regulations. swaps that they plan to accept for or by email at Proposed §§ 37.10(b) and 38.12(b) clearing under Section 39.5.72 The [email protected]. Please require SEFs and DCMs to consider Commission estimated that each DCO provide the Commission with a copy of certain factors to make a swap available will submit to the Commission one submitted comments so that they can be to trade. Proposed §§ 37.10(a) and filing annually for the swaps that they summarized and addressed in the final 38.12(a) require SEFs and DCMs to plan to accept for clearing. While the rule. Refer to the Addresses section of submit to the Commission their Commission has no way of knowing the this Notice for comment submission determinations with respect to those exact hourly burden upon a registered instructions to the Commission. A copy swaps that they make available to trade entity prior to implementation of the of the supporting statements for the as a rule pursuant to the procedures regulations governing that registered collections of information discussed under part 40 of the Commission’s entity, the Commission estimates that above may be obtained by visiting regulations. the burden for a SEF or DCM under RegInfo.gov. OMB is required to make a The above-described assessment and proposed §§ 37.10(d) and 38.12(d) will decision concerning the collection of submission may be performed internally be similar to the previously estimated information between 30 and 60 days by one compliance personnel of the hours of burden under Section 39.5— after publication of this release. DCM or SEF. The Commission estimates 40.00 hours. The Commission estimates Therefore, a comment to OMB is best that it would take the compliance the burden for SEFs and DCMs under assured of receiving full consideration if personnel approximately eight hours, on proposed §§ 37.10(d) and 38.12(d) as OMB (and the Commission) receives it average, to assess and submit the follows: within 30 days of publication of this available to trade determination per rule Estimated number of respondents: 50. Notice. Nothing in the foregoing affects submission filing. The compliance Annual responses by each the deadline enumerated above for personnel would have to, for example, respondent: 1. public comment to the Commission on consider factors to make a swap Estimated average hours per response: the proposed regulations. available to trade and write a cover 40. C. Consideration of Costs and Benefits submission to the Commission, Aggregate annual reporting burden including a description of the swap or hours (for all respondents): 2,000. In this section, the Commission swaps that are covered and an The Commission invites public addresses the costs and benefits of its explanation and analysis of the comment on the accuracy of its estimate proposed regulations and also considers available to trade determination. The of the collection requirements that the five broad areas of market and Commission notes that this is a general would result from the proposed public concern under Section 15(a) of estimate and that it is difficult to 73 regulations. the CEA within the context of the determine with reasonable precision the proposed regulations. 2. Information Collection Comments number of hours involved given the In this Notice, the Commission novelty of this available to trade The Commission invites the public considers the costs and benefits that process. The Commission estimates the and other federal agencies to comment result from the regulations proposed cost per hour for one compliance on the information collection herein; these costs and benefits are in personnel to be $43.25 per hour.74 requirements proposed in this Notice. addition to the costs and benefits Therefore, the Commission estimates Pursuant to 44 U.S.C. 3506(c)(2)(B), the associated with the SEF NPRM as that it would cost each DCM and SEF an Commission solicits comments to: (1) previously proposed. In other words, additional $346.00 per rule submission Evaluate whether the proposed the Commission is only considering the filing to comply with the proposed collections of information are necessary discrete costs and benefits of the requirements. for the proper performance of the regulations specifically proposed in this Certain additional factors may affect functions of the Commission, including Notice. To this end, the Commission the cost estimates noted above. For whether the information will have solicits comments only on the costs and example, swaps with complex terms practical utility; (2) evaluate the benefits of the proposed requirements and conditions or requests for accuracy of the estimated burden of the herein; only comments pertaining to proposed information collection these cost and benefit issues will be 74 See Report on Management & Professional requirements, including the degree to considered as part of this Notice. Earnings in the Securities Industry 2010, Securities which the methodology and the Industry and Financial Markets Association at 4 1. Costs of Proposed Regulations assumptions that the Commission (Sep. 2010). The report lists the average total annual The Commission anticipates that the compensation for a compliance specialist employed were valid; (3) determine (intermediate) as $59,878. The Commission proposed regulations will result in some estimated the personnel’s hourly cost by assuming 72 See Process for Review of Swaps for Mandatory an 1,800 hour work year and by multiplying by 1.3 Clearing, 76 FR 44464 (Jul. 26, 2011). 73 7 U.S.C. 19(a). to account for overhead and other benefits.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77736 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

additional information or questions personnel to be $43.25 per hour. protect the public interest or to from Commission staff regarding the Therefore, the Commission estimates effectuate any of the provisions or available to trade determination may that it would cost each DCM an accomplish any of the purposes of the result in higher costs. additional $1,730.00 per review to CEA.77 The Commission also recognizes that comply with the proposed a. Protection of Market Participants and DCMs and SEFs may submit several rule requirements. submission filings per year. At this time, the Public it is not feasible to estimate the number 2. Benefits of Proposed Regulations The proposed regulations are of rule submission filings per year per The proposed regulations are intended to provide certainty for DCMs, DCM or SEF as the number of swap expected to provide needed certainty for SEFs, and market participants for the contracts that will be traded on a DCM DCMs, SEFs, and market participants for available to trade process. Under the or SEF and the number of those swaps the available to trade process. The proposed regulations, a SEF or DCM that a DCM or SEF will determine to proposed regulations, for example, set must consider certain factors specified make available to trade is presently forth the procedure to make a swap by the Commission under Sections unknown. available to trade, the factors to consider 37.10(b) or 38.12(b), respectively, to Under proposed §§ 37.10(c) or in making a swap available to trade, and make a swap available to trade. A DCM 38.12(c), if a SEF or DCM makes a swap visibility into which swaps are available or SEF must also submit available to available to trade, all SEFs and DCMs to trade. Additionally, the proposed trade determinations to the listing or offering such swap and/or any regulations are expected to promote the Commission, either for approval or economically equivalent swap, shall trading of swaps on DCMs and SEFs and under certification procedures, pursuant make those swaps available to trade for promote competition among these to the rule filing procedures of part 40 purposes of Section 2(h)(8) of the CEA. entities. DCMs and SEFs, who may be of the Commission’s regulations. Part 40 Further, such contracts may not be most familiar with the trading of swaps, also requires DCMs and SEFs to post a traded on a bilateral basis. In order to would make swaps available to trade notice and a copy of rule submissions comply with this requirement, DCMs, based on factors specified by the on their Web site concurrent with the SEFs, and market participants would Commission. DCMs and SEFs have filing of the submissions with the have to monitor and identify those discretion to consider any one factor or Commission. The Commission, contracts that are either the same or several factors to make a swap available consistent with current practice, will economically equivalent to that swap to trade. These aspects of the proposed also post DCM and SEF rule submission made available to trade. At this time, it regulations are intended to facilitate filings on its Web site. Therefore, under is not feasible to estimate the number of DCMs and SEFs to make swaps the proposed regulations, DCMs, SEFs, hours involved given the novelty of the available to trade, which is expected to and market participants would know available to trade process. promote the trading of swaps on DCMs the factors to consider in making a swap The Commission seeks comment on and SEFs and competition among these available to trade, the procedure to all aspects of the cost estimates entities. Finally, the proposed make a swap available to trade, and the provided above. Specifically, the regulations are expected to promote swaps that are available to trade, which Commission seeks comment on the price discovery because those swaps provides certainty to the available to period of time, the number and type of that DCMs and SEFs make available to trade process. This certainty also personnel, and the cost estimates for trade would effectively be subject to the promotes the protection of market DCMs and SEFs to comply with the trade execution requirement, which participants by ensuring that there is assessment process as described above. would require them to trade solely on transparency in the available to trade The Commission also seeks comment on DCMs and SEFs. process. the number of hours per year, on The Commission seeks comment on The proposed regulations are also average, that a SEF or DCM will spend all aspects of the benefits of its proposed expected to promote the protection of monitoring and evaluating swap regulations in this Notice. market participants and the public by providing for Commission review and contracts in order to comply with 3. Section 15(a) Discussion proposed §§ 37.10(c) and 38.12(c). oversight and public participation. Proposed § 38.12(d) would require Section 15(a) of the CEA 76 requires Under the proposed regulations, the DCMs to incur additional costs to the Commission to consider the costs Commission would either approve or conduct an annual review and and benefits of its action before review the DCM’s or SEF’s available to assessment of each swap it has made promulgating a regulation under the trade determination. To facilitate this available to trade and submit its review CEA. Section 15(a) of the CEA specifies approval or review, the proposed and assessment to the Commission.75 that the costs and benefits shall be regulations require DCMs and SEFs to This assessment may be performed evaluated in light of five broad areas of provide the Commission with a brief internally by one compliance personnel market and public concern: (a) explanation of any substantive opposing of the DCM. The Commission estimates Protection of market participants and views in rule filings and, if the that it would take the compliance the public; (b) efficiency, Commission extends the rule review personnel approximately 40 hours, on competitiveness and financial integrity period under the self-certification average, to conduct this review and of futures markets; (c) price discovery; procedure, then there will be a 30-day assessment. The Commission notes that (d) sound risk management practices; public comment period. These aspects this is a general estimate and that it is and (e) other public interest of the proposed regulations are expected difficult to determine with reasonable considerations. The Commission may in to provide appropriate oversight, and precision the number of hours involved its discretion give greater weight to any may increase the transparency, of DCM given the novelty of this process. As one of the five enumerated areas and and SEF available to trade noted above, the Commission estimates could in its discretion determine that, the cost per hour for one compliance notwithstanding its costs, a particular 77 See, e.g., Fisherman’s Doc Co-op., Inc v. Brown, 75 F.3d 164 (4th Cir. 1996); Center for Auto Safety regulation is necessary or appropriate to v. Peck, 751 F.2d 1336 (DC Cir. 1985) (noting that 75 The SEF NPRM imposed a review and an agency has discretion to weigh factors in assessment process for SEFs. 76 7 U.S.C. 19(a). undertaking cost-benefit analysis).

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77737

determinations. This oversight and 17 CFR Part 38 (2) For purposes of this section, the transparency is expected to increase the Designated contract markets, term ‘‘economically equivalent swap’’ likelihood that all important issues will Registered entities, Reporting and means a swap that the swap execution be identified and weighed by the recordkeeping requirements, Swaps. facility or designated contract market Commission, which may protect market For the reasons stated in the determines to be economically participants and the public. preamble, the Commission proposes to equivalent with another swap after b. Efficiency, Competitiveness, and amend 17 CFR parts 37 and 38 as consideration of each swap’s material Financial Integrity of the Markets follows: pricing terms. (d) Annual review. (1) A swap The proposed regulations are PART 37—SWAP EXECUTION execution facility shall conduct an expected to promote the trading of FACILITIES annual review and assessment of each swaps on DCMs and SEFs and promote swap it has made available to trade to competition among these entities. DCMs 1. The authority citation for part 37 determine whether or not each swap and SEFs, who may be most familiar continues to read as follows: should continue to be available to trade. with the trading of swaps, would make Authority: 7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a– The annual review shall be conducted at swaps available to trade based on factors 2, 7b–3 and 12a, as amended by Titles VII the swap execution facility’s fiscal year specified by the Commission. DCMs and and VIII of the Dodd-Frank Wall Street end. SEFs would have discretion to consider Reform and Consumer Protection Act, Pub. L. (2) When conducting its review and 111–203, 124 Stat. 1376 (2010). any one factor or several factors to make assessment pursuant to paragraph (d)(1) a swap available to trade. These aspects 2. The heading of part 37 is revised of this section, a swap execution facility of the proposed regulations are intended to read as set forth above. shall consider the factors specified in to facilitate DCMs and SEFs to make 3. Add new § 37.10 to read as follows: paragraph (b) of this section. swaps available to trade, which is (3) The swap execution facility shall expected to promote the trading of § 37.10 Process for a swap execution facility to make a swap available to trade. provide electronically to the swaps on DCMs and SEFs and Commission a report of its review and competition among these entities. (a) Required submission. A swap execution facility that makes a swap assessment, including any supporting Additionally, the requirement that information or data, not more than 30 DCMs and SEFs must make the same available to trade in accordance with paragraph (b) of this section, shall days after the swap execution facility’s swap and any economically equivalent fiscal year end. swap available to trade may increase the submit to the Commission its determination with respect to such number of swaps trading on DCMs and PART 38—DESIGNATED CONTRACT swap pursuant to the procedures under SEFs, which is expected to promote the MARKETS trading of swaps on DCMs and SEFs. part 40 of this chapter. (b) Factors to consider. To make a 4. The authority citation for part 38 c. Price Discovery swap available to trade, for purposes of continues to read as follows: As mentioned above, the proposed Section 2(h)(8) of the Commodity Exchange Act, a swap execution facility Authority: 7 U.S.C. 1a, 2, 6, 6a, 6c, 6d, 6e, regulations are expected to promote the 6f, 6g, 6i, 6j, 6k, 6l, 6m, 6n, 7, 7a–2, 7b, 7b– trading of swaps on DCMs and SEFs. shall consider, as appropriate, the 1, 7b–3, 8, 9, 15, and 21, as amended by the Those swaps that DCMs and SEFs make following factors with respect to such Dodd-Frank Wall Street Reform and available to trade could be subject to the swap: Consumer Protection Act, Pub. L. 111–203, trade execution requirement. These (1) Whether there are ready and 124 Stat. 1376 (2010). swaps would be required to trade solely willing buyers and sellers; (2) The frequency or size of 5. Add new § 38.12 to read as follows: on DCMs and SEFs, which would transactions on swap execution promote price discovery. § 38.12 Process for a designated contract facilities, designated contract markets, market to make a swap available to trade. d. Sound Risk Management Practices or of bilateral transactions; (a) Required submission. A designated The proposed regulations are not (3) The trading volume on swap contract market that makes a swap execution facilities, designated contract expected to affect sound risk available to trade in accordance with markets, or of bilateral transactions; management practices. paragraph (b) of this section, shall (4) The number and types of market e. Other Public Interest Considerations participants; submit to the Commission its determination with respect to such The proposed regulations are not (5) The bid/ask spread; (6) The usual number of resting firm swap pursuant to the procedures under expected to affect public interest or indicative bids and offers; part 40 of this chapter. considerations other than those (7) Whether a swap execution (b) Factors to consider. To make a identified above. facility’s trading system or platform will swap available to trade, for purposes of The Commission specifically invites support trading in the swap; or Section 2(h)(8) of the Commodity public comment on its application of (8) Any other factor that the swap Exchange Act, a designated contract the criteria contained in Section 15(a) of execution facility may consider market shall consider, as appropriate, the CEA and further invites interested relevant. the following factors with respect to parties to submit any data, quantitative (c) Economically equivalent swap. (1) such swap: or qualitative, that they may have Upon a determination that a swap is (1) Whether there are ready and concerning the costs and benefits of the available to trade, all other swap willing buyers and sellers; proposed regulations. execution facilities and designated (2) The frequency or size of List of Subjects contract markets listing or offering for transactions on designated contract trading such swap and/or any markets, swap execution facilities, or of 17 CFR Part 37 economically equivalent swap, shall bilateral transactions; Registered entities, Reporting and make those swaps available to trade for (3) The trading volume on designated recordkeeping requirements, Swap purposes of Section 2(h)(8) of the contract markets, swap execution execution facilities, Swaps. Commodity Exchange Act. facilities, or of bilateral transactions;

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77738 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

(4) The number and types of market voted in the affirmative; Commissioner Washington, DC 20004–1111. participants; Sommers voted in the negative. Telephone number: (202) 272–0016 (5) The bid/ask spread; Appendix 2—Statement of Chairman (voice); (202) 272–0074 (TTY). (6) The usual number of resting firm Gary Gensler Electronic mail address: or indicative bids and offers; [email protected]. (7) Whether a designated contract I support the proposed rule to implement market’s trading facility will support a process for designated contract markets SUPPLEMENTARY INFORMATION: On trading in the swap; or (DCMs) and swap execution facilities (SEFs) December 8, 2011, the Access Board (8) Any other factor that the to make a swap ‘‘available to trade.’’ The published an advance notice of designated contract market may Dodd-Frank Wall Street Reform and Consumer Protection Act requires that swaps proposed rulemaking in the Federal consider relevant. Register to continue the process of (c) Economically equivalent swap. (1) subject to the clearing requirement be traded on a DCM or SEF, unless no DCM or SEF updating its guidelines for Upon a determination that a swap is makes the swap available to trade or the telecommunications equipment covered available to trade, all other designated swap transaction is subject to the end-user by Section 255 of the contract markets and swap execution exception. This proposal will bring Telecommunications Act of 1996 and its facilities listing or offering for trading transparency to the process for making a standards for electronic and information such swap and/or any economically swap available to trade on a DCM or SEF. It equivalent swap, shall make those also will provide appropriate oversight of the technology covered by Section 508 of swaps available to trade for purposes of process through Commodity Futures Trading the Rehabilitation Act Amendments of Section 2(h)(8) of the Commodity Commission review. 1998. 76 FR 76640 (December 8, 2011). Exchange Act. [FR Doc. 2011–31646 Filed 12–13–11; 8:45 am] The comment period for the advance (2) For purposes of this section, the BILLING CODE 6351–01–P notice closes on March 7, 2012. The term ‘‘economically equivalent swap’’ Board will hold two public hearings means a swap that the designated during the comment period. The first contract market or swap execution ARCHITECTURAL AND hearing will be in Washington, DC in facility determines to be economically TRANSPORTATION BARRIERS the Access Board’s conference room at equivalent with another swap after COMPLIANCE BOARD 1331 F Street NW., suite 800, consideration of each swap’s material Washington, DC 20004. The second pricing terms. 36 CFR Parts 1193 and 1194 (d) Annual review. (1) A designated hearing will be held in conjunction with contract market shall conduct an annual [Docket No. 2011–07] the 27th Annual International review and assessment of each swap it RIN 3014–AA37 Technology and Persons with has made available to trade to determine Disabilities Conference (CSUN whether or not each swap should Telecommunications Act Accessibility Conference) in San Diego, CA at the continue to be available to trade. The Guidelines; Electronic and Information Manchester Grand Hyatt Hotel, One annual review shall be conducted at the Technology Accessibility Standards Market Place, San Diego, CA 92101. designated contract market’s fiscal year AGENCY: Architectural and The hearing locations are accessible to end. Transportation Barriers Compliance individuals with disabilities. Sign (2) When conducting its review and language interpreters and real-time assessment pursuant to paragraph (d)(1) Board. ACTION: Notice of hearing. captioning will be provided. For the of this section, a designated contract comfort of other participants, persons market shall consider the factors SUMMARY: The Architectural and attending the hearings are requested to specified in paragraph (b) of this Transportation Barriers Compliance refrain from using perfume, cologne, section. Board (Access Board) will hold two (3) The designated contract market and other fragrances. To pre-register to public hearings on its recent Advance shall provide electronically to the testify, please contact Kathy Johnson at Notice of Proposed Rulemaking to Commission a report of its review and (202) 272–0041, (202) 272–0082 (TTY), update its Telecommunications Act assessment, including any supporting or [email protected]. More Accessibility Guidelines and its information or data, not more than 30 information and any updates to the Electronic and Information Technology days after the designated contract hearings will be posted on the Access Accessibility Standards. market’s fiscal year end. Board’s Web site at http://www.access- DATES: The hearings will be held on the board.gov/508.htm. Issued in Washington, DC, on December 5, following dates: 2011, by the Commission. David M. Capozzi, David A. Stawick, 1. January 11, 2012, 9 to Noon, Executive Director. Secretary of the Commission. Washington, DC. 2. March 1, 2012, 1 to 3 p.m., San [FR Doc. 2011–32020 Filed 12–13–11; 8:45 am] Note: The following appendices will not Diego, CA. BILLING CODE 8150–01–P appear in the Code of Federal Regulations ADDRESSES: The hearing locations are: 1. Washington, DC: Access Board Appendices to Process for a Designated conference room, 1331 F Street NW., Contract Market or Swap Execution suite 800, Washington, DC 20004. Facility To Make a Swap Available To 2. San Diego, CA: Manchester Grand Trade—Commissioners Voting Hyatt Hotel, One Market Place, San Summary and Statements of Diego, CA 92101. Commissioners FOR FURTHER INFORMATION CONTACT: Tim Appendix 1—Commissioners Voting Creagan, Office of Technical and Summary Information Services, Architectural and On this matter, Chairman Gensler and Transportation Barriers Compliance Commissioners Chilton, O’Malia and Wetjen Board, 1331 F Street NW., suite 1000,

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00012 Fmt 4702 Sfmt 9990 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77739

ENVIRONMENTAL PROTECTION Instructions: Direct your comments to Planning Unit, U.S. Environmental AGENCY Docket ID No. EPA–R01–OAR–2011- Protection Agency, EPA New England 0879. EPA’s policy is that all comments Regional Office, 5 Post Office Square, 40 CFR Part 52 received will be included in the public Suite 100, Boston, MA 02109–3912, docket without change and may be telephone number (617) 918–1664, fax [EPA–R01–OAR–2011–0879; A–1–FRL– made available online at http:// number (617) 918–0664, email 9505–9] www.regulations.gov, including any [email protected]. Approval and Promulgation of Air personal information provided, unless SUPPLEMENTARY INFORMATION: Quality Implementation Plans; the comment includes information Throughout this document whenever Massachusetts and New Hampshire; claimed to be Confidential Business ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean Determination of Attainment of the Information (CBI) or other information EPA. One-Hour Ozone Standard whose disclosure is restricted by statute. Organization of this document. The Do not submit through http:// following outline is provided to aid in AGENCY: Environmental Protection www.regulations.gov, or email, locating information in this preamble: Agency (EPA). information that you consider to be CBI I. What is EPA proposing? ACTION: Proposed rule. or otherwise protected. The http:// II. What is the background for this proposed www.regulations.gov Web site is an action? SUMMARY: The EPA is proposing to ‘‘anonymous access’’ system, which III. What is EPA’s analysis of data for determine that the Boston-Lawrence- means EPA will not know your identity purposes of determining attainment of Worcester (Eastern Massachusetts), MA– or contact information unless you the one-hour ozone standard? NH serious one-hour ozone provide it in the body of your comment. A. How does EPA compute whether an nonattainment area met the applicable If you send an email comment directly area meets the one-hour ozone standard? deadline of November 15, 2007, for B. EPA’s Analysis of the One-Hour Ozone to EPA without going through http:// Data for the Boston-Lawrence-Worcester, attaining the one-hour National www.regulations.gov your email address MA-NH Area Ambient Air Quality Standard (NAAQS) will be automatically captured and IV. Proposed Determination for ozone. This proposed determination included as part of the comment that is V. Statutory and Executive Order Reviews is based upon complete, certified, placed in the public docket and made I. What is EPA proposing? quality-assured ambient air quality available on the Internet. If you submit monitoring data for the 2005–2007 an electronic comment, EPA EPA is proposing to determine that monitoring period showing that the area recommends that you include your the Boston-Lawrence-Worcester (Eastern had an expected ozone exceedance rate name and other contact information in Massachusetts), MA-NH area attained below the level of the now revoked one- the body of your comment and with any the one hour ozone National Ambient hour ozone NAAQS during that period disk or CD–ROM you submit. If EPA Air Quality Standard (NAAQS) by the and therefore attained the standard by cannot read your comment due to applicable attainment date, November its applicable deadline. EPA is technical difficulties and cannot contact 15, 2007. This proposed determination proposing this determination under the you for clarification, EPA may not be is based upon complete, quality-assured Clean Air Act. able to consider your comment. and certified air quality monitoring data DATES: Written comments must be Electronic files should avoid the use of for the 2005 through 2007 ozone received on or before January 13, 2012. special characters, any form of seasons. ADDRESSES: Submit your comments, encryption, and be free of any defects or II. What is the background for this identified by Docket ID Number EPA– viruses. proposed action? Docket: All documents in the R01–OAR–2011–0879 by one of the EPA designated the Boston-Lawrence- electronic docket are listed in the http:// following methods: Worcester, MA-NH area as 1. http://www.regulations.gov: Follow www.regulations.gov index. Although nonattainment for one-hour ozone the on-line instructions for submitting listed in the index, some information is following the enactment of the Clean comments. not publicly available, i.e., CBI or other Air Act (CAA) Amendments of 1990. 2. Email: [email protected]. information whose disclosure is Most areas of the country that EPA 3. Fax: (617) 918–0047. restricted by statute. Certain other designated nonattainment for the one- 4. Mail: ‘‘Docket Identification material, such as copyrighted material, hour ozone NAAQS were classified by Number EPA–R01–OAR–2011- 0879,’’ is not placed on the Internet and will be operation of law as marginal, moderate, Anne Arnold, U.S. Environmental publicly available only in hard copy serious, severe, or extreme, depending Protection Agency, EPA New England form. Publicly available docket on the severity of the area’s air quality Regional Office, 5 Post Office Square, materials are available either problem. (See CAA sections 107(d)(1)(C) Suite 100 (mail code: OEP05–2), Boston, electronically in http:// and 181(a).) The Boston-Lawrence- MA 02109–3912. www.regulations.gov or in hard copy at Worcester, MA-NH area was classified 5. Hand Delivery or Courier. Deliver Office of Ecosystem Protection, U.S. as serious. The one-hour ozone your comments to: Anne Arnold, Environmental Protection Agency, EPA attainment deadline for the area was Manager, Air Quality Planning Unit, New England Regional Office, 5 Post initially set for November 15, 1999 and Office of Ecosystem Protection, U.S. Office Square, Suite 100, Boston, MA. later extended to November 15, 2007. Environmental Protection Agency, EPA EPA requests that if at all possible, you See 67 FR 72574 (December 6, 2002). New England Regional Office, 5 Post contact the person listed in the FOR The Boston-Lawrence-Worcester, MA- Office Square, Suite 100, Boston, MA FURTHER INFORMATION CONTACT section to NH one-hour ozone nonattainment area 02109–3912. Such deliveries are only schedule your inspection. The Regional consists of all Massachusetts’ counties accepted during the Regional Office’s Office’s official hours of business are east of, and including Worcester normal hours of operation. The Regional Monday through Friday, 8:30 to 4:30, County, MA; along with parts of Office’s official hours of business are excluding legal holidays. Hillsborough and Rockingham Counties Monday through Friday, 8:30 to 4:30, FOR FURTHER INFORMATION CONTACT: in southern New Hampshire. (See 40 excluding legal holidays. Richard P. Burkhart, Air Quality CFR 81.322, and 81.330.)

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77740 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

On July 18, 1997 (62 FR 38856), EPA there will be no requirement to 2003; 68 FR 62043, October 31, 2003; promulgated a new standard for ozone implement one-hour ozone contingency and 69 FR 21719, April 22, 2004. Then, based on an 8-hour average measures for failure to attain or any EPA determines attainment status under concentration (the ‘‘1997 8-hour ozone additional one-hour ozone anti- the one-hour ozone NAAQS on the basis NAAQS’’). EPA designated and backsliding requirements. of the annual average number of classified most areas of the country expected exceedances of the NAAQS III. What is EPA’s analysis of data for under the eight-hour ozone NAAQS in over a three-year period. (See, 60 FR purposes of determining attainment of an April 30, 2004 final rule (69 FR 3349, January 17, 1995 and ‘‘General the one-hour ozone standard? 23858). EPA designated Boston- Preamble for the Implementation of Lawrence-Worcester, MA as A. How does EPA compute whether an Title I of the Clean Air Act Amendments nonattainment for the 1997 8-hour area has attained the one-hour ozone of 1990,’’ at 57 FR 13506, April 16, 1992 ozone NAAQS. At the time of standard? (‘‘General Preamble’’).) EPA’s designation the area did not meet the Although the one-hour ozone NAAQS determination is based upon data that one-hour ozone standard. In addition, as promulgated in 40 CFR 50.9 includes have been collected and quality-assured parts of southern New Hampshire were no discussion of specific data handling in accordance with 40 CFR part 58, and designated nonattainment for the 8-hour conventions, EPA’s publicly articulated recorded in EPA’s Air Quality System NAAQS. However, unlike the one-hour position and the approach long since (AQS) database. To account for missing ozone standard, in the case of the 1997 universally adopted by the air quality data, the procedures found in appendix 8-hour ozone standard, southern New management community is that the H to 40 CFR part 50 are used to adjust Hampshire was designated as a separate interpretation of the one-hour ozone the actual number of monitored ozone nonattainment area. (See 40 CFR standard requires rounding ambient air exceedances of the standard to yield the 81.330.) quality data consistent with the stated annual number of expected exceedances On April 30, 2004, EPA issued a final level of the standard, which is 0.12 parts (‘‘expected exceedance days’’) at an air rule (69 FR 23951) entitled ‘‘Final Rule per million (ppm). 40 CFR 50.9(a) states quality monitoring site. We determine if To Implement the 8-Hour Ozone that: ‘‘The level of the national one-hour an area meets the one-hour ozone National Ambient Air Quality primary and secondary ambient air NAAQS by calculating, at each monitor, Standard—Phase 1,’’ referred to as the quality standards for ozone * * * is the average expected number of days Phase 1 Rule. Among other matters, this 0.12 parts per million. * * * The over the standard per year (i.e., ‘‘average rule revoked the one-hour ozone standard is attained when the expected number of expected exceedance days’’) NAAQS in most areas of the country, number of days per calendar year with during the applicable 3-year period. See, effective June 15, 2005. (See 40 CFR maximum hourly average the General Preamble, 57 FR 13498, 50.9(b); 69 FR at 23996; and 70 FR concentrations of 0.12 parts per million April 16, 1992. The term ‘‘exceedance’’ 44470, August 3, 2005.) The Phase 1 * * * is equal to or less than 1, as is used throughout this document to Rule also set forth how anti-backsliding determined by appendix H to this part.’’ describe a daily maximum ozone principles will ensure continued Thus, compliance with the NAAQS is measurement that is equal to or exceeds progress toward attainment of the eight- based on comparison of air quality 0.125 ppm which is the level of the hour ozone NAAQS by identifying concentrations with the standard and on standard after rounding. An area which one-hour requirements remain how many days that standard has been violates the ozone standard if, over a applicable in an area after revocation of exceeded, adjusted for the number of consecutive 3-year period, more than 3 the one-hour ozone NAAQS. Although missing days. days of expected exceedances occur at EPA revoked the one-hour ozone For comparison with the NAAQS, the same monitor. For more information standard (effective June 15, 2005), eight- EPA has communicated the data please refer to 40 CFR 50.9 ‘‘National hour ozone nonattainment areas remain handling conventions for the one-hour one-hour primary and secondary subject to certain one-hour anti- ozone NAAQS in guidance documents. ambient air quality standards for ozone’’ backsliding requirements based on their As early as 1979, EPA issued guidance and ‘‘Interpretation of the one-hour one-hour ozone classification.1 The stating that the level of our NAAQS Primary and Secondary National United States Court of Appeals for the dictates the number of significant Ambient Air Quality Standards for District of Columbia Circuit figures to be used in determining Ozone’’ (40 CFR part 50, appendix H). subsequently determined that EPA whether the standard was exceeded. should have retained certain additional The stated level of the standard is taken B. EPA’s Analysis of the One-Hour measures as one-hour ozone anti- as defining the number of significant Ozone Data for the Boston-Lawrence- backsliding requirements. These include figures to be used in comparisons with Worcester, MA-NH Area one-hour ozone contingency measures the standard. For example, a standard Table 1 shows the results of one-hour under section 172(c)(9), which are to be level of 0.12 ppm means that ozone data for all the ozone monitors in implemented in the event an area fails measurements are to be rounded to two the Boston-Lawrence-Worcester, MA- to attain by its one-hour ozone decimal places (0.005 rounds up), and, NH area for the three-year period 2005– attainment date. South Coast Air therefore, 0.125 ppm is the smallest 2007. In short, if the three-year average Quality Management District v. EPA, concentration value in excess of the expected exceedances rate, shown in the 472 F.3d 882 (DC Cir. 2006) rehearing level of the standard. (See, ‘‘Guideline far right column, is less than or equal to denied 489 F.3d 1245. EPA is proposing for the Interpretation of Ozone Air 1.0, the site meets the one-hour ozone here to determine that the Boston- Quality Standards,’’ EPA–450/4–79– NAAQS. If all sites in the area are Lawrence-Worcester area attained the 003, OAQPS No. 1.2–108, January shown to meet the one-hour ozone one-hour ozone standard by the 1979.) EPA has consistently applied the NAAQS, it can be determined that the applicable attainment date. Thus, if EPA rounding convention in this 1979 area has attained the one-hour ozone finalizes its proposed determination, guideline. See, 68 FR 19111, April 17, NAAQS.

1 Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1, 69 FR 23951 (April 30, 2004).

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77741

TABLE 1—AVERAGE EXPECTED EXCEEDANCE RATE FOR THE ONE-HOUR OZONE STANDARD IN THE BOSTON-LAWRENCE- WORCESTER, MA-NH AREA FOR 2005–2007

Exceedances (days over 0.124 ppm) EPA AQS ID Site Year 3-Year average Actual Adjusted for expected ex- missing data ceedance rate

Massachusetts: 250250041 ...... Boston-Long Island ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250250042 ...... Boston-Roxbury ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250170009 ...... Chelmsford ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250051002 ...... Fairhaven ...... 2005 0 0.0 0.7 2006 2 2.0 2007 0 0.0 250095005 ...... Haverhill ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250092006 ...... Lynn ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250213003 ...... Milton ...... 2005 1 0.0 0.3 2006 0 0.0 2007 0 0.0 250094004 ...... Newbury ...... 2005 0 1.0 0.0 2006 0 0.0 2007 0 0.0 250070001 ...... Oak Bluffs ...... 2005 0 0.0 0.7 2006 2 2.1 2007 0 0.0 250171102 ...... Stow ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250010002 ...... Truro ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 250270015 ...... Worcester ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0 New Hampshire: 330111011 ...... Nashua ...... 2005 0 0.0 0.0 2006 0 0.0 2007 0 0.0

As shown in Table 1, the Boston- its applicable one-hour ozone those imposed by state law. For that Lawrence-Worcester, MA–NH one-hour attainment date of November 15, 2007, reason, this proposed action: ozone nonattainment area attained the based on 2005–2007 complete, certified • Is not a ‘‘significant regulatory one-hour ozone NAAQS by its and quality-assured ozone monitoring action’’ subject to review by the Office attainment deadline of November 15, data. EPA is soliciting public comments of Management and Budget under 2007, since all ozone monitors had on the issues discussed in this notice or Executive Order 12866 (58 FR 51735, expected exceedances rates below 1.0. on other relevant matters. EPA will October 4, 1993); Thus EPA is proposing to determine consider these comments before final • Does not impose an information that, based on the 2005–2007 complete, action. Interested parties may collection burden under the provisions quality-assured and certified ozone data participate in the Federal rulemaking of the Paperwork Reduction Act (44 in the AQS database, the Boston- procedure by submitting written U.S.C. 3501 et seq.); Lawrence-Worcester, MA–NH area met comments to the EPA New England • Is certified as not having a the 1-hour ozone NAAQS by its Regional Office listed in the ADDRESSES significant economic impact on a applicable attainment date of November section of this Federal Register. substantial number of small entities 15, 2007. under the Regulatory Flexibility Act (5 V. Statutory and Executive Order U.S.C. 601 et seq.); IV. Proposed Determination Reviews • Does not contain any unfunded For the reasons set forth in this notice, This action proposes to make a mandate or significantly or uniquely EPA is proposing to determine that the determination of attainment based on affect small governments, as described Boston-Lawrence-Worcester, MA–NH monitored air quality data, and does not in the Unfunded Mandates Reform Act one-hour ozone nonattainment area met impose additional requirements beyond of 1995 (Pub. L. 104–4);

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77742 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

• Does not have Federalism which align the state’s rule entitled ENVIRONMENTAL PROTECTION implications as specified in Executive ‘‘Submission of Emission Data, AGENCY Order 13132 (64 FR 43255, August 10, Emission Fees and Process Information’’ 1999); with the Federal Air Emissions 40 CFR Part 136 • Is not an economically significant Reporting Requirements Rule (AERR). [EPA–HQ–OW–2010–0192; FRL–9504–2] regulatory action based on health or DATES: Comments on this proposed safety risks subject to Executive Order Guidelines Establishing Test action must be received in writing by 13045 (62 FR 19885, April 23, 1997); Procedures for the Analysis of • January 13, 2012. Is not a significant regulatory action Pollutants Under the Clean Water Act; subject to Executive Order 13211 (66 FR ADDRESSES: Submit your comments, Analysis and Sampling Procedures; 28355, May 22, 2001); Notice of Data Availability • identified by Docket ID No. EPA–R07– Is not subject to requirements of OAR–2011–0822, by mail to Amy AGENCY: Environmental Protection Section 12(d) of the National Bhesania, Environmental Protection Technology Transfer and Advancement Agency (EPA). Agency, Air Planning and Development Act of 1995 (15 U.S.C. 272 note) because ACTION: Branch, 901 North 5th Street, Kansas Notice of data availability. application of those requirements would be inconsistent with the Clean Air Act; City, Kansas 66101. Comments may also SUMMARY: On September 23, 2010, EPA and be submitted electronically or through proposed to approve a number of new • Does not provide EPA with the hand delivery/courier by following the and revised test procedures (i.e., discretionary authority to address, as detailed instructions in the ADDRESSES analytical methods) for measuring appropriate, disproportionate human section of the direct final rule located in pollutants under the Clean Water Act. health or environmental effects, using the rules section of this Federal Today’s notice announces the practicable and legally permissible Register. availability of new data on an analytical methods, under Executive Order 12898 method for the measurement of oil and FOR FURTHER INFORMATION CONTACT: (59 FR 7629, February 16, 1994). grease that EPA described in the earlier In addition, this action does not have Amy Bhesania at (913) 551–7147, or by notice but did not propose to approve it tribal implications as specified by email at [email protected]. for use. This notice discusses how EPA Executive Order 13175 (65 FR 67249, SUPPLEMENTARY INFORMATION: In the is considering revising its proposed November 9, 2000), because the SIP is final rules section of the Federal regulatory requirements for this method. not approved to apply in Indian country Register, EPA is approving the State’s EPA is soliciting comment only on located in the state, and EPA notes that SIP revision as a direct final rule EPA’s consideration of this method. it will not impose substantial direct without prior proposal because the DATES: Comments must be received on costs on tribal governments or preempt Agency views this as a noncontroversial or before February 13, 2012. tribal law. revision amendment and anticipates no ADDRESSES: Submit your comments, List of Subjects in 40 CFR Part 52 relevant adverse comments to this identified by Docket ID No. EPA–HQ– 2010–0192, by one of the following Environmental protection, Air action. A detailed rationale for the approval is set forth in the direct final methods: pollution control, Incorporation by • rule. If no relevant adverse comments http://www.regulations.gov: Follow reference, Intergovernmental relations, the on-line instructions for submitting Nitrogen dioxide, Ozone, Reporting and are received in response to this action, no further activity is contemplated in comments. recordkeeping requirements, Volatile • Email: [email protected] organic compounds. relation to this action. If EPA receives relevant adverse comments, the direct Attention Docket ID No. OW–2010– Authority: 42 U.S.C. 7401 et seq. 0192. final rule will be withdrawn and all • Mail: Water Docket, Environmental Dated: December 6, 2011. public comments received will be H. Curtis Spalding, Protection Agency, Mailcode: 28221T, addressed in a subsequent final rule 1200 Pennsylvania Ave. NW., Regional Administrator, EPA New England. based on this proposed action. EPA will Washington, DC 20460. [FR Doc. 2011–32059 Filed 12–13–11; 8:45 am] not institute a second comment period • Hand Delivery: EPA Water Center, BILLING CODE 6560–50–P on this action. Any parties interested in EPA West Building, Room B102, 1301 commenting on this action should do so Constitution Avenue NW., Washington, at this time. Please note that if EPA DC, Attention Docket ID No. OW–2010– ENVIRONMENTAL PROTECTION receives adverse comment on part of AGENCY 0192. Such deliveries are only accepted this rule and if that part can be severed during the Docket’s normal hours of 40 CFR Parts 52 and 70 from the remainder of the rule, EPA may operation, and special arrangements adopt as final those parts of the rule that should be made for deliveries of boxed [EPA–R07–OAR–2011–0822; FRL–9505–7] are not the subject of an adverse information. Instructions: Direct your comments to Approval and Promulgation of comment. For additional information, Docket ID No. EPA–HQ–OW–2010– Implementation Plans; State of see the direct final rule which is located 0192. EPA’s policy is that all comments Missouri in the rules section of this Federal Register. received will be included in the public AGENCY: docket without change and may be Environmental Protection Dated: November 28, 2011. Agency (EPA). made available online at http:// Karl Brooks, ACTION: Proposed rule. www.regulations.gov, including any Regional Administrator, Region 7. personal information provided, unless SUMMARY: EPA proposes to approve the [FR Doc. 2011–31908 Filed 12–13–11; 8:45 am] the comment includes information State Implementation Plan (SIP) and BILLING CODE 6560–50–P claimed to be Confidential Business Operating Permits Program revisions Information (CBI) or other information submitted by the state of Missouri whose disclosure is restricted by statute.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77743

Do not submit information that you Docket: All documents in the docket I. General Information consider to be CBI or otherwise are listed in the http:// A. Does this action apply to me? protected through http:// www.regulations.gov index. Although www.regulations.gov or email. The listed in the index, some information is EPA Regions, as well as States, http://www.regulations.gov Web site is not publicly available, e.g., CBI or other Territories and Tribes authorized to an ‘‘anonymous access’’ system, which information whose disclosure is implement the National Pollutant restricted by statute. Certain other means EPA will not know your identity Discharge Elimination System (NPDES) material, such as copyrighted material, or contact information unless you program, issue permits with conditions will be publicly available only in hard provide it in the body of your comment. designed to ensure compliance with the copy. Publicly available docket If you send an email comment directly technology-based and water quality- to EPA without going through http:// materials are available either electronically in http:// based requirements of the Clean Water www.regulations.gov your email address www.regulations.gov or in hard copy at Act (CWA). These permits may include will be automatically captured and the Water Docket, EPA/DC, EPA West, restrictions on the quantity of pollutants included as part of the comment that is Room B102, 1301 Constitution Ave. that may be discharged as well as placed in the public docket and made NW., Washington, DC. The Public pollutant measurement and reporting available on the Internet. If you submit Reading Room is open from 8:30 a.m. to requirements. If EPA has approved a test an electronic comment, EPA 4:30 p.m., Monday through Friday, procedure for analysis of a specific recommends that you include your excluding legal holidays. The telephone pollutant, the NPDES permittee must name and other contact information in number for the Public Reading Room is use an approved test procedure (or an the body of your comment and with any (202) 566–1744, and the telephone approved alternate test procedure) for disk or CD–ROM you submit. If EPA number for the Water Docket is (202) the specific pollutant when measuring cannot read your comment due to 566–2426. the required waste constituent. technical difficulties and cannot contact FOR FURTHER INFORMATION CONTACT: Similarly, if EPA has established you for clarification, EPA may not be Maria Gomez-Taylor, Office of Science sampling requirements, measurements able to consider your comment. and Technology, Office of Water (4303– taken under an NPDES permit must Electronic files should avoid the use of T), Environmental Protection Agency, comply with these requirements. special characters, any form of 1200 Pennsylvania Avenue NW; Therefore, entities with NPDES permits encryption, and be free of any defects or Washington, DC 20460; telephone will potentially be affected by the viruses. For additional information number: (202) 566–1005; fax number: actions in this rulemaking. Categories about EPA’s public docket visit the EPA (202) 566–1053; email address: Gomez- and entities that may potentially be Docket Center homepage at http:// [email protected]. affected by the requirements of today’s www.epa.gov/epahome/dockets.htm. SUPPLEMENTARY INFORMATION: rule include:

Category Examples of potentially affected entities

State, Territorial, and Indian Tribal Govern- States, Territories, and Tribes authorized to administer the NPDES permitting program; States, ments. Territories, and Tribes providing certification under Clean Water Act section 401; State, Territorial, and Indian Tribal owned facilities that must conduct monitoring to comply with NPDES permits. Industry ...... Facilities that must conduct monitoring to comply with NPDES permits. Municipalities ...... POTWs or other municipality owned facilities that must conduct monitoring to comply with NPDES permits.

This table is not intended to be B. What should I consider as I prepare 2. Tips for Preparing Your Comments. exhaustive, but rather provides a guide my comments for EPA? When submitting comments, remember for readers regarding entities likely to be to: affected by this action. This table lists 1. Submitting CBI. Do not submit this • information to EPA through http:// Identify the rulemaking by docket types of entities that EPA is now aware number and other identifying www.regulations.gov or email. Clearly of that could potentially be affected by information (subject heading, Federal mark the part or all of the information this action. Other types of entities not Register date and page number). listed in the table could also be affected. that you claim to be CBI. For CBI information in a disk or CD ROM that • Follow directions—The agency may To determine whether your facility is ask you to respond to specific questions affected by this action, you should you mail to EPA, mark the outside of the disk or CD ROM as CBI and then or organize comments by referencing a carefully examine the applicability Code of Federal Regulations (CFR) part language at 40 CFR 122.1 (NPDES identify electronically within the disk or CD ROM the specific information that is or section number. purpose and scope), 40 CFR 136.1 • (NPDES permits and CWA) and 40 CFR claimed as CBI. In addition to one Explain why you agree or disagree; 403.1 (Pretreatment standards purpose complete version of the comment that suggest alternatives and substitute and applicability). If you have questions includes information claimed as CBI, a language for your requested changes. regarding the applicability of this action copy of the comment that does not • Describe any assumptions and to a particular entity, consult the contain the information claimed as CBI provide any technical information and/ appropriate person listed in the must be submitted for inclusion in the or data that you used. public docket. Information so marked preceding FOR FURTHER INFORMATION • If you estimate potential costs or CONTACT section. will not be disclosed except in burdens, explain how you arrived at accordance with procedures set forth in your estimate in sufficient detail to 40 CFR part 2. allow for it to be reproduced.

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77744 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

• Provide specific examples to protocols cannot be reliably verified commenter added that approving the illustrate your concerns, and suggest outside the method itself). EPA has new technologies would be more alternatives. defined a method-defined analyte in 40 consistent with EPA’s mission and • Explain your views as clearly as CFR 136.6(a)(5) as ‘‘.* * * an analyte purpose to ‘‘ensure that all Americans possible, avoiding the use of profanity defined solely by the method used to are protected from significant risks to or personal threats. determine the analyte. Such an analyte human health and the environment • Make sure to submit your may be a physical parameter, a where they live, learn and work.’’ comments by the comment period parameter that is not a specific Another commenter indicated that deadline identified. chemical, or a parameter that may be EPA should approve new technologies comprised of a number of substances. for oil and grease because n-hexane is a II. Summary of New Information and Examples of such analytes include dangerous solvent. This commenter Request for Comment temperature, oil and grease, total cited literature that describes n-hexane’s A. Background on Proposed Rule suspended solids, total phenolics, toxicity to humans and to the turbidity, chemical oxygen demand, and environment. Still another commenter On September 23, 2010, EPA biochemical oxygen demand.’’ stated that fats, oils and greases are not proposed to add new and revised EPA exclusively ‘‘hexane extractable’’ methods to its Part 136 test procedures C. Oil and Grease compounds and claimed that other (75 FR 58024). The regulated Unlike many parameters, oil and technologies and methods may be better community and laboratories use these grease is not a unique chemical entity, at measuring these compounds, and approved methods for determining but is a mixture of chemical species that may be used to better quantify how compliance with National Pollutant varies from source to source. Common much fat, oil or grease is toxic to aquatic Discharge Elimination System (NPDES) substances that may contribute to oil life or interferes with wastewater permits or other monitoring and grease include petroleum based treatment. This commenter also stated requirements under the Clean Water Act compounds such as fuels, motor oil, that EPA should not specifically and (CWA). EPA periodically updates the lubricating oil, soaps, waxes, and uniquely endorse a solvent-specific list of approved methods to reflect hydraulic oil and vegetable based method for ‘‘oil and grease’’ and advances in technology and provide compounds such as cooking oil and requested that EPA reverse its decision entities more choices of approved other fats. Oil and grease is defined by that only n-hexane extractable oil and compliance monitoring methods. the method used to measure it (i.e., a grease methods are acceptable. Among other methods, in the September method-defined analyte). The CWA 2010 proposal, EPA proposed to add defines oil and grease as a conventional III. ASTM Method D7575–10 for Oil two oil and grease methods published parameter and hundreds of thousands of and Grease by the Standard Methods Committee NPDES permits and indirect discharging Some of the comments focused that use the same solvent as the existing permits contain oil and grease exclusively on one particular oil and Part 136 oil and grease methods. In the numerical limits. Currently, Part 136 grease method EPA discussed in its Notice, EPA also described three oil and lists three references to analytical proposal, ASTM D7575–10. Unlike EPA grease methods published by ASTM methods for the measurement of oil in Method 1664A which uses n-hexane as International or the Standard Methods grease in such discharge permits. the extractant and gravimetry for the Committee that require a different Overwhelmingly, the vast majority of measurement of the extracted materials, extractant and/or a different discharges use EPA Method 1664A to ASTM D7575–10 uses an extracting measurement (i.e., determinative) measure compliance with such membrane followed by infrared technique than the existing Part 136 oil discharge limits. Method 1664A is a measurement of the sample materials and grease methods. As explained in the liquid/liquid extraction (LLE), that can be retained on the membrane. Notice, oil and grease is a method- gravimetric procedure that employs This method was originally developed defined parameter. That is, the normal hexane (n-hexane) as the by Orono Spectral Solutions (OSS), and measurements obtained by the method extraction solvent. This method also approved by ASTM on January 1, 2010 are a specific artifact of the method and allows the use of solid-phase extraction (Standard Test Method for Solvent-Free defined solely by the elements (solvent, (SPE) provided that the results obtained Membrane Recoverable Oil and Grease determinative technique) used to by SPE are equivalent to the results by Infrared Determination, ASTM measure the analyte. Because these obtained by LLE. D7575–10). Certain commenters to three methods use a different extractant EPA’s September 2010 proposal, and/or a different determinative D. Public Comments Related to Oil and including ASTM and OSS, requested technique, how to translate Grease that EPA re-consider ASTM D7575–10 measurements using these methods to In response to the September 2010 for the measurement of oil and grease those obtained under existing methods proposal, EPA received several under Clean Water Act programs. In for purposes of comparison was not comments recommending that EPA particular, they cited that ASTM clear. Consequently, consistent with approve recent methods that include D7575–10 is solvent free and provides past practices, EPA did not propose to new technologies, including alternative reliable and comparable results to EPA include these methods in Part 136. methods for oil and grease. One Method 1664A. As part of this re- commenter stated that EPA’s reasoning consideration, these commenters B. Method-Defined Analytes for not approving alternative test submitted additional information on the A method-defined analyte includes methods for oil and grease is health hazards associated with hexane certain parameters where the contradictory to the Agency’s as well as additional single laboratory measurement results obtained are solely ‘‘Summary’’ statement that these comparability data between Method dependent on the method used. As a regulations will ‘‘provide increased 1664A and ASTM D7575–10 and on consequence, the results obtained are flexibility to the regulated community additional matrices tested after the not directly comparable to results and laboratories in their selection of initial comparability study and obtained by another method (i.e., the analytical methods (test procedures) for associated statistical analysis. These data derived from method-defined use in Clean Water Act programs.’’ This data, EPA’s analyses of these data, and

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77745

communications related to the A. Technical Considerations Related to matrix). The QC acceptance criteria for alternative ASTM method between EPA, ASTM Method D7575–10 the candidate method must then be compared to the QC acceptance criteria OSS and ASTM are included as part of 1. EPA Evaluation of This New Method the record for today’s notice. specifications for methods in Part 136 Based on the data and information and the performance of the candidate EPA’s consideration of ASTM D7575– available in EPA’s record, EPA method must be as good or better than 10 is entirely novel. Because oil and concludes ASTM D7575–10 is a good that of an approved method. This grease is a method-defined parameter, stand-alone method for the process is described in the ‘‘Protocol for with one exception, EPA has not measurement of oil and grease in EPA Approval of New Methods for considered promulgating multiple wastewater. The method was single- and Organic and Inorganic Analytes in methods to measure oil and grease that multi-lab tested following ASTM Wastewater and Drinking Water,’’ are based on different extractants. Standard Practice D2777 (Standard March 1999. Moreover, EPA has not considered Practice for the Determination of In contrast, there is no well-defined multiple oil and grease methods that are Precision and Bias of Applicable Test process for the evaluation of a proposed based on different determinative methods of Committee D19 on Water) test method for method-defined techniques. The only exception to this and produces similar recoveries and parameters. In addition to ensuring that was EPA’s promulgation of EPA Method precision to EPA Method 1664A for the performance of the proposed 1664A in 1999 to replace Method 413.1, those matrices tested and in the range of method is acceptable as described above a similar procedure that used Freon® method applicability (5–200 mg/L). for non-method-defined parameters, (1,1, 2-trichloro-1,2,2-trifluoroethane In reviewing the method, EPA EPA wants to ensure that results requested that ASTM revise its new (CFC–113; Freon-113)) as the extraction produced by the proposed method are standard to provide additional details solvent. EPA made this exception comparable to results produced with the on the underlying procedural steps— because Freon® was banned by an approved method. When EPA specifically in regard to sample promulgated EPA Method 1664A to international treaty, and until the ban homogenization and calibration replace EPA Method 413.1, a similar went into effect, EPA allowed either of verification—and to clarify the procedure that used Freon® (1,1, 2- these oil and grease methods for CWA applicability (or lack thereof) of the trichloro-1,2,2-trifluoroethane (CFC– compliance. In both methods, the method to non-wastewater matrices. 113; Freon-113)) as the extraction determinative technique is gravimetry ASTM revised the method write-up solvent, EPA evaluated a variety of and the only change was the extraction accordingly. See DCN xxx for additional possible replacement extracting solvents ® solvent (n-hexane instead of Freon ). information. in addition to n-hexane. EPA selected n- EPA is persuaded by commenters to 2. Comparability of Results Between hexane and promulgated Method 1664A its September 23, 2010 Notice that it ASTM D7575–10 and EPA Method after conducting extensive side-by-side should re-consider its position on 1664A studies of several extracting solvents on a variety of samples representing a wide ASTM D7575–10. Such a consideration As explained above, with the represents a new path for EPA. As is range of matrices (see ‘‘Preliminary exception of EPA’s promulgation of Report of EPA Efforts to Replace Freon always the case, EPA is proceeding Method 1664A to replace Method 413.1, carefully, with a particular focus on the for the Determination of Oil and EPA has not considered promulgating Grease,’’ EPA–821–R–93–011, underlying data. EPA’s consideration is multiple methods to measure oil and September 1993, and Report of EPA specific to ASTM D7575–10 and should grease that are based on different Efforts to Replace Freon for the not be interpreted broadly to other oil extractants nor has EPA considered Determination of Oil and Grease and and grease methods that use different promulgating oil and grease methods Total Petroleum Hydrocarbons, EPA– extractants and/or determinative with different determinative techniques. 820–R–95003, April 1995). In techniques, or more generally to other As a result, EPA does not have a defined considering which solvent produced method-defined analytes. If EPA ‘‘process’’ for such considerations. For results most comparable to results receives similar requests for other non-method-defined parameters where obtained with Freon®, EPA conducted a methods, it will evaluate each one the analyte being measured is a single Root Mean Squared Deviation (RMSD) individually. compound (e.g., copper, benzene), EPA evaluation of the data collected in the often promulgates multiple methods Although the September 2010 side-by-side studies. None of the that may be based on different proposal discussed the current use of alternative solvents produced results determinative techniques for EPA Method 1664A as a required testing statistically comparable to results nationwide use. In such cases, EPA has produced by Freon®. However, EPA method to determine the eligibility of a well-defined process for ensuring that materials for certain conditional concluded at the time that n-hexane was the performance of a proposed method appropriate as an alternative solvent, exclusions for RCRA regulations under is acceptable (i.e., the proposed test based on overall extraction results (96% 40 CFR260.20 and 260.22 (i.e., procedure must demonstrate an versus 100% for Freon) and analytical delistings), and additionally proposed to improvement over current EPA- practical considerations (e.g., boiling allow the revised version of this testing approved methods such as fewer matrix point). method (Method 1664, Rev. B) for future interferences, and better sensitivity, In considering ASTM D7575–10, EPA delistings, EPA is not considering precision and recovery). For a new reviewed the available single laboratory ASTM D7575–10 for use under the candidate test method employing a comparability data between ASTM RCRA program. Until ASTM D7575–10 determinative technique that is different D7575–10 and EPA Method 1664A. is validated for a full range of matrices from those techniques used in existing Initially, these data included triplicate covered by the RCRA program, EPA approved methods, the applicant must analyses of samples from seven different considers this new testing method to be develop quality control (QC) acceptance wastewater matrices (eight POTWs, limited to the Clean Water Act program. criteria based on the validation protocol dairy, machine shop, gunsmith, auto for nationwide use applications (9 garage, auto salvage yard, and fish laboratories, each analyzing a different processor). Later, OSS submitted

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77746 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

additional data for three matrices (bilge measured by ASTM D7575–10 relative analysis, reduced analysis time, and water, peanut processor, and lunchmeat to Method 1664A. lower analytical costs. processor) that were collected after the For the reason identified above, in the C. Implementation Considerations single laboratory study.1 EPA conducted case of ASTM D7575–10, EPA Related to Multiple Oil and Grease a Root Mean Squared Deviation (RMSD) concludes it is not appropriate to apply Methods comparability assessment with these the same statistical assessment as is data, following the methodology set done for non-method-defined EPA recognizes that if it promulgates forth in ‘‘Analytical Method Guidance parameters. As a result, EPA applied ASTM D7575–10 in 40 CFR Part 136 as for EPA Method 1664A Implementation similar comparison techniques as those an alternative to EPA method 1664A, and Use (40 CFR part 136), EPA/821–R– performed in replacing EPA Method permittees and control authorities may 00–003, February 2000.’’ For this 413.1 with EPA Method 1664A. As still have concerns related to the results assessment, EPA first used the original mentioned above, during that obtained from ASTM D7575–10 relative data set and subsequently included the replacement analysis, n-hexane was to EPA Method 1664A, particularly for matrices not evaluated to date. While additional data for three matrices and found to extract 96% of the oil and EPA has determined that the results of determined the results were not grease that could be extracted by Freon. the two methods are comparable over statistically comparable, with or without This 4% difference was deemed the applicable range where the two the data for the additional matrices. insignificant based on the variability of methods overlap (5–200 mg/L), because This outcome was not unexpected oil and grease measurements (around of the wide variety and type of because of the intrinsic differences in the order of 10% relative standard individual compounds that may be the two methods and the nature of deviation) and the confidence intervals measured by oil and grease and because method-defined parameters. Similarly, about the 96% extraction (plus or minus oil and grease are extensively when EPA performed an RMSD 20% extracted). When comparing the incorporated in permits covering a wide comparability assessment before results of ASTM D7575–10 to EPA promulgating EPA Method 1664A in variety of wastewater matrices, Method 1664A, the non-solvent method permittees or control authorities may place of EPA Method 413.1, EPA did not removes an average of 99.6% of the oil find the results to be statistically continue to have compliance concerns and grease that was removed by n- (i.e., a permittee could be in or out of comparable.2 hexane under the same conditions. The As explained in Section II.B, the compliance) simply due to a change in variability of the situational the test method used to evaluate comparability of results is a significant comparisons along with the 10% samples. issue with method-defined analytes relative standard deviation for oil and When EPA promulgated EPA Method such as oil and grease because the grease measurements once again allow 1664A to replace EPA Method 413.1, results depend on the method used. For us to conclude that the 0.4% difference EPA and other stakeholders had similar oil and grease, the amount of oil and is not significant. Using this approach, concerns. These concerns were grease material extracted depends on for the range of the ASTM D7575–10 magnified because Method 1664A was a the solvent or membrane used for the applicability (5–200 mg/L), ASTM replacement, rather than an alternative, extraction of oil and grease. As such, it D7575–10 could serve as a substitute for to the existing method at that time. To may not be possible for results from Method 1664A in the same fashion as n- accommodate concerns about methods that use different extraction hexane served as a replacement for differences in results, EPA allowed techniques to be compared statistically. Freon. permitting authorities to establish a For example, EPA Method 1664A conversion factor by having the employs distillation at 85°C, and as B. Summary of EPA’s Reconsideration of ASTM D7575–10 discharger perform a side-by-side such, petroleum materials from gasoline comparison of Method 1664 and the through #2 fuel oil and non-petroleum Based on the information presented in Freon® extraction method and then materials including carboxylic and other today’s Notice, EPA is re-considering its adjusting the discharge limits, if organic acids may be partially lost decision not to include ASTM D7575– necessary, to account for differences in during this solvent removal operation. 10 in 40 CFR Part 136 as an alternative the permit. EPA further recommended a Similarly, some crude oils and heavy to EPA Method 1664A for measuring oil specific process to follow for the side- fuel oils contain a significant percentage and grease. EPA has three main reasons by-side comparison in the guidance of materials that are not soluble in the for this reconsideration. First, EPA’s document mentioned earlier [Analytical n-hexane solvent of EPA Method 1664A analysis demonstrates ASTM D7575–10 Method Guidance for EPA Method resulting in low recoveries for these is an acceptable stand-alone method for 1664A Implementation and Use (40 CFR materials. ASTM D7575–10 has no such the measurement of oil in grease in part 136), EPA/821–R–00–003, February solvent removal step which could wastewater for the applicable reporting 2000]. increase or decrease the amount of range (5–200 mg/L) and it produces In contrast to EPA’s replacement of petroleum and non-petroleum materials results that are generally very close to Freon with n-hexane, if EPA were to those obtained using EPA Method promulgate ASTM D7575–10, it would 1 OSS also submitted data for several other 1664A for the matrices tested. Second, not lead to any requirement on permit matrices that EPA did not include in the analysis because these data were based on only one sample this method has certain advantages over holders. In this case, unless ASTM result per matrix and thus lacked the required the currently approved method. EPA D7575–10 is specified in the permit, replicates for a statistical analysis. Additionally, supports pollution prevention, and is promulgating ASTM D7575–10 would ASTM recently submitted triplicate data for three particularly persuaded by the simply provide additional flexibility to other matrices. Because EPA received this data after conducting its statistical analysis, this data is not substantial advantages associated with permit holders in analyzing for oil and included in the RMSD assessment described in this the green aspects of this membrane grease. Because this would be optional paragraph, but is included in the record for today’s technology (e.g., it uses a solventless and because of the burden that would be notice. extraction, there is no solvent waste, placed on the permitting authorities in 2 Note that in absence of statistical comparability, EPA ultimately determined that EPA Method 1664A and no analyst exposure to solvent). reviewing side-by-side data, EPA is not could be used as a direct replacement for EPA Finally, ASTM D7575–10 may offer currently persuaded that it should Method 413.1. other advantages such as ease of include a provision providing the same

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77747

ability to adjust discharge limits based approach used for n-hexane in place of revisions to the Commission’s wireless on side-by side-comparison of EPA Freon (see section III.C above) or should hearing aid compatibility rules. The Method 1664A to ASTM D7575–10 as it EPA consider a different approach? Commission’s rules define hearing aid did when it replaced Freon with n- compatibility by reference to a third V. Referenced New Docket Materials hexane. However, to the extent that party technical standard. Recently, a permittees would elect to use ASTM 1. January 16, 2009 Memorandum from new version of that technical standard D7575–10 and permitting authorities Richard Reding on Modifications to was developed to test the hearing aid would accept the use of ASTM D–7575– Method 1664A. compatibility of the newest generation 10 rather than EPA Method 1664A, 2. May 14, 1999 Federal Register (64 FR of digital wireless handsets. The 26315). nothing would prevent them from 3. Preliminary Report of EPA Efforts to proposed rules would adopt the revised conducting a side-by-side comparison of Replace Freon for the Determination of version of the technical standard into the two methods. EPA would Oil and Grease, EPA–821–R–93–011, the Commission’s rules. recommend such a side-by-side September 1993. DATES: Interested parties may file comparison if permittees and/or 4. Report of EPA Efforts to Replace Freon for comments on or before January 13, permitting authorities have concerns the Determination of Oil and Grease and 2012, and reply comments on or before about a specific matrix, particularly Total Petroleum Hydrocarbons: Phase II, January 30, 2012. EPA–820–R–95–003, April 1995. when the measured oil and grease ADDRESSES: You may submit comments, values when switching to ASTM 5. October 15, 2010 email from Tyler Martin containing the following data files: identified by WT Docket No. 07–250, by D7575–10 are more than 20% lower a. Multi-Lab Validation Raw Data any of the following methods: from values routinely measured by EPA b. Expanded ASTM D7575 Validation • Federal eRulemaking Portal: Method 1664A (the 20% variability Report http://www.regulations.gov. Follow the around oil and grease measurements is c. Single-Lab Validation Raw Data instructions for submitting comments. discussed in section III.A.2 of today’s d. Comparability Analysis from Single-Lab • Federal Communications Notice). Validation Results Commission’s Web site: http:// 6. October 19, 2010 email from Tyler Martin www.fcc.gov/cgb/ecfs/. Follow the IV. Request for Comments containing additional comparability data instructions for submitting comments. Based on the new information and between Method 1664 and ASTM D7575. • 7. October 21, 2010 email from Tyler Martin Mail: Filings can be sent by hand or EPA’s analysis of this information as messenger delivery, by commercial described in this Notice, EPA is with clarification on data submitted. 8. June 28, 2011 letter from James A. Thomas, overnight courier, or by first-class or reconsidering whether to promulgate ASTM President to Mary Smith, EPA, overnight U.S. Postal Service mail ASTM D7575–10 in 40 CFR Part 136 as with ASTM International D19 Water (although the Commission continues to an alternative method for oil and grease Response to US EPA Questions experience delays in receiving U.S. where the applicable ranges overlap (5– Concerning ASTM Standard D7575. Postal Service mail). All filings must be 200 mg/L) and requests public 9. Analytical Method Guidance for EPA addressed to the Commission’s comments on this reconsideration, the Method 1664A Implementation and Use (40 CFR part 136), EPA/821–R–00–003, Secretary, Office of the Secretary, supporting data, and the resulting Federal Communications Commission. analysis. While ASTM D7575–10 has February 2000. 10. Protocol for EPA Approval of New • People with Disabilities: Contact the significant pollution prevention Methods for Organic and Inorganic FCC to request reasonable advantages over the currently approved Analytes in Wastewater and Drinking accommodations (accessible format method, EPA recognizes the potential Water, March 1999. documents, sign language interpreters, impact that this new method could have 11. Study Report from the Testing of CART, etc.) by email: [email protected] on the hundreds of thousands of oil and Additional Industrial Wastewater or phone: (202) 418–0530 or TTY: (202) grease determinations in regulatory Matrices in Support of ASTM D7575 for 418–0432. USEPA’s Reconsideration of this Method Clean Water Act programs and desires For detailed instructions for to obtain additional input from in the Forthcoming Method Update Rule, November 2011. submitting comments and additional stakeholders. Specifically, EPA requests information on the rulemaking process, comments on the following: Dated: December 2, 2011. see the SUPPLEMENTARY INFORMATION 1. Whether EPA should reconsider Nancy K. Stoner, section of the document. promulgating this additional method for Acting Assistant Administrator for Water. oil and grease based on different FOR FURTHER INFORMATION CONTACT: [FR Doc. 2011–32063 Filed 12–13–11; 8:45 am] Michael Rowan, Wireless extractants and determinative BILLING CODE 6560–50–P techniques than EPA Method 1664A. Telecommunications Bureau, (202) 418– 2. EPA’s current view, based on the 1883, email [email protected], or data it has reviewed to date, that ASTM Saurbh Chhabra, Wireless FEDERAL COMMUNICATIONS D7575–10 is an acceptable choice for Telecommunications Bureau, (202) 418– COMMISSION the determination of oil and grease for 2266, email [email protected]. SUPPLEMENTARY INFORMATION: the range (5 to 200 mg/L) evaluated. 47 CFR Part 20 This is a 3. EPA’s current conclusion that summary of the Commission’s Second permit limit adjustment based on side- [WT Docket No. 07–250; DA 11–1707] Further Notice of Proposed Rulemaking by-side comparisons of EPA Method (SFNPRM) in WT Docket No. 07–250, 1664A and ASTM D7575–10 is not Amendment of the Commission’s adopted November 1, 2010, and released appropriate. EPA is particularly Rules Governing Hearing Aid- on November 1, 2010. The full text of interested in obtaining comments from Compatible Mobile Handsets the SFNPRM is available for public permitting authorities on this issue and AGENCY: Federal Communications inspection and copying during business estimates of the burden associated with Commission. hours in the FCC Reference Information reviewing such requests. ACTION: Proposed rule. Center, Portals II, 445 12th Street SW., 4. If EPA were to allow a side-by-side Room CY–A257, Washington, DC 20554. comparison with limit adjustment as SUMMARY: In this document the It also may be purchased from the necessary, should EPA look to the Commission seeks comment on Commission’s duplicating contractor at

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77748 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

Portals II, 445 12th Street SW., Room encouraged ASC C63® and others to compatibility standard codified in the CY–B402, Washington, DC 20554; the work together to develop such standards rules would remain current, the contractor’s Web site, http:// in a timely manner. ASC C63® recently Commission in Section 20.19(k)(2) of www.bcpiweb.com or by calling (800) adopted an updated version of the the rules delegated to the Chief of WTB 378–3160, facsimile (202) 488–5563, or standard, the 2011 ANSI Standard, and the Chief of OET the authority, by email [email protected]. Copies of which includes the 700 MHz band as notice-and-comment rulemaking, to the SFNPRM also may be obtained via well as other new frequencies and approve the use of future versions of the the Commission’s Electronic Comment technologies. The new standard was standard that do not raise major Filing System (ECFS) by entering the published on May 27, 2011. The compliance issues. In addition, the docket number WT Docket No. 07–250. standard may be purchased from the Commission in Section 20.19(k)(1) of Additionally, the complete item is Institute of Electrical and Electronics the rules delegated authority to the available on the Federal Engineers, Inc. (IEEE) at the address Chief of WTB and the Chief of OET to Communications Commission’s Web indicated in Section 20.19(b)(5) of the initiate a rulemaking proceeding to site at http://www.fcc.gov. Proposed Rules, and a copy is available adopt future versions of the ANSI Standard that add additional frequency I. Introduction for inspection at the Commission’s Reference Information Center. ASC bands or air interfaces not covered by 1. The Commission’s wireless hearing C63® has requested the Commission to previous versions, if the new version aid compatibility rules, 47 CFR 20.19, adopt the newer version of the standard. does not impose materially greater ensure that consumers with hearing loss Some of the features of the 2011 ANSI obligations than those imposed on are able to access wireless Standard that are different from the services already subject to the hearing communications services through a 2007ANSI Standard include: aid compatibility rules. Under Section wide selection of handsets without • The operating frequency range for 20.19(k)(1), new obligations imposed on experiencing disabling radio frequency wireless devices covered by the manufacturers and Commercial Mobile (RF) interference or other technical standard has been expanded to 698 Radio Service (CMRS) providers as a obstacles. In order to ensure that the MHz–6 GHz. result of WTB’s and OET’s adoption of hearing aid compatibility rules cover the • The RF interference level of technical standards for additional greatest number of wireless handsets wireless devices to hearing aids is frequency bands and air interfaces shall and reflect recent technological measured directly. Under the 2007 become effective no less than one year advances, the Wireless ANSI Standard, the RF field intensity of after release of the order for Telecommunications Bureau (WTB) and a wireless device was measured and manufacturers and Tier I (nationwide) Office of Engineering and Technology then an adjustment was applied to carriers and no less than 15 months after (OET) (collectively, ‘‘the Bureaus’’) estimate its potential for hearing aid release for other service providers. propose in the SFNPRM, pursuant to interference. The new measurement 5. The SFNPRM is limited in scope authority delegated by the Commission, method, along with the introduction of and does not address all pending issues to adopt the most current hearing aid a Modulation Interference Factor (MIF), regarding hearing aid compatibility. compatibility technical standard into allows testing procedures to be applied Specifically, on August 5, 2010, the the Commission’s rules. to operations over any RF air interface Commission released the 2010 II. Background or protocol. As a result of the change to SFNPRM, 75 FR 54546 September 8, a direct measurement methodology, the 2010, which sought comment on 2. To define and measure hearing aid extending the scope of the hearing aid ANSI C63.19–2011 revision is also able compatibility, the Commission’s rules compatibility rules beyond the current to eliminate certain conservative reference the 2007 revision of American category of CMRS, extending the in- assumptions that were incorporated into National Standards Institute (ANSI) store testing requirement beyond retail the 2007 standard. Thus, for example it technical standard C63.19 (the stores owned or operated by service will be approximately 2.2 dB easier for ‘‘2007ANSI Standard’’), formulated by providers, and permitting a user- a Global System for Mobile the Accredited Standards Committee controlled reduction of power as a ® Communications (GSM) phone to C63 —Electromagnetic Compatibility means to meet the hearing aid ® receive an M3 rating under the 2011 (ASC C63 ). Grants of certification compatibility standard for all operations issued before January 1, 2010, under version. • over the GSM air interface in the 1900 earlier versions of ANSI C63.19 remain Certain low power transmitters that MHz band. In addition, on December 28, valid. A handset is considered hearing are unlikely to cause unacceptable RF 2010, WTB sought comment on the aid-compatible for acoustic coupling if interference to hearing aids are operation and effectiveness of the it meets a rating of at least M3 under the exempted from RF emissions testing and Commission’s hearing aid compatibility 2007 ANSI Standard. A handset is are deemed to meet an M4 rating. rules, 76 FR 2625 January 14, 2011. The ® considered hearing aid-compatible for ASC C63 states that the improved tests issues raised in these notices will be inductive coupling if it meets a rating of in the 2011 ANSI Standard ‘‘are more addressed separately from the SFNPRM. at least T3. The 2007ANSI Standard correlated to the desired result.’’ Thus, specifies testing procedures for ‘‘[t]he new test methods are improved at III. Discussion determining the M-rating and T-rating of measuring the potential for hearing aid 6. The Bureaus propose to adopt the digital wireless handsets that operate interference.’’ 2011 ANSI Standard into the over air interfaces that, at the time it 4. The Commission has recognized Commission’s rules as an applicable was promulgated, were commonly used that revisions to the ANSI Standard may technical standard for evaluating the for wireless services in the 800–950 be necessary over time to improve hearing aid compatibility of wireless MHz and 1.6–2.5 GHz bands. hearing aid compatibility technical phones. The Bureaus believe doing so 3. When service rules were standards and accommodate would serve the public interest by established for the 700 MHz band, the technological advances and that the aligning the Commission’s rules with Commission stated its expectation that Commission’s rules should evolve to advances in technology and by bringing hearing aid compatibility standards reflect such revisions. In particular, to additional frequency bands and air would be developed for that band. It ensure that the hearing aid interfaces under the hearing aid

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77749

compatibility regime. The Bureaus period, any new handset containing months of Federal Register publication further tentatively conclude that operations that are not covered under of rules adopting the 2011 ANSI adoption of the new technical standard the 2007 ANSI Standard would Standard that meet hearing aid would not raise any major compliance effectively have to be tested using the compatibility criteria under previously issues or impose materially greater 2011 ANSI Standard. The Bureaus seek covered air interfaces, but that have obligations with respect to newly comment on these proposals. been tested and found not to meet such covered frequency bands and air 8. Under the existing rules, the criteria under one or more newly interfaces than those already imposed Commission’s benchmarks for covered air interfaces, shall include under Commission rules. The Bureaus manufacturers and service providers to adequate disclosure of the fact under seek comment on these tentative deploy hearing aid-compatible handsets rules to be promulgated by WTB and conclusions and whether adoption of apply to operations over those OET. In the absence of any suggestions the 2011 ANSI Standard would impose frequency bands that are covered under as to specific language to be used for new or additional costs on handset the 2007 ANSI Standard. Upon adoption handsets that have been tested under manufacturers. of the proposed rules, a transition newly covered air interfaces and found 7. Under the rules the Bureaus period would commence to apply these not to meet hearing aid compatibility propose, a manufacturer would be benchmarks to operations covered criteria, the Bureaus propose not to permitted to submit handsets for under the 2011 ANSI Standard. In the prescribe disclosure language in this certification using either the 2007 or 2010 SFNPRM, the Commission sought situation but to rely on a general comment on a two-year transition 2011 version of the ANSI Standard. disclosure requirement backed by case- period for applying hearing aid Consistent with the Commission’s by-case resolution in the event of compatibility benchmarks and other direction in the 2010 Second Report and disputes. The Bureaus understand that requirements to wireless handsets that Order, FR 54546 (2010), and the Multi- most handsets are expected to have little fall outside the subset of CMRS that is Band Principles agreed by difficulty meeting the hearing aid currently covered by Section 20.19(a). representatives of industry and compatibility rating criteria over Wi-Fi The Bureaus seek comment on whether consumer groups, a multi-band and/or (Wireless Fidelity) and other currently a similar transition period would multi-mode handset model would be existing or imminently expected air appropriately balance the design, considered hearing aid-compatible for interfaces that are outside the 2007 engineering, and marketing operations covered under the 2007 ANSI Standard. The Bureaus seek requirements of manufacturers and comment on this proposal and invite ANSI Standard if it obtains certification service providers with the needs of as meeting at least an M3 or T3 rating alternative proposals, including any consumers with hearing loss in the proposed disclosure language. for those operations and is launched context of the rulemaking Would a within 12 months of the Federal shorter transition period, but no less IV. Procedural Matters Register publication of rules adopting than the minimum periods of 12 months A. Initial Regulatory Flexibility Analysis the 2011 ANSI Standard. The will apply for manufacturers and Tier I carriers and even if the handset model has not 15 months for other service providers, 10. As required by the Regulatory obtained certification as hearing aid- better serve the public interest in Flexibility Act of 1980, as amended compatible for operations not covered expediting the availability of hearing (RFA), see 5 U.S.C. 603, the Wireless under the 2007ANSI Standard. As under aid-compatible phones while affording Telecommunications Bureau (WTB) and the existing rules, the Bureaus propose manufacturers sufficient time to test, the Office of Engineering and to continue requiring that a handset produce, and ship such handsets? Technology (OET) have prepared the model meet ANSI technical standards Alternatively is a period longer than two present Initial Regulatory Flexibility over all frequency bands and air years necessary? Consistent with the Analysis (IRFA) of the possible interfaces over which it operates in Commission’s current rules and the significant economic impact on a order to be considered hearing aid- minimum periods permitted under the substantial number of small entities of compatible over any air interference for Bureau’s delegated authority, should the policies and rules proposed in the (1) multi-band and/or multi-mode non-Tier I service providers be given an Second Further Notice of Proposed Rule handset models launched later than 12 additional three months to meet Making (SFNPRM). Written public months after Federal Register deployment benchmarks in order to comments are requested on the IRFA. publication of rules adopting the 2011 account for the difficulties they face in Comments must be identified as ANSI Standard and (2) handset models timely obtaining new handset models? responses to the IRFA and must be filed that only include operations covered Or, based on experience under the by the deadlines for comments on the under the 2007 ANSI Standard. The existing rules, do these service SFNPRM provided in the Dates section Bureaus further note that the providers need more than three months of this document. The Commission will Commission’s procedures do not permit additional time? send a copy of the SFNPRM, including a handset model to be tested and 9. Finally, the Commission’s rules the IRFA, to the Chief Counsel for certified partly under one revision and provide that whenever a manufacturers Advocacy of the Small Business partly under another. Therefore, if the or service provider discloses the hearing Administration (SBA). In addition, the proposed rule is adopted, during the 12- aid compatibility rating of a handset SFNPRM and IRFA (or summaries month transition period, a that has not been tested for hearing aid thereof) will be published in the Federal manufacturers that chooses to test the compatibility over a newly covered air Register. hearing aid compatibility of those interface, the disclosure shall include 11. Although Section 213 of the operations within a handset that are language stated in Section 20.19(f)(2). Consolidated Appropriations Act of only covered by the 2011 ANSI Handsets that have been tested and 2000 provides that the RFA shall not Standard and not covered under the received certification as hearing aid- apply to the rules and competitive 2007 ANSI Standard would have to test compatible, including those deemed to bidding procedures for frequencies in all of the operations in the handset meet an M4 rating without testing under the 746–806 MHz Band, the Bureaus using the 2011 ANSI Standard. ANSI C63.19–2011, shall be labeled as believe that it would serve the public Similarly, after the end of the transition such. Handsets launched within 12 interest to analyze the possible

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77750 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

significant economic impact of the any air interface. The SFNPRM seeks 3. Description and Estimate of the proposed policy and rule changes in the comment on the proposal. The purpose Number of Small Entities to Which the band on small entities. Accordingly, the of this proposed rule change is to limit Proposed Rules Would Apply IRFA contains an analysis of this impact the compliance burdens on businesses, 17. The RFA directs agencies to in connection with all spectrum that both large and small, with respect to provide a description of and, where falls within the scope of the SFNPRM, handset models that are already feasible, an estimate of the number of including spectrum in the 746–806 MHz deployed or in development at the time small entities that may be affected by Band. new rules are adopted. the proposed rules, if adopted. The RFA 1. Need for, and Objectives of, the 14. The SFNPRM also seeks comment generally defines the term ‘‘small Proposed Rules on how to phase in the 2011 ANSI entity’’ as having the same meaning as Standard over a defined period of time. 12. The SFNPRM proposes to amend the terms ‘‘small business,’’ ‘‘small The Bureaus seeks comment on whether organization,’’ and ‘‘small governmental Section 20.19 of the Commission’s rules a two-year period for applying the by adopting the new ANSI C63.19–2011 jurisdiction.’’ In addition, the term hearing aid-compatible handset ‘‘small business’’ has the same meaning standard (the ‘‘2011 ANSI Standard’’) as deployment benchmarks to newly an applicable hearing aid compatibility as the term ‘‘small business concern’’ covered air interfaces would under the Small Business Act. A small technical standard. The standard appropriately balance the design, establishes testing procedures to business concern is one which: (1) Is engineering, and marketing independently owned and operated; (2) establish the M-rating (acoustic requirements of manufacturers and coupling) and T-rating (inductive is not dominant in its field of operation; service providers with the needs of coupling) to gauge the hearing aid and (3) satisfies any additional criteria consumers with hearing loss for compatibility of handsets. Specifically, established by the SBA. To assist the compatible handsets over the newest the SFNPRM seeks comment on Commission in analyzing the total network technologies. The Bureaus also tentative conclusions that adopting the number of potentially affected small seek comment on whether non-Tier I new 2011 ANSI Standard would raise entities, the Commission requests service providers should be given no major compliance issues and would commenters to estimate the number of additional time to meet deployment not impose materially greater small entities that may be affected by benchmarks in order to account for the obligations with respect to proposed any rule changes that might result from difficulties they face in timely obtaining newly covered frequency bands and air the SFNPRM. interfaces than those already imposed new handset models. The purpose of 18. Small Businesses, Small under the Commission’s rules. By this proposed rule change is to create a Organizations, and Small Governmental bringing additional frequency bands and time frame for implementation that Jurisdictions. The Bureaus action may, air interfaces under the hearing aid would be the most efficient and least over time, affect small entities that are compatibility regime, and by aligning burdensome for businesses, both large not easily categorized at present. The the Commission’s rules with the most and small, while ensuring that Bureaus therefore describe here, at the current measurement practices, the consumers with hearing loss have outset, three comprehensive, statutory proposed rule change would help timely access to wireless small entity size standards. First, ensure that consumers with hearing loss communications. nationwide, there are a total of are able to access wireless 15. Finally, the SFNPRM seeks approximately 27.5 million small communications services through a comment on a proposal not to prescribe businesses, according to the SBA. In wide selection of handsets without specific disclosure language to be used addition, a ‘‘small organization’’ is experiencing disabling interference or for handsets that meet hearing aid generally ‘‘any not-for-profit enterprise other technical obstacles. compatibility criteria over previously which is independently owned and 13. Under the rules the Bureaus covered air interfaces but have been operated and is not dominant in its propose, beginning on the date that final tested and found not to meet such field.’’ Nationwide, as of 2007, there rules become effective, a manufacturer criteria over Wi-Fi (Wireless Fidelity) or were approximately 1,621,315 small would be permitted to submit handsets other air interfaces that are outside the organizations. Finally, the term ‘‘small for certification using either ANSI 2007 ANSI Standard. Rather, the governmental jurisdiction’’ is defined C63.19 2007 (‘‘the 2007 ANSI Bureaus would rely on a general generally as ‘‘governments of cities, Standard’’) or the 2011 ANSI Standard. requirement to disclose the hearing aid towns, townships, villages, school A multi-band and/or multi-mode compatibility status of such handsets. districts, or special districts, with a handset model launched earlier than 12 The Bureaus seek comment on this population of less than fifty thousand.’’ months after Federal Register tentative conclusion and invite Census Bureau data for 2011 indicate publication of new rules codifying the alternative proposals. This proposed that there were 89,476 local 2011 ANSI Standard would be rule change would be a minimally governmental jurisdictions in the considered hearing aid-compatible for intrusive means of ensuring that United States. The Bureaus estimate operations covered under the current consumers with hearing loss have the that, of this total, as many as 88,506 the 2007 ANSI Standard. For multi-band information they need to choose a entities may qualify as ‘‘small and/or multi-mode handset models handset that will operate correctly with governmental jurisdictions.’’ Thus, the launched after this period, as well as for their hearing aid or cochlear implant. Bureaus estimate that most handset models that only include 2. Legal Basis governmental jurisdictions are small. operations covered under the 2007 19. Cellular Licensees. The SBA has ANSI Standard, the Bureaus propose to 16. The potential actions about which developed a small business size continue applying the current principle comment is sought in the SFNPRM standard for small businesses in the that a handset model must meet ANSI would be authorized pursuant to the category ‘‘Wireless Telecommunications C63.19 technical standards over all authority contained in Sections 4(i), Carriers (except satellite).’’ Under that frequency bands and air interfaces over 303(r), and 710 of the Communications SBA category, a business is small if it which it operates in order to be Act of 1934, as amended, 47 U.S.C. has 1,500 or fewer employees. The considered hearing aid-compatible over 154(i), 303(r), and 610. census category of ‘‘Cellular and Other

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77751

Wireless Telecommunications’’ is no the D, E, and F Blocks. On April 15, Basic Economic Area licenses. One longer used and has been superseded by 1999, the Commission completed the re- bidder claiming small business status the larger category ‘‘Wireless auction of 347 C–, D–, E–, and F–Block won five licenses. Telecommunications Carriers (except licenses in Auction No. 22. Of the 57 24. The auction of the 1,050 800 MHz satellite).’’ The Census Bureau defines winning bidders in that auction, 48 SMR geographic area licenses for the this larger category to include ‘‘* * * claimed small business status and won General Category channels was establishments engaged in operating and 277 licenses. conducted in 2000. Eleven bidders that maintaining switching and transmission 22. On January 26, 2001, the won 108 geographic area licenses for the facilities to provide communications via Commission completed the auction of General Category channels in the 800 the airwaves. Establishments in this 422 C and F Block Broadband PCS MHz SMR band qualified as small industry have spectrum licenses and licenses in Auction No. 35. Of the 35 businesses under the $15 million size provide services using that spectrum, winning bidders in that auction, 29 standard. In an auction completed in such as cellular phone services, paging claimed small business status. 2000, a total of 2,800 Economic Area services, wireless Internet access, and Subsequent events concerning Auction licenses in the lower 80 channels of the wireless video services.’’ 35, including judicial and agency 800 MHz SMR service were awarded. Of 20. In this category, the SBA has determinations, resulted in a total of 163 the 22 winning bidders, 19 claimed deemed a wireless telecommunications C and F Block licenses being available ‘‘small business’’ status and won 129 carrier to be small if it has fewer than for grant. On February 15, 2005, the licenses. Thus, combining all three 1,500 employees. For this category of Commission completed an auction of auctions, 40 winning bidders for carriers, Census data for 2007, which 242 C–, D–, E–, and F–Block licenses in geographic area licenses in the 800 MHz supersede similar data from the 2002 Auction No. 58. Of the 24 winning SMR band claimed status as small Census, shows 1,383 firms in this bidders in that auction, 16 claimed businesses. category. Of these 1,383 firms, only 15 small business status and won 156 25. In addition, there are numerous (approximately 1%) had 1,000 or more licenses. On May 21, 2007, the incumbent site-by-site SMR licensees employees. While there is no precise Commission completed an auction of 33 and licensees with extended Census data on the number of firms in licenses in the A, C, and F Blocks in implementation authorizations in the the group with fewer than 1,500 Auction No. 71. Of the 12 winning 800 and 900 MHz bands. The Bureaus employees, it is clear that at least the bidders in that auction, five claimed do not know how many firms provide 1,368 firms with fewer than 1,000 small business status and won 18 800 MHz or 900 MHz geographic area employees would be found in that licenses. On August 20, 2008, the SMR service pursuant to extended group. Thus, at least 1,368 of these Commission completed the auction of implementation authorizations, nor how 1,383 firms (approximately 99%) had 20 C–, D–, E–, and F–Block Broadband many of these providers have annual fewer than 1,500 employees. PCS licenses in Auction No. 78. Of the revenues of no more than $15 million. Accordingly, the Commission estimates eight winning bidders for Broadband One firm has over $15 million in that at least 1,368 (approximately 99%) PCS licenses in that auction, six claimed revenues. In addition, the Bureaus do had fewer than 1,500 employees and, small business status and won 14 not know how many of these firms have thus, would be considered small under licenses. 1500 or fewer employees. The Bureaus the applicable SBA size standard. 23. Specialized Mobile Radio. The assume, for purposes of the analysis, 21. Broadband Personal Commission awards ‘‘small entity’’ that all of the remaining existing Communications Service. The bidding credits in auctions for extended implementation broadband personal communications Specialized Mobile Radio (SMR) authorizations are held by small services (PCS) spectrum is divided into geographic area licenses in the 800 MHz entities, as that small business size six frequency blocks designated A and 900 MHz bands to firms that had standard is approved by the SBA. through F, and the Commission has held revenues of no more than $15 million in 26. Advanced Wireless Services auctions for each block. The each of the three previous calendar (1710–1755 MHz and 2110–2155 MHz Commission initially defined a ‘‘small years. The Commission awards ‘‘very bands (AWS–1); 1915–1920 MHz, 1995– business’’ for C– and F–Block licenses small entity’’ bidding credits to firms 2000 MHz, 2020–2025 MHz and 2175– as an entity that has average gross that had revenues of no more than $3 2180 MHz bands (AWS–2); 2155–2175 revenues of $40 million or less in the million in each of the three previous MHz band (AWS–3). For the AWS–1 three previous calendar years. For F– calendar years. The SBA has approved bands, the Commission has defined a Block licenses, an additional small these small business size standards for ‘‘small business’’ as an entity with business size standard for ‘‘very small the 900 MHz Service. The Commission average annual gross revenues for the business’’ was added and is defined as has held auctions for geographic area preceding three years not exceeding $40 an entity that, together with its affiliates, licenses in the 800 MHz and 900 MHz million, and a ‘‘very small business’’ as has average gross revenues of not more bands. The 900 MHz SMR auction was an entity with average annual gross than $15 million for the preceding three completed in 1996. Sixty bidders revenues for the preceding three years calendar years. These small business claiming that they qualified as small not exceeding $15 million. In 2006, the size standards, in the context of businesses under the $15 million size Commission conducted its first auction broadband PCS auctions, have been standard won 263 geographic area of AWS–1 licenses. In that initial AWS– approved by the SBA. No small licenses in the 900 MHz SMR band. The 1 auction, 31 winning bidders identified businesses within the SBA-approved 800 MHz SMR auction for the upper 200 themselves as very small businesses. small business size standards bid channels was conducted in 1997. Ten Twenty-six of the winning bidders successfully for licenses in Blocks A bidders claiming that they qualified as identified themselves as small and B. There were 90 winning bidders small businesses under the $15 million businesses. In a subsequent 2008 that claimed small business status in the size standard won 38 geographic area auction, the Commission offered 35 first two C–Block auctions. A total of 93 licenses for the upper 200 channels in AWS–1 licenses. Four winning bidders bidders that claimed small business the 800 MHz SMR band. A second identified themselves as very small status won approximately 40 percent of auction for the 800 MHz band was businesses, and three of the winning the 1,479 licenses in the first auction for conducted in 2002 and included 23 bidders identified themselves as small

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77752 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

businesses. For AWS–2 and AWS–3, service is an entity that, together with MSAs/RSAs and one license in each of although the Bureaus do not know for its affiliates and controlling principals, the six Economic Area Groupings certain which entities are likely to apply has average gross revenues not (EAGs)) was conducted in 2002. Of the for these frequencies, the Bureaus note exceeding $40 million for the preceding 740 licenses available for auction, 484 that these bands are comparable to those three years. Additionally, a ‘‘very small licenses were won by 102 winning used for cellular service and personal business’’ is an entity that, together with bidders. Seventy-two of the winning communications service. The its affiliates and controlling principals, bidders claimed small business, very Commission has not yet adopted size has average gross revenues that are not small business or entrepreneur status standards for the AWS–2 or AWS–3 more than $15 million for the preceding and won licenses. A second auction bands but has proposed to treat both three years. SBA approval of these commenced on May 28, 2003, closed on AWS–2 and AWS–3 similarly to definitions is not required. In 2000, the June 13, 2003, and included 256 broadband PCS service and AWS–1 Commission conducted an auction of 52 licenses. Seventeen winning bidders service due to the comparable capital Major Economic Area (‘‘MEA’’) licenses. claimed small or very small business requirements and other factors, such as Of the 104 licenses auctioned, 96 status, and nine winning bidders issues involved in relocating licenses were sold to nine bidders. Five claimed entrepreneur status. In 2005, incumbents and developing markets, of these bidders were small businesses the Commission completed an auction technologies, and services. that won a total of 26 licenses. A second of 5 licenses in the Lower 700 MHz 27. Rural Radiotelephone Service. The auction of 700 MHz Guard Band band. All three winning bidders claimed Commission has not adopted a size licenses commenced and closed in small business status. standard for small businesses specific to 2001. All eight of the licenses auctioned 32. In 2007, the Commission the Rural Radiotelephone Service. A were sold to three bidders. One of these reexamined its rules governing the 700 significant subset of the Rural bidders was a small business that won MHz band in the 700 MHz Second Radiotelephone Service is the Basic a total of two licenses. Report and Order. An auction of A, B Exchange Telephone Radio System 30. Upper 700 MHz Band Licenses. In and E block 700 MHz licenses was held (‘‘BETRS’’). In the present context, the the 700 MHz Second Report and Order, in 2008. Twenty winning bidders Bureaus will use the SBA’s small the Commission revised its rules claimed small business status (those business size standard applicable to regarding Upper 700 MHz licenses. On with attributable average annual gross Wireless Telecommunications Carriers January 24, 2008, the Commission revenues that exceed $15 million and do (except Satellite), i.e., an entity commenced Auction 73 in which not exceed $40 million for the preceding employing no more than 1,500 persons. several licenses in the Upper 700 MHz three years). Thirty three winning There are approximately 1,000 licensees band were available for licensing: 12 bidders claimed very small business in the Rural Radiotelephone Service, Regional Economic Area Grouping status (those with attributable average and the Bureaus estimate that there are licenses in the C Block, and one annual gross revenues that do not 1,000 or fewer small entity licensees in nationwide license in the D Block. The exceed $15 million for the preceding the Rural Radiotelephone Service that auction concluded on March 18, 2008, three years). may be affected by the rules and with 3 winning bidders claiming very 33. Offshore Radiotelephone Service. policies adopted herein. small business status (those with These services operate on several UHF 28. Wireless Communications attributable average annual gross television broadcast channels that are Services. This service can be used for revenues that do not exceed $15 million not used for television broadcasting in fixed, mobile, radiolocation, and digital for the preceding three years) and the coastal areas of states bordering the audio broadcasting satellite uses in the winning five licenses. Gulf of Mexico. There are presently 2305–2320 MHz and 2345–2360 MHz 31. Lower 700 MHz Band Licenses. approximately 55 licensees in the bands. The Commission defined ‘‘small The Commission previously adopted service. The Commission is unable to business’’ for the wireless criteria for defining three groups of estimate at this time the number of communications services (WCS) auction small businesses for purposes of Offshore Radiotelephone Service as an entity with average gross revenues determining their eligibility for special licensees that would qualify as small of $40 million for each of the three provisions such as bidding credits. The under the SBA’s small business size preceding years, and a ‘‘very small Commission defined a ‘‘small business’’ standard for the category of Wireless business’’ as an entity with average as an entity that, together with its Telecommunications Carriers (except gross revenues of $15 million for each affiliates and controlling principals, has Satellite). Under that SBA small of the three preceding years. The SBA average gross revenues not exceeding business size standard, a business is has approved these definitions. The $40 million for the preceding three small if it has 1,500 or fewer employees. Commission auctioned geographic area years. A ‘‘very small business’’ is Census data for 2007, which supersede licenses in the WCS service. In the defined as an entity that, together with data contained in the 2002 Census, auction, which commenced on April 15, its affiliates and controlling principals, show that there were 1,383 firms in this 1997 and closed on April 25, 1997, there has average gross revenues that are not category that operated that year. Of were seven bidders that won 31 licenses more than $15 million for the preceding those 1,383, 1,368 had fewer than 1000 that qualified as very small business three years. Additionally, the lower 700 employees, and 15 firms had more than entities, and one bidder that won one MHz Service had a third category of 1000 employees. Thus under this license that qualified as a small business small business status for Metropolitan/ category and the associated small entity. Rural Service Area (MSA/RSA) business size standard, the majority of 29. 700 MHz Guard Band Licenses. In licenses—‘‘entrepreneur’’—which is firms can be considered small. the 700 MHz Guard Band Order, the defined as an entity that, together with 34. Broadband Radio Service and Commission adopted size standards for its affiliates and controlling principals, Educational Broadband Service. ‘‘small businesses’’ and ‘‘very small has average gross revenues that are not Broadband Radio Service systems, businesses’’ for purposes of determining more than $3 million for the preceding previously referred to as Multipoint their eligibility for special provisions three years. The SBA approved these Distribution Service (‘‘MDS’’) and such as bidding credits and installment small size standards. An auction of 740 Multichannel Multipoint Distribution payments. A small business in this licenses (one license in each of the 734 Service (‘‘MMDS’’) systems, and

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77753

‘‘wireless cable,’’ transmit video EBS. There are presently 2,032 EBS to provide a variety of services with programming to subscribers and provide licensees. All but 100 of these licenses opportunities to participate in the two-way high speed data operations are held by educational institutions. auction of licenses for this spectrum and using the microwave frequencies of the Educational institutions are included in will afford such licensees, who may Broadband Radio Service (‘‘BRS’’) and the analysis as small entities. Thus, the have varying capital costs, substantial Educational Broadband Service (‘‘EBS’’) Bureaus estimate that at least 1,932 flexibility for the provision of services. (previously referred to as the licensees are small businesses. Since The Commission noted that it had long Instructional Television Fixed Service 2007, Cable Television Distribution recognized that bidding preferences for (‘‘ITFS’’)). In connection with the 1996 Services have been defined within the qualifying bidders provide such bidders BRS auction, the Commission broad economic census category of with an opportunity to compete established a small business size Wired Telecommunications Carriers; successfully against large, well-financed standard as an entity that had annual that category is defined as follows: entities. The Commission also noted average gross revenues of no more than ‘‘This industry comprises that it had found that the use of tiered $40 million in the previous three establishments primarily engaged in or graduated small business definitions calendar years. The BRS auctions operating and/or providing access to is useful in furthering its mandate under resulted in 67 successful bidders transmission facilities and infrastructure Section 47 U.S.C. 309(j) to promote obtaining licensing opportunities for that they own and/or lease for the opportunities for and disseminate 493 Basic Trading Areas (‘‘BTAs’’). Of transmission of voice, data, text, sound, licenses to a wide variety of applicants. the 67 auction winners, 61 met the and video using wired An auction for one license in the 1670– definition of a small business. BRS also telecommunications networks. 1674 MHz band commenced on April includes licensees of stations authorized Transmission facilities may be based on 30, 2003 and closed the same day. One prior to the auction. At this time, the a single technology or a combination of license was awarded. The winning Bureaus estimate that of the 61 small technologies.’’ For these services, the bidder was not a small entity. business BRS auction winners, 48 Commission uses the SBA small 37. Radio and Television remain small business licensees. In business size standard for the category Broadcasting and Wireless addition to the 48 small businesses that ‘‘Wireless Telecommunications Carriers Communications Equipment hold BTA authorizations, there are (except satellite),’’ which is 1,500 or Manufacturing. The Census Bureau approximately 392 incumbent BRS fewer employees. To gauge small defines this category as follows: ‘‘This licensees that are considered small business prevalence for these cable industry comprises establishments entities. After adding the number of services the Bureaus must, however, use primarily engaged in manufacturing small business auction licensees to the the most current census data. Census radio and television broadcast and number of incumbent licensees not data for 2007, which supersede data wireless communications equipment. already counted, the Bureaus find that contained in the 2002 Census, show that Examples of products made by these there are currently approximately 440 there were 1,383 firms that operated that establishments are: Transmitting and BRS licensees that are defined as small year. Of those 1,383, 1,368 had fewer receiving antennas, cable television businesses under either the SBA than 100 employees, and 15 firms had equipment, GPS equipment, pagers, standard or the Commission’s rules. In more than 100 employees. Thus under cellular phones, mobile 2009, the Commission conducted this category and the associated small communications equipment, and radio Auction 86, the sale of 78 licenses in the business size standard, the majority of and television studio and broadcasting BRS areas. The Commission offered firms can be considered small. equipment.’’ The SBA has developed a three levels of bidding credits: (i) A small business size standard for Radio 36. Government Transfer Bands. The and Television Broadcasting and bidder with attributed average annual Commission adopted small business gross revenues that exceed $15 million Wireless Communications Equipment size standards for the unpaired 1390– Manufacturing, which is: All such firms and do not exceed $40 million for the 1392 MHz, 1670–1675 MHz, and the preceding three years (small business) having 750 or fewer employees. paired 1392–1395 MHz and 1432–1435 According to Census Bureau data for received a 15 percent discount on its MHz bands. Specifically, with respect to winning bid; (ii) a bidder with 2007, there were a total of 939 these bands, the Commission defined an establishments in this category that attributed average annual gross revenues entity with average annual gross that exceed $3 million and do not operated for part or all of the entire year. revenues for the three preceding years Of this total, 784 had less than 500 exceed $15 million for the preceding not exceeding $40 million as a ‘‘small three years (very small business) employees and 155 had more than 100 business,’’ and an entity with average employees. Thus, under this size received a 25 percent discount on its annual gross revenues for the three winning bid; and (iii) a bidder with standard, the majority of firms can be preceding years not exceeding $15 considered small. attributed average annual gross revenues million as a ‘‘very small business.’’ SBA that do not exceed $3 million for the has approved these small business size 4. Description of Projected Reporting, preceding three years (entrepreneur) standards for the aforementioned bands. Recordkeeping, and Other Compliance received a 35 percent discount on its Correspondingly, the Commission Requirements for Small Entities winning bid. Auction 86 concluded in adopted a bidding credit of 15 percent 38. The proposed rules will not 2009 with the sale of 61 licenses. Of the for ‘‘small businesses’’ and a bidding impose any new reporting, ten winning bidders, two bidders that credit of 25 percent for ‘‘very small recordkeeping, or information collection claimed small business status won four businesses.’’ This bidding credit requirements on small entities. licenses; one bidder that claimed very structure was found to have been small business status won three consistent with the Commission’s 5. Steps Proposed To Minimize licenses; and two bidders that claimed schedule of bidding credits, which may Significant Economic Impact on Small entrepreneur status won six licenses. be found at Section 1.2110(f)(2) of the Entities, and Significant Alternatives 35. In addition, the SBA’s Cable Commission’s rules. The Commission Considered Television Distribution Services small found that these two definitions will 39. The RFA requires an agency to business size standard is applicable to provide a variety of businesses seeking describe any significant, specifically

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77754 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

small business alternatives that it has others with respect to handset models disclosure requirement backed by case- considered in reaching its proposed that are currently deployed or in by-case resolution in the event of approach, which may include the development. For multi-band and/or disputes. The Bureaus seek comment on following four alternatives (among multi-mode handset models launched whether any alternative proposals may others): ‘‘(1) the establishment of after this period, as well as for handset further reduce the impact on small differing compliance or reporting models that only include operations entities. requirements or timetables that take into covered under the 2007 ANSI Standard, 45. For the duration of the docketed account the resources available to small the Bureaus propose to retain the proceeding, the Commission will entities; (2) the clarification, current principle that a handset model continue to examine alternatives with consolidation, or simplification of must meet ANSI C63.19 technical the objectives of eliminating compliance or reporting requirements standards over all frequency bands and unnecessary regulations and minimizing under the rule for small entities; (3) the air interfaces over which it operates in any significant economic impact on use of performance, rather than design, order to be considered hearing aid- small entities. standards; and (4) exemption from compatible over any air interface. The coverage of the rule, or any part thereof, Bureaus invite commenters to suggest 6. Federal Rules That May Duplicate, for small entities.’’ similar alternatives that may ease Overlap, or Conflict With the Proposed 40. The Bureaus seek comment compliance burdens on small entities. Rules generally on the effect the rule changes 43. As a result of the proposed 46. None. considered in the SFNPRM would have adoption of the 2011 ANSI Standard, on small entities, on whether alternative after an appropriate transition period B. Initial Paperwork Reduction Act rules should be adopted for small the deployment benchmarks set forth in Analysis entities in particular, and on what effect paragraphs (c) and (d) of Section 20.19 47. The SFNPRM does not contain such alternative rules would have on would become applicable to proposed information collection(s) those entities. The Bureaus invite manufacturers and service providers subject to the Paperwork Reduction Act comment on ways in which the offering handsets that operate over of 1995 (PRA), Public Law 104–13. In Commission can achieve its goals while newly covered frequency bands and air addition, therefore, it does not contain minimizing the burden on small interfaces. The Bureaus seek comment any new or modified information wireless service providers, equipment on alternatives to the two-year transition collection burden for small business manufacturers, and other entities. period that would appropriately balance concerns with fewer than 25 employees, 41. More specifically, the Bureaus the design, engineering, and marketing pursuant to the Small Business seek comment on possible alternatives requirements of manufacturers and Paperwork Relief Act of 2002, Public to their tentative conclusion to adopt service providers with the needs of Law 107–198, see 44 U.S.C. 3506(c)(4). the new 2011 ANSI Standard into the consumers with hearing loss for Commission’s rules as a permissible compatible handsets over the newest C. Other Procedural Matters technical standard for evaluating the network technologies. In recognition 1. Ex Parte Rules—Permit-But-Disclose hearing aid compatibility of wireless that smaller service providers may phones. The Bureaus note that adopting encounter greater difficulties 48. The proceeding the SFNPRM the new technical standard as transitioning to the 2011 ANSI initiates shall be treated as a ‘‘permit- permissible rather than mandatory may Standard, the Bureaus propose in the but-disclose’’ proceeding in accordance ease burdens on manufacturers, SFNPRM that smaller service providers with the Commission’s ex parte rules, including small entities, and the should have three months longer to 47 CFR 1.1200 et seq. Persons making ex Bureaus invite commenters to suggest transition than Tier I carriers. The parte presentations must file a copy of alternatives that may further reduce Bureaus invite comment on whether any written presentation or a possible burdens on small entities. The alternative transition periods, memorandum summarizing any oral Bureaus also tentatively conclude that particularly for small entities, would presentation within two business days adoption of this new technical standard further lessen the burden on small after the presentation (unless a different would not raise any major compliance entities while protecting the interest of deadline applicable to the Sunshine issues or impose materially greater hard-of-hearing consumers in having period applies). Persons making oral ex obligations with respect to newly access to a wide variety of wireless parte presentations are reminded that covered frequency bands and air handsets. memoranda summarizing the interfaces than those already imposed 44. Finally, handsets launched up to presentation must (1) list all persons under Commission rules. The Bureaus 12 months after Federal Register attending or otherwise participating in seek comment on whether alternatives publication of rules the 2011 ANSI the meeting at which the ex parte to adopting this new technical standard Standard that meet hearing aid presentation was made, and (2) would impose lesser obligations on compatibility criteria under previously summarize all data presented and small entities. covered air interfaces, but that have arguments made during the 42. Under the rules the Bureaus been tested and found not to meet such presentation. If the presentation propose in the SFNPRM, a multi-band criteria under one or more newly consisted in whole or in part of the and/or multi-mode handset model covered air interfaces, shall include presentation of data or arguments launched earlier than 12 months after adequate disclosure of this fact under already reflected in the presenter’s Federal Register publication of new rules to be promulgated by WTB and written comments, memoranda or other rules codifying the 2011 ANSI Standard OET. In the absence of any suggestions filings in the proceeding, the presenter would be considered hearing aid- as to specific language to be used for may provide citations to such data or compatible for operations covered under handsets that have been tested under arguments in his or her prior comments, the 2007 ANSI Standard even if it has newly covered air interfaces and found memoranda, or other filings (specifying not obtained certification as being not to meet hearing aid compatibility the relevant page and/or paragraph hearing aid-compatible for its other criteria, the Bureaus propose not to numbers where such data or arguments operations. This proposal is intended to prescribe disclosure language in this can be found) in lieu of summarizing reduce burdens on small entities and situation but to rely on a general them in the memorandum. Documents

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77755

shown or given to Commission staff fi U.S. Postal Service first-class, PART 20—COMMERICIAL MOBILE during ex parte meetings are deemed to Express, and Priority mail must be SERVICES be written ex parte presentations and addressed to 445 12th Street SW., must be filed consistent with rule Washington DC 20554. 1. The authority citation for part 20 is 1.1206(b). In proceedings governed by 50. People with Disabilities: To revised to read as follows: rule 1.49(f) or for which the request materials in accessible formats Authority: 47 U.S.C. 154, 160, 201, 251– Commission has made available a for people with disabilities (Braille, 254, 301, 303, 316, and 332 unless otherwise method of electronic filing, written ex large print, electronic files, audio noted. Section 20.12 is also issued under 47 parte presentations and memoranda format), send an email to [email protected] U.S.C. 1302. Section 20.19 is also issued summarizing oral ex parte or call the Consumer & Governmental under 47 U.S.C. 610. presentations, and all attachments Affairs Bureau at (202) 2. Section 20.19 is amended by thereto, must be filed through the 418–0530 (voice), (202) 418–0432 (tty). revising paragraphs (a)(1), (b)(1) and (2), electronic comment filing system 51. For further information regarding adding paragraph (b)(3), revising available for that proceeding, and must the SFNPRM, contact Michael Rowan, paragraphs (b)(5), (c) introductory text, be filed in their native format (e.g., .doc, Wireless Telecommunications Bureau, (d) introductory text, revising (f)(2), .xml, .ppt, searchable .pdf). Participants (202) 418–1883, email Michael.Rowan@ (f)(2)(i), and (f)(2)(ii) and adding in the proceeding should familiarize fcc.gov, or Saurbh Chhabra, Wireless paragraph (f)(2)(iii) to read as follows: themselves with the Commission’s ex Telecommunications Bureau, (202) 418– parte rules. 2266, email [email protected]. § 20.19 Hearing aid-compatible mobile handsets. Comment Filing Procedures Ordering Clauses (a) * * * 49. Pursuant to sections 1.415 and 52. Accordingly, it is ordered, (1) The hearing aid compatibility 1.419 of the Commission’s rules, 47 CFR pursuant to Sections 4(i), 303(r), and requirements of this section apply to 1.415, 1.419, interested parties may file 710 of the Communications Act of 1934, providers of digital CMRS in the United comments and reply comments on or 47 U.S.C. 154(i), 303(r) and 610, that the States to the extent that they offer real- before the dates indicated in the DATES second further notice of proposed time, two-way switched voice or data section of this document. Comments rulemaking is hereby adopted. service that is interconnected with the may be filed using the Commission’s 53. It is further ordered that pursuant public switched network and utilizes an Electronic Comment Filing System to applicable procedures set forth in in-network switching facility that (ECFS). See Electronic Filing of Sections 1.415 and 1.419 of the enables the provider to reuse Documents in Rulemaking Proceedings, Commission’s Rules, 47 CFR 1.415, frequencies and accomplish seamless 63 FR 24121 (1998). 1.419, interested parties may file hand-offs of subscriber calls, and such fi Electronic Filers: Comments may comments on the second further notice service is provided over frequencies in be filed electronically using the Internet of proposed rulemaking on or before 30 the 698 MHz to 6 GHz bands. by accessing the ECFS: http://fjallfoss. days after publication of the second * * * * * fcc.gov/ecfs2/. further notice of proposed rulemaking (b) * * * fi Paper Filers: Parties who choose to in the Federal Register and reply (1) For radio frequency interference. A file by paper must file an original and comments on or before 45 days after wireless handset submitted for one copy of each filing. If more than one publication in the Federal Register. equipment certification or for a docket or rulemaking number appears in 54. It is further ordered that the permissive change relating to hearing the caption of the proceeding, filers Commission’s Consumer & aid compatibility must meet, at a must submit two additional copies for Governmental Affairs Bureau, Reference minimum, the M3 rating associated with each additional docket or rulemaking Information Center, shall send a copy of the technical standard set forth in either number. the second further notice of proposed the standard document ‘‘American Filings can be sent by hand or rulemaking, including the Initial National Standard Methods of messenger delivery, by commercial Regulatory Flexibility Analysis, to the Measurement of Compatibility Between overnight courier, or by first-class or Chief Counsel for Advocacy of the Small Wireless Communication Devices and overnight U.S. Postal Service mail. All Business Administration. Hearing Aids,’’ ANSI C63.19–2007 (June filings must be addressed to the 55. The action is taken under 8, 2007) or ANSI C63.19–2011 (May 27, Commission’s Secretary, Office of the delegated authority pursuant to Sections 2011). Any grants of certification issued Secretary, Federal Communications 0.241(a)(1), 0.331(d), and 20.19(k) of the before January 1, 2010, under previous Commission. Commission’s rules, 47 CFR 0.241(a)(1), versions of ANSI C63.19 remain valid fi All hand-delivered or 0.331(d), and 20.19(k). for hearing aid compatibility purposes. messenger-delivered paper filings for (2) For inductive coupling. A wireless List of Subjects 47 CFR Part 20 the Commission’s Secretary must be handset submitted for equipment delivered to FCC Headquarters at 445 Communications common carriers, certification or for a permissive change 12th St. SW., Room TW–A325, Communications equipment, relating to hearing aid compatibility Washington, DC 20554. The filing hours Incorporated by reference, and Radio. must meet, at a minimum, the T3 rating are 8 a.m. to 7 p.m. All hand deliveries Federal Communications Commission. associated with the technical standard must be held together with rubber bands Rick Kaplan, set forth in either the standard or fasteners. Any envelopes and boxes document ‘‘American National Standard Chief, Wireless Telecommunications Bureau. must be disposed of before entering the Methods of Measurement of building. Julius P. Knapp, Compatibility Between Wireless fi Commercial overnight mail Chief, Office of Engineering and Technology. Communication Devices and Hearing (other than U.S. Postal Service Express For the reasons discussed in the Aids,’’ ANSI C63.19–2007 (June 8, 2007) Mail and Priority Mail) must be sent to preamble, the Federal Communications or ANSI C63.19–2011 (May 27, 2011). 9300 East Hampton Drive, Capitol Commission proposes to amend 47 CFR Any grants of certification issued before Heights, MD 20743. part 20 as follows: January 1, 2010, under previous

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77756 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

versions of ANSI C63.19 remain valid These materials are incorporated as they (2) Disclosure requirements relating to for hearing aid compatibility purposes. exist on the date of the approval, and handsets treated as hearing aid- (3) Handsets operating over multiple notice of any change in these materials compatible over fewer than all their frequency bands or air interfaces. will be published in the Federal operations. (i) Except as provided in paragraph Register. The materials are available for (i) Each manufacturer and service (b)(3)(ii) of this section, a wireless inspection at the Federal provider shall ensure that, wherever it handset used for digital CMRS only over Communications Commission (FCC), provides hearing aid compatibility the 698 MHz to 6 GHz frequency bands 445 12th St. SW., Reference Information ratings for a handset that is considered is hearing aid-compatible with regard to Center, Room CY–A257, Washington, hearing aid-compatible for some of its radio frequency interference or DC 20554 and at the National Archives operations under paragraph (b)(3)(ii) of inductive coupling if it meets the and Records Administration (NARA). this section and that has not been tested applicable technical standard(s) set For information on the availability of for hearing aid compatibility under forth in paragraphs (b)(1) and (b)(2) of these materials at NARA, call (202) 741– ANSI C63.19–2011 (May 27, 2011), or this section for all frequency bands and 6030, or go to: http://www.archives.gov/ any handset that operates over air interfaces over which it operates, federal_register/ frequencies outside of the 698 MHz to and the handset has been certified as code_of_federal_regulations/ 6 GHz bands, it discloses to consumers, compliant with the test requirements for ibr_locations.html. by clear and effective means (e.g., the applicable standard pursuant to The materials are also available for inclusion of call-out cards or other media, revisions to packaging materials, § 2.1033(d) of the chapter. A wireless purchase from IEEE Operations Center, supplying of information on Web sites), handset that incorporates operations 445 Hoes Lane, Piscataway, NJ 08854– that the handset has not been rated for outside the 698 MHz to 6 GHz frequency 4141, by calling (732) 981–0060, or hearing aid compatibility with respect bands is hearing aid-compatible if the going to http://www.ieee.org/portal/site. handset otherwise satisfies the to some of its operation(s). The (c) Phase-in of requirements relating disclosure shall include the following requirements of this paragraph. to radio frequency interference. The (ii) A handset that is introduced by language: following applies to each manufacturer This phone has been tested and rated the manufacturer prior to [12 months and service provider that offers wireless after publication of the Final Rule in the for use with hearing aids for some of the handsets used in the delivery of the wireless technologies that it uses. Federal Register], and that does not services specified in paragraph (a) of meet the requirements for hearing aid However, there may be some newer this section and that does not fall within wireless technologies used in this phone compatibility under paragraph (b)(3)(i) the de minimis exception set forth in of this section, is hearing aid-compatible that have not been tested yet for use paragraph (e) of this section. However, with hearing aids. It is important to try for radio frequency interference or prior to [24 months after date of the different features of this phone inductive coupling only with respect to publication of the Final Rule in the thoroughly and in different locations, those frequency bands and air interfaces Federal Register] for manufacturers and using your hearing aid or cochlear for which technical standards are stated Tier I carriers and [27 months after date implant, to determine if you hear any in ANSI C63.19–2007 (June 8, 2007) if of publication of the Final Rule in the interfering noise. Consult your service it meets the applicable technical Federal Register] for service providers provider or the manufacturer of this standard(s) set forth in paragraphs (b)(1) other than Tier I carriers, the phone for information on hearing aid and (b)(2) of this section for all such requirements of this section do not compatibility. If you have questions frequency bands and air interfaces over apply to handset operations over about return or exchange policies, which it operates, and the handset has frequency bands and air interfaces for consult your service provider or phone been certified as compliant with the test which technical standards are not stated retailer. requirements for the applicable standard in ANSI C63.19–2007 (June 8, 2007). (ii) However, service providers are not pursuant to § 2.1033(d) of this chapter. * * * * * required to include this language in the * * * * * packaging material for handsets that (d) Phase-in of requirements relating (5) The following standards are incorporate a Wi-Fi air interface and to inductive coupling capability. The incorporated by reference in this that were obtained by the service following applies to each manufacturer section: Accredited Standards provider before March 8, 2011, provided and service provider that offers wireless Committee C63TM—Electromagnetic that the service provider otherwise handsets used in the delivery of the Compatibility, ‘‘American National discloses by clear and effective means services specified in paragraph (a) of Standard Methods of Measurement of that the handset has not been rated for this section and that does not fall within Compatibility Between Wireless hearing aid compatibility with respect the de minimis exception set forth in Communication Devices and Hearing to Wi-Fi operation. Aids,’’ ANSI C63.19–2007 (June 8, paragraph (e) of this section. However, (iii) Each manufacturer and service 2007), Institute of Electrical and prior to [24 months after date of provider shall ensure that, wherever it Electronics Engineers, Inc., publisher; publication of the Final Rule in the provides hearing aid compatibility and Accredited Standards Committee Federal Register] for manufacturers and ratings for a handset that is considered C63TM—Electromagnetic Compatibility, Tier I carriers and [27 month after date hearing aid-compatible for some of its ‘‘American National Standard Methods of publication of the Final Rules in the operations under paragraph (b)(3)(ii) of of Measurement of Compatibility Federal Register] for service providers this section and that has been tested and Between Wireless Communication other than Tier I carriers, the found not to meet hearing aid Devices and Hearing Aids,’’ ANSI requirements of this section do not compatibility requirements under ANSI C63.19–2011 (May 27, 2011), Institute of apply to handset operations over C63.19–2011 (May 27, 2011) for Electrical and Electronics Engineers, frequency bands and air interfaces for operations over one or more air Inc., publisher. These incorporations by which technical standards are not stated interfaces or frequency bands for which reference were approved by the Director in ANSI C63.19–2007 (June 8, 2007). technical standards are not stated in of the Federal Register in accordance * * * * * ANSI C63.19–2007 (June 8, 2007), it with 5 U.S.C. 552(a) and 1 CFR part 51. (f) * * * discloses to consumers, by clear and

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77757

effective means (e.g., inclusion of call- intended to promote the goals and of the collection-of-information out cards or other media, revisions to objectives of the Magnuson-Stevens requirements contained in this proposed packaging materials, supplying of Fishery Conservation and Management rule may be submitted to NMFS at the information on Web sites), that the Act, the FMP, and other applicable above address, emailed to handset does not meet the relevant laws. [email protected], or rating or ratings with respect to such DATES: Written comments must be faxed to (202) 395–7285. operation(s). received no later than 5 p.m. Alaska FOR FURTHER INFORMATION CONTACT: * * * * * local time (A.l.t.) January 30, 2012. Mary Grady, (907) 586–7228. [FR Doc. 2011–31404 Filed 12–13–11; 8:45 am] ADDRESSES: Send comments to Glenn SUPPLEMENTARY INFORMATION: NMFS BILLING CODE 6712–01–P Merrill, Assistant Regional manages the groundfish fisheries in the Administrator, Sustainable Fisheries U.S. exclusive economic zone (EEZ) of Division, Alaska Region, NMFS, Attn: the GOA under the FMP. The North DEPARTMENT OF COMMERCE Ellen Sebastian. You may submit Pacific Fishery Management Council comments, identified by FDMS Docket (Council) prepared, and NMFS National Oceanic and Atmospheric Number NOAA–NMFS–2011–0156, by approved, the FMP under the authority Administration any one of the following methods: of the Magnuson-Stevens Fishery • Electronic Submissions: Submit all Conservation and Management Act 50 CFR Part 679 electronic public comments via the (MSA), 16 U.S.C. 1801 et seq. [Docket No. 110627357–1409–01] Federal eRulemaking Portal at http:// Regulations governing U.S. fisheries and www.regulations.gov. To submit implementing the FMP appear at 50 RIN 0648–BB24 comments via the e-Rulemaking Portal, CFR parts 600 and 679. Fisheries of the Exclusive Economic first click the ‘‘submit a comment’’ icon, The Council has submitted Zone Off Alaska; Chinook Salmon then enter NOAA–NMFS–2011–0156 in Amendment 93 for review by the Bycatch Management in the Gulf of the keyword search. Locate the Secretary of Commerce, and a notice of Alaska Pollock Fishery; Amendment 93 document you wish to comment on availability of the FMP amendment was from the resulting list and click on the published in the Federal Register (76 AGENCY: National Marine Fisheries ‘‘Submit a Comment’’ icon on the right FR 72384) on November 23, 2011, with Service (NMFS), National Oceanic and of that line. written comments on the FMP Atmospheric Administration (NOAA), • Mail: Submit written comments to amendment invited through January 23, Commerce. P.O. Box 21668, Juneau, AK 99802. 2012. Comments may address the FMP ACTION: Proposed rule; request for • Fax: (907) 586–7557. amendment, the proposed rule, or both, comments. • Hand delivery to the Federal but must be received by NMFS, not just Building: 709 West 9th Street, Room postmarked or otherwise transmitted, by SUMMARY: NMFS proposes regulations to 420A, Juneau, AK. 5 p.m. Alaska local time (A.l.t.) on implement Amendment 93 to the Comments must be submitted by one January 23, 2012, to be considered in Fishery Management Plan for of the above methods to ensure that the the approval/disapproval decision on Groundfish of the Gulf of Alaska (FMP). comments are received, documented, the FMP amendment. All comments The proposed regulations would apply and considered by NMFS. Comments received by that time, whether exclusively to the directed pollock trawl sent by any other method, to any other specifically directed to the amendment fisheries in the Central and Western address or individual, or received after or the proposed rule, will be considered Reporting Areas of the Gulf of Alaska the end of the comment period, may not in the decision to approve, partially (GOA) (Central and Western GOA). If be considered. approve, or disapprove the proposed approved, Amendment 93 would All comments received are a part of amendment. Comments received after establish separate prohibited species the public record and will generally be the comment period for the amendment catch (PSC) limits in the Central and posted without change. All Personal will not be considered in that decision. Western GOA for Chinook salmon Identifying Information (for example, The Application of This Action to the (Oncorhynchus tshawytscha), which name, address) voluntarily submitted by GOA Pollock Fishery and Current would cause NMFS to close the directed the commenter may be publicly Management pollock fishery in the Central or accessible. Do not submit Confidential Western regulatory areas of the Gulf of Business Information or otherwise This proposed rule would apply to Alaska, if the applicable limit is sensitive or protected information. owners and operators of catcher vessels, reached. This action also would require NMFS will accept anonymous catcher/processors, and inshore retention of salmon by all vessels in the comments (enter N/A in the required processors participating in the pollock Central and Western GOA pollock fields, if you wish to remain (Theragra chalcogramma) trawl fisheries until the catch is delivered to anonymous). You may submit fisheries in the Central and Western a processing facility where an observer attachments to electronic comments in Reporting Areas of the GOA. The is provided the opportunity to count the Microsoft Word, Excel, WordPerfect, or Central and Western Reporting Areas, number of salmon and to collect Adobe PDF file formats only. defined at § 679.2 and shown in Figure scientific data or biological samples Electronic copies of the 3 to 50 CFR part 679, include the from the salmon. Amendment 93 would Environmental Assessment/Regulatory Central and Western Regulatory Areas increase observer coverage on vessels Impact Review/Initial Regulatory (Statistical Areas 610, 620, and 630), less than 60 feet (18.3 m) length overall Flexibility Analysis (EA/RIR/IRFA) and the adjacent State of Alaska (State) that participate in the directed pollock prepared for this action may be obtained waters. fishery in the Central or Western from http://www.regulations.gov or from The Council and NMFS annually regulatory areas of the GOA by January the Alaska Region Web site at http:// establish biological thresholds and 2013, unless the restructured North alaskafisheries.noaa.gov. annual total allowable catch limits Pacific Groundfish Observer Program is Written comments regarding the (TACs) for groundfish species to in place by this time. Amendment 93 is burden-hour estimates or other aspects sustainably manage the groundfish

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77758 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

fisheries in the GOA. To achieve these fisheries. This proposed rule would specific management measures to objectives, NMFS requires vessel deduct salmon taken in the EEZ and the address Chinook salmon PSC in the operators participating in groundfish State parallel pollock fishery against the GOA groundfish fisheries. This action fisheries in the GOA to comply with Central GOA and Western GOA Chinook would establish PSC limits for Chinook various restrictions, such as fishery salmon PSC limits. salmon and PSC management measures closures, to maintain catch within Under this proposed rule NMFS for the Central and Western GOA specified TACs and associated sector would not deduct salmon taken during pollock fisheries. and seasonal allocations and a pollock State-managed guideline Chinook salmon is a culturally and apportionments, and PSC limits for harvest level (GHL) fishery in the economically valuable species that is species that are generally required to be Central or Western GOA against the fully allocated and for which State and discarded. Central GOA and Western GOA Chinook Federal managers seek to conservatively NMFS manages GOA pollock as a salmon PSC limits. For these fisheries, manage harvests. The FMP categorizes single stock independently of pollock in the State of Alaska establishes a GHL Chinook salmon as prohibited species, the Bering Sea and Aleutian Islands that the Council and NMFS deduct one of the most regulated and closely management area. In 2011, the Central before NMFS sets the Federal ABC managed categories of bycatch in Alaska and Western GOA pollock TAC is during the harvest specifications fisheries. Chinook salmon, all other 84,631 metric tons (mt). Additional process. The State manages the GHL, species of salmon (a category called information about the pollock fishery is which is available for harvest ‘‘non-Chinook salmon’’), steelhead in Section 3.5 of the EA (see exclusively within State waters. The trout, Pacific halibut, king crab, Tanner ADDRESSES), and in the final 2011 and State deducts the GHL groundfish crab, and Pacific herring are classified 2012 harvest specifications for the GOA caught in a GHL fishery from the State as prohibited species in the groundfish groundfish fisheries (76 FR 11111, GHL. Currently, the only pollock GHL fisheries off Alaska (§ 679.2). Fishermen March 1, 2011). Pollock is harvested fishery in those areas is the Prince must avoid PSC when possible and with fishing vessels using trawl gear, William Sound pollock fishery. return PSC to the water immediately, which consists of nets towed through with a minimum of injury, after an Chinook Salmon Bycatch in the GOA the water by the vessel. observer has collected catch counts and Pollock Fishery NMFS apportions the GOA pollock any scientific data or biological samples. TAC spatially and temporally in the Chinook salmon and pollock occur in One reason for discarding prohibited GOA. Regulations at § 679.21 establish the same locations in the GOA. Chinook species is that some PSC species may four seasons in the Central and Western salmon is a prohibited species live if they are returned to the sea with GOA beginning January 20 (‘‘A’’ incidentally taken during the directed a minimum of injury and delay. season), March 10 (‘‘B’’ season), August harvest of pollock in the GOA. The However, salmon caught incidentally in 25 (‘‘C’’ season), and October 1 (‘‘D’’ directed pollock fishery in the Central trawl nets often die as a result of that season), with 25 percent of the annual and Western GOA takes the majority of capture. TAC allocated to each season. Chinook salmon PSC in the GOA In an effort to minimize waste of Allocations to the Western and Central groundfish fisheries. Additional details salmon incidentally caught and killed, GOA are based on the seasonal pollock on Chinook salmon PSC among GOA NMFS has established a prohibited biomass distribution as estimated by groundfish fisheries are available in the species donation (PSD) program under NMFS groundfish surveys. In addition, (EA/RIR/IRFA) prepared for this action § 679.26. Participants in the program a harvest control rule requires at http://alaskafisheries.noaa.gov. may donate incidentally caught salmon suspension of directed pollock fishing The MSA defines bycatch as fish that to the PSD program. The PSD program when female spawning biomass is equal are harvested in a fishery that are not was initiated to reduce the amount of to or below 20 percent of the reference sold or kept for personal use. Because of edible protein discarded under PSC unfished level (§ 679.20(d)(4)) . its value in non-groundfish fisheries, regulatory requirements (§ 679.21). The This proposed rule would apply only Chinook salmon are prohibited species PSD program allows permitted to the management of the pollock trawl in the groundfish fisheries and currently participants to retain salmon for directed fisheries in the Central and NMFS regulations require that catch distribution to economically Western Reporting Areas of the GOA must be minimized and discarded in the disadvantaged individuals through tax (Central GOA and Western GOA), which GOA groundfish fisheries (§ 679.21(b)). exempt hunger relief organizations. includes the Federal fisheries in the Therefore, Chinook salmon caught in NMFS tracks the harvest of pollock waters of the EEZ (3 nm to 200 nm), and the GOA pollock fishery are considered and incidental catch of salmon in the the waters of the State of Alaska (State) bycatch under the MSA, the FMP, and Catch Accounting System, which uses (0 to 3 nm) that are managed under a NMFS regulations at 50 CFR part 679. observer data to estimate PSC and parallel fishery. These fisheries in State The Council and NMFS are concerned groundfish harvest amounts for waters, referred to as the parallel about bycatch of any species, including participants in the GOA pollock fishery. fisheries, are opened and closed by the discard or other mortality caused by Vessels participating in the Central GOA State of Alaska and are prosecuted fishing. National Standard 9 of the MSA pollock fishery averaged 36,051 metric under rules similar to those which requires the Council to recommend, and tons (mt) of pollock catch per year from apply in the Federal fisheries, with NMFS to implement, conservation and 2003 to 2010. During these years, the catch accrued against the Federal TAC. management measures, that to the pollock catch in the Central GOA was The fisheries that would be affected by extent practicable, minimize bycatch greatest in 2005, when 46,802 mt were this action include the GOA State and bycatch mortality. caught and smallest in 2009 when parallel fisheries for pollock that take In the GOA groundfish fisheries, PSC 22,700 mt were taken. From 2003 to place in State waters around Kodiak limits have been set for halibut, which 2010, vessels participating in the Island, in the Chignik Area, and along close specific groundfish target fisheries Central GOA pollock fishery took as few the South Alaska Peninsula. Pollock after the limits are reached. Seasonal as 2,123 Chinook salmon (2009), and as harvests in parallel fisheries that occur and permanent area closures have been many as 31,647 Chinook salmon (2007). in State waters are typically opened and established to protect red king crab and Over those years the fleet caught an closed concurrently with Federal Tanner crab. There are currently no average of 12,607 Chinook salmon per

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77759

year. When the Council and NMFS intends for the Chinook salmon PSC salmon that are incidentally caught in compared the Chinook salmon catch to limits to allow the full prosecution of the GOA pollock fisheries. A component the pollock catch, the number of the pollock fishery in the Central and of Amendment 93 would require full Chinook salmon per mt ranged from Western GOA in most years, while retention of salmon species incidentally 0.09 Chinook salmon/mt of pollock in truncating the fishery in some years if caught in the Central or Western GOA 2009 to 0.98 Chinook salmon/mt of necessary to prevent events of relatively pollock fisheries, which is a necessary pollock in 2007. NMFS estimates that, high Chinook salmon PSC in these step to facilitate future stock of origin on average, 0.35 Chinook salmon/mt of areas, such as occurred in 2010 (44,813 analyses. The Council also noted that pollock was taken from 2003 to 2010 in Chinook salmon). The Council also the Chinook salmon resource is of value the Central GOA pollock fishery. acknowledged that the implementation to many stakeholders, including but not In the Western GOA, the pollock fleet of Chinook salmon PSC limits proposed limited to commercial, recreational, and caught between 14,010 mt (2009) and in this action may be followed by cultural user groups; and it is a resource 30,756 mt (2005) of pollock, while subsequent recommendations to address that is currently fully utilized. By averaging 20,773 mt per year of pollock Chinook salmon PSC in other GOA instituting a PSC limit that would catch from 2003 to 2010. Over that same groundfish fisheries. reduce Chinook salmon bycatch, the period of time, the fleet caught between The principal objective of Chinook Council and NMFS also are considering 441 Chinook salmon (2009) and 31,581 salmon bycatch management in the the needs of these other user groups and Chinook salmon (2010) annually. NMFS GOA pollock fishery is to minimize recommending this proposed action to estimates the fleet took an average of Chinook salmon bycatch to the extent promote their access to the Chinook 6,380 Chinook salmon per year from practicable while allowing the pollock salmon resource. 2003 to 2010. NMFS estimates that from fishery to contribute to the achievement NMFS proposes Chinook salmon PSC 2003 to 2010, the smallest ratio of of optimum yield in the groundfish limits that are based on the Council’s Chinook salmon PSC to the pollock fishery. Minimizing Chinook salmon recommended GOA-wide goal of catch was 0.03 Chinook salmon/mt of bycatch while achieving optimum yield limiting Chinook salmon bycatch to no pollock in 2009 and the largest was 1.23 is necessary to maintain a healthy more than 25,000 salmon in the Central Chinook salmon/mt of pollock in 2010. marine ecosystem, ensure long-term and Western GOA pollock fisheries. In NMFS estimates that on average, 0.31 conservation and abundance of Chinook selecting this overall limit on Chinook Chinook salmon/mt of pollock was salmon, provide maximum benefit to salmon PSC, the Council considered a taken from 2003 to 2010 in the Western fishermen and communities that depend range of alternatives to assess the GOA pollock fishery. on Chinook salmon and pollock impacts of minimizing Chinook salmon resources, and comply with the MSA bycatch to the extent practicable while Objectives of and Rationale for and other applicable federal law. preserving the potential for the full Amendment 93 and This Proposed Rule In developing Amendment 93, the harvest of the pollock TAC. The Council Although all species of Pacific salmon Council sought to ensure maximum considered the trade-offs between are taken incidentally in the groundfish consistency with the MSA’s 10 National Chinook salmon saved and the forgone fisheries within the GOA, the Council Standards. The Council designed pollock catch. The EA and RIR include focused Amendment 93 specifically on Amendment 93 to balance the a description of the alternatives and a Chinook salmon in the Central and competing demands of the National comparative analysis of the potential Western GOA. The Council decided not Standards. Specifically, the Council impacts of the alternative PSC limits to include the Eastern Regulatory Area recognized the need to balance and be (see ADDRESSES). of the GOA in Amendment 93 because consistent with both National Standard The Council noted that the pollock it includes a large area closed to 9 and National Standard 1. National fishery accounts for approximately 75 trawling, and Chinook salmon PSC in Standard 9 requires that conservation percent of Chinook salmon PSC in the the Eastern Regulatory Area of the GOA and management measures shall, to the GOA groundfish fisheries, based on accounts for less than 2 percent of total extent practicable, minimize bycatch. Catch Accounting System data regarding GOA Chinook salmon PSC. National Standard 1 requires that the average Chinook salmon PSC levels In June 2011, the Council conservation and management measures from 2001 to 2010. The Council recommended Amendment 93, which shall prevent overfishing while recommended, and the rule proposes, to would establish separate Chinook achieving, on a continuing basis, the apportion the selected GOA-wide salmon PSC limits for the Central GOA optimum yield from each fishery for the Chinook salmon PSC limit between the and Western GOA pollock fisheries. Of U.S. fishing industry. The ability to Central and Western GOA on the basis all salmon species caught, Chinook harvest the entire pollock TAC in any of annual Chinook salmon PSC levels salmon is the highest catch in the GOA given year is not determinative of and pollock harvests in each area during groundfish fisheries in recent years. The whether the GOA groundfish fishery 2001 to 2010 excluding 2007 and 2010. Central and Western GOA pollock achieves optimum yield. Providing the The Council recommended excluding fisheries intercept the majority of opportunity for the fleet to harvest its bycatch amounts from 2007 and 2010 Chinook salmon caught as bycatch in TAC is one aspect of achieving optimum from consideration because of specific the GOA groundfish fisheries. The yield in the long term. conditions in the Central and Western implementation of Chinook salmon PSC The Council also considered the GOA during those years. In the Central limits would likely prevent unusually importance of equity among user groups GOA, 2007 was a year of particularly high levels of bycatch of this prohibited in recommending Amendment 93. In high Chinook salmon PSC, as was 2010 species, such as occurred in 2010, from addition to providing an equitable in the Western GOA. The Council occurring in the fishery in the future. apportionment of the total GOA-wide considered the conditions that The Council acknowledged that the PSC limit between the Central and contributed to these high levels of PSC selection of a Chinook salmon PSC limit Western GOA pollock fisheries, the during these years and did not include for the GOA pollock fishery requires a Council also considered the needs of them for assigning Chinook salmon PSC. balance both of obligations under the Chinook salmon users. Information is The Council considered and rejected MSA National Standards, and the needs currently unavailable for NMFS to those years because the conditions that of different user groups. The Council assess the stock of origin of the Chinook contributed to the high levels of bycatch

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77760 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

were not representative for specific excluding 2007 and 2010, with an fleet consists of vessels less than 60 feet reasons detailed in section 2.1.2 of the adjustment intended to prevent either (18.3 m) LOA. Observer coverage on this Analysis. Inclusion of these years, area from bearing a disproportionate portion of the fleet would improve the which represent the highest levels of share of the economic impact of the accuracy of Chinook salmon PSC Chinook salmon PSC in each area, GOA-wide PSC limit. The analysis estimates. Currently, § 679.50(c)(1)(v) would increase the apportionment of indicated that a lower Chinook salmon requires that a catcher/processor or PSC in that area, effectively rewarding PSC limit in the Central GOA, strictly catcher vessel equal to or greater than 60 the fleet in that area for its high levels based on historic catch in the two areas ft (18.3 m) LOA, but less than 125 ft of Chinook salmon PSC. The Council with no adjustment, was likely to be (38.1 m) LOA, that participates for more did not feel it was appropriate to reward more constraining to the pollock fishery than 3 fishing days in a directed fishery the fleets for unacceptably high levels of in the Central GOA than the selected for groundfish in a calendar quarter Chinook salmon PSC. Chinook salmon PSC limit in the must carry an observer during at least 30 Under this proposed rule, the Central Western GOA would be to the pollock percent of its fishing days in that and Western GOA pollock fisheries fishery in the Western GOA. calendar quarter and at all times during should be able to harvest the full The Council recommended that at least one fishing trip in that calendar pollock TAC in each area based on the NMFS implement the PSC limits in quarter for each of the groundfish lower, long-term (17 year) average mid-2012. If the Secretary approves fishery categories defined under Chinook salmon bycatch rate, although Amendment 93 and the final rule, the paragraph (c)(2) of § 679.50 in which the they would be unable to harvest the full reduced PSC limits could apply for the vessel participates. The proposed rule TAC based on the recent (8 year), higher C and D seasons only (August 25 would require trawl vessels less than 60 average Chinook salmon bycatch rate through November 1). The Council feet (18.3 m) LOA that are directed (see EA/RIR/IRFA in ADDRESSES). The recommended the PSC limits for the fishing for pollock in the Central or proposed rule would maintain a 2012 C and D seasons to be 8,929 Western GOA to also meet these constraint on the fleet to reduce Chinook salmon in the Central GOA and observer coverage requirements. bycatch, while still allowing for 5,598 Chinook salmon in the Western In 2010, the Council approved a optimum yield from the GOA GOA. These PSC limits were calculated restructured observer program, and groundfish fishery. The proposed by multiplying the annual PSC limit in NMFS is currently drafting proposed Chinook salmon PSC limits would each area by the average percentage of regulations that will be sent out for require the fleet to work together to annual Chinook salmon PSC taken in public notice and comment. The come up with mechanisms to reduce the C and D seasons within each area, Council’s intent is that if the Chinook salmon bycatch in order to over the same time series of 2001 to restructured observer program were prevent an early closure to the pollock 2010 but excluding 2007 and 2010, and approved by the Secretary and fishery. The Council acknowledged, and adjusting upward by 25 percent. The implemented by January 2013, the NMFS concurs, that bycatch rates are Council adjusted the amount upward by increased observer coverage that would highly variable, and in years of high 25 percent the first year to provide a be required under this proposed rule Chinook salmon encounters, the buffer and reduce the constraint of mid- would not be extended to vessels less proposed PSC limit would prevent year implementation limits on the than 60 feet (18.3 m) LOA for the C and amounts of bycatch similar to or more pollock fisheries. D seasons of 2012. The Council weighed than amounts that occurred in past high The Council recommended that the the benefit of more accurate bycatch bycatch years. Based upon historical GOA-wide Chinook salmon PSC limit be estimates that would accrue from fishing activity and salmon bycatch apportioned to the Central and Western expanding observer coverage for this rates, higher Chinook salmon PSC limits GOA to prevent incidental catch of portion of the fleet against the potential would not meet the intent of the Chinook salmon in one area from for confusion as vessel operators would Council to minimize bycatch to the triggering the closure of the pollock be required to conform to the extent practicable, as expressed in the fishery throughout the GOA. Under the requirements of two new and different problem statement. proposed rule, NMFS would manage all observer programs within a six month Under the proposed rule, the Chinook provisions of the PSC limits on a period. The Council determined, salmon PSC limit would be divided into reporting area basis, except for NMFS’s however, that 18 months (mid-2012 annual PSC limits of 18,316 (73 percent authority to close fisheries when the through 2014) without observer of the GOA-wide PSC limit) Chinook limits are reached, which would only coverage in the less than 60 feet (18.3 m) salmon for the Central GOA, and 6,684 extend to the Central and Western LOA fleet was not acceptable if the Chinook salmon (27 percent of the Regulatory Areas of the GOA. If the PSC observer program restructuring were GOA-wide PSC limit) for the Western limit in either the Central GOA or delayed or otherwise not approved by GOA. As described further in the Notice Western GOA were reached, NMFS the Secretary. If the implementation of of Availability for Amendment 93, the would close the directed pollock fishery the restructured observer program were Council recommended the split of 73 in the applicable regulatory area. The delayed until 2014, then this proposed percent for the Central GOA and 27 State of Alaska would be responsible for action would require vessels less than percent for the Western GOA because it closing the adjacent state waters in the 60 ft (18.3 m) LOA to have 30 percent balances the economic impacts to applicable reporting area. coverage while directed fishing for fishery participants in the Central GOA In order to effectively monitor pollock in the Central GOA and Western and fishery participants in the Western Chinook salmon PSC, the Council also GOA no later than January 1, 2013. GOA. The Council based this recommended requiring observer The majority of the fleet that would be apportionment of the GOA-wide coverage on vessels less than 60 feet affected by increased coverage would be Chinook salmon PSC limit between the (18.3 m) length overall (LOA) by January vessels less than 60 feet (18.3 m) LOA Central and Western GOA on the 2013. Chinook salmon PSC estimates for in the Western GOA. Some of these pollock TAC for each area and the this portion of the fleet have a high vessels deliver their catch to tender average number of salmon caught as degree of uncertainty, as observers are vessels instead of shoreside processing bycatch in each area, set at an equal currently not required on this vessel facilities. Increased observer coverage ratio, from 2001 through 2010, class. Much of the Western GOA pollock on the less than 60 feet (18.3 m) LOA

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77761

fleet would result in more trips being continue to calculate Chinook salmon Western Reporting Areas of the GOA. observed, which may provide increased PSC numbers, and would manage PSC Paragraph (b)(2)(ii) would be revised to coverage in the Western GOA. However, limits for Chinook salmon, using the add GOA pollock fisheries described the additional coverage in the Western existing system of extrapolating catch under paragraph (h) and PSD program GOA may improve only marginally the rates from observed vessels to the clarifications to the exception for accuracy of salmon PSC estimates, since unobserved portion of the pollock fleet. immediate sorting and returning to the the PSC estimates for vessels delivering Salmon retained under this action sea of salmon PSC. This is necessary to to tenders would be based on observer may not be kept for sale or personal use, ensure participants in the PSD program at-sea sampling for Chinook salmon, and must be discarded or donated to the may retain salmon for donation which is a relatively uncommon prohibited species donation program, purposes and to facilitate observer species. The increased observer following collection of any scientific sampling and counting of all salmon. coverage on vessels less than 60 feet data or biological samples. This Paragraph (b)(3) would be revised to (18.3 m) LOA under this action would proposed rule would provide an establish that there will not be a only be effective until the restructured exception to mandatory discard rebuttable presumption that any salmon Observer Program is implemented. requirements if the Chinook salmon retained on board during a directed NMFS anticipates that, if the Secretary were delivered to a participant in the pollock fishery in the Central or approves the restructured observer PSD program. Once salmon are counted Western GOA was caught and retained program, the program could be and sampled at the processing plant, in violation of § 679.21. This is implemented by January 1, 2014. they may be donated to the PSD necessary to ensure that vessels that This proposed action would require program, or they must be discarded. A comply with the requirement to retain full retention of all salmon species in list of participants in the PSD program salmon are not presumed to violate the Central and Western GOA pollock in the GOA is available from the NMFS § 679.21. In addition, this is necessary to fisheries for both observed and Alaska Region Web site at http:// maintain the existing rebuttable unobserved vessels until the salmon are alaskafisheries.noaa.gov/ram/psd/ presumption that any Chinook salmon delivered to a shoreside processing salmon072011.pdf. retained on board during a directed plant and an observer at the plant has Proposed Regulatory Amendments pollock fishery in the GOA outside of been given the opportunity to count the the Western and Central reporting areas number of salmon and to collect Several regulatory amendments was caught and retained in violation of biological samples. The retention would be necessary to implement this section. requirement does not focus specifically Chinook salmon PSC limits in the on Chinook salmon because it can be Central and Western GOA pollock The proposed rule would add PSC difficult to differentiate among salmon fishery under Amendment 93. The management measures under species unless the fish is examined. proposed rule would (1) Set PSC limits § 679.21(h) to establish Chinook salmon Current regulations under for Chinook salmon in the Central and PSC limits for the pollock trawl fisheries § 679.21(b)(2)(ii) require vessel Western GOA Reporting Areas, (2) in the Central and Western GOA. operators to discard salmon when an increase observer coverage for all trawl Paragraph (h)(1) would specify observer is not on board. When an vessels less than 60 feet (18.3 m) LOA applicability of regulations in this observer is aboard, they are required to directed fishing for pollock in the paragraph to federally permitted vessels allow for sampling by an observer before Central and Western GOA, and (3) directed fishing for pollock in the discarding prohibited species. This revise retention requirements for all Central and Western GOA reporting proposed rule would revise the species of salmon in the Central and areas and processors taking deliveries requirements at § 679.21(b), to require Western GOA pollock trawl fisheries. from such vessels. Paragraph (h)(2) the operators of all vessels engaged in This proposed rule also would make would establish GOA Chinook salmon directed fishing for pollock in the minor changes to the regulations for the PSC limits. Paragraph (h)(2)(i) would Central and Western GOA, and all PSD program to be consistent with specify an annual PSC limit of 18,316 processors taking deliveries from these Amendment 93 and to provide updates Chinook salmon for vessels engaged in vessels, to retain all salmon until an to the reporting requirement and directed fishing for pollock in the observer at a processing plant has been decision criteria for PSD program Central reporting area of the GOA. given the opportunity to count the permitting. Paragraph (h)(2)(ii) would specify an number of salmon and to collect annual limit of 6,684 Chinook salmon biological samples, before discarding. Prohibitions for vessels engaged in directed fishing The proposed rule would require the The proposed rule would add for pollock in the Central reporting area operators of all vessels to retain all prohibitions under § 679.7(b)(8) to of the GOA. Paragraph (h)(3) would set salmon caught in the pollock fishery in regulate discard in the Central and Chinook salmon PSC limits and the Central and Western Gulf until those Western GOA directed pollock fisheries. allocations for the Central and Western salmon are delivered to a processing Paragraph (b)(8) would be added to GOA pollock fisheries C and D seasons plant, where an observer would be expressly prohibit any action that does in 2012. The 2012 annual PSC limits provided the opportunities to count and not comply with the regulations would be effective until January 1, 2013. sample the salmon. Under the proposed described below for § 679.21(h). This is If the Chinook salmon PSC limits come rule, all salmon must then be discarded necessary to expressly inform fishery into effect for only the C and D seasons or donated to the PSD program. The full participants that certain activities are in 2012, paragraphs (h)(3)(i) and (ii) retention requirement would not modify prohibited. would specify a PSC limit of 8,929 the observer duties or the method by Chinook salmon for vessels engaged in which NMFS calculates fleet-wide PSC Management directed fishing for pollock in the Chinook salmon PSC estimates. The proposed rule would revise PSC Central reporting area of the GOA and Observer sampling protocols would not management measures under § 679.21 to a PSC limit of 5,598 Chinook salmon for be changed, other than the potential that establish Chinook salmon PSC limits vessels engaged in directed fishing for there may be an increase in biological and management measures for directed pollock in the Western reporting area of sampling at the plants. NMFS would pollock trawl fishing in the Central and the GOA for the C and D seasons in

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77762 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

2012. These revisions would be necessary to facilitate the counting and catcher vessel less than 60 feet (18.3 m) necessary to establish the annual biological sampling of donated salmon LOA that participates for more than Chinook salmon PSC limits and the and to ensure NMFS applies the three fishing days in a directed pollock 2012 C and D season limits Chinook salmon donated to the PSD fishery in the Central or Western recommended by the Council and program to the PSC limits. reporting areas of the GOA in a calendar approved by the Secretary. In addition, the proposed rule would quarter to carry an observer during at Paragraph (h)(4) of § 679.21 would modify the PSD program regulations to least 30 percent of its fishing days in require temporary salmon retention in implement the intent of the program to that calendar quarter and at all times the Central and Western GOA directed allow participation by all types of near during at least one fishing trip in that pollock fisheries. The operator of a shore, stationary processors for halibut calendar quarter in the directed pollock vessel and the manager of a shoreside donations. It also would revise fishery in the applicable area(s). Vessels processor or stationary floating paragraph (a)(2) of § 679.26 to include less than 60 feet (18.3 m) LOA therefore processor would be prohibited from stationary floating processors as eligible would be required to comply with the discarding any salmon or transferring or to receive and process donated halibut. 30 percent observer coverage processing any salmon under the PSD Stationary floating processors are requirements while directed fishing for program at § 679.26, if the salmon were generally located near shore and remain pollock in the Central or Western GOA. taken incidental to a Central or Western in one location and are therefore similar This would only be effective if the GOA directed pollock fishery, until an to a shoreside processor for purposes of Secretary does not approve and observer at the processing facility is the halibut donation program. This implement the restructured observer provided the opportunity to estimate the proposed revision is necessary to meet program recommended by the Council number of salmon and to collect any the Council’s intent that halibut that by 2013, and would only remain scientific data or biological samples cannot be sorted at sea and delivered to effective until an approved restructured from the salmon. a processor located in one location in a observer program is implemented. Paragraph (h)(5) of § 679.21 would near shore area may be donated to the NMFS anticipates that, if the Secretary require that all salmon, except for PSD program. approves the restructured observer salmon under the PSD program at The proposed rule would revise program, the program would not be § 679.26, must be discarded following paragraph (b)(1)(xi) of § 679.26 to clarify implemented any later than January 1, notification by an observer that the information required for the application 2014. number of salmon has been estimated process to become an authorized PSD and the collection of scientific data or distributor. This proposed rule would Classification biological samples has been completed. remove the requirement that the vessel Pursuant to sections 304(b) and 305(d) This requirement is necessary to ensure or processor provide a fax number, as of the MSA, the NMFS Assistant observers are provided the opportunity faxes are no longer used for Administrator has determined that this to count salmon and to take biological communication between NMFS and the proposed rule is consistent with the samples and to ensure that the salmon vessels or processors for the purposes of FMP, other provisions of the MSA, and not donated is discarded, as required of this program. This revision would other applicable law, subject to further all PSC. reduce the reporting burden for the PSD considerations received during the Proposed new paragraph (h)(6) of applicant. public comment period. § 679.21 would establish Chinook Paragraph (b)(2)(iv) of § 679.26 would This proposed rule has been salmon PSC closure management. be revised to change the selection determined to be not significant for the Closures for pollock fisheries using criteria considered by the Regional purposes of Executive Order (E.O.) trawl gear would be established, if, Administrator in issuing a PSD permit. 12866. during the fishing year, the Regional The revision would change the IRFA Administrator determines that vessels consideration of the potential number of engaged in directed fishing for pollock groundfish trawl vessels and processors An Initial Regulatory Flexibility in the Central or Western GOA will in the fishery to the potential number of Analysis (IRFA) was prepared for this catch the Chinook salmon PSC limits vessels and processors participating in action, as required by section 603 of the specified for that area. NMFS would the PSD program. The number of vessels Regulatory Flexibility Act. The IRFA for publish notification in the Federal and processors in the groundfish fishery this proposed action describes the Register closing the applicable is not an important consideration to reasons why this action is being regulatory area to directed fishing for determine who should participate in the proposed; the objectives and legal basis pollock. This is necessary to allow program. The number of vessels and for the proposed rule; the number of NMFS to manage area closures for the processors in the PSD program and the small entities to which the proposed pollock fisheries in the Central and capacity of that program for a number of rule would apply; any projected Western Regulatory Areas of the GOA participants is a more meaningful reporting, recordkeeping, or other based on Chinook salmon PSC reaching consideration for determining compliance requirements of the the Chinook salmon PSC limits for the participation in the program. This proposed rule; any overlapping, Central and Western Reporting Areas. revision would focus the considerations duplicative, or conflicting Federal rules; The State of Alaska would manage the for issuing a permit on pertinent vessel impacts of the action on small entities; closure of the parallel pollock fishery and processor information. and any significant alternatives to the based on the federal closure. proposed rule that would accomplish Groundfish Observer Program the stated objectives of the MSA, and Prohibited Species Donation Program This proposed rule would revise the any other applicable statutes, and would This proposed rule would revise groundfish observer program under minimize any significant adverse § 679.26(c)(1) reporting and § 679.50 to establish observer coverage impacts of the proposed rule on small recordkeeping requirements for the PSD for pollock vessels under 60 feet (18.3 entities. Descriptions of the proposed program to add the Central and Western m) LOA in the Central and Western action, its purpose, and the legal basis GOA pollock fishery to ensure observer GOA. Paragraph (c)(1)(x) would be are contained earlier in this preamble sampling of donated fish. This is added to require a catcher/processor or and are not repeated here. A summary

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77763

of the IRFA follows. A copy of the IRFA and had a smaller impact on small a constraint on the fleet as an incentive is available from NMFS (see entities. to reduce bycatch while still allowing ADDRESSES). No action would have left the for optimum yield from the groundfish The entities directly regulated by this Chinook salmon PSC unlimited, which fishery. The Council’s recommended proposed action are those Federally- would have failed to meet the objective apportionment (73 percent of the limit permitted or licensed entities that of the action. The 30,000 GOA-wide for the Central GOA and 27 percent of participate in harvesting groundfish Chinook salmon PSC limit would the limit for the Western GOA) divides from the Federal or parallel pollock likewise have failed to significantly the total GOA-wide Chinook salmon target fisheries of the Central or Western control Chinook salmon PSC, and PSC limit between the Central and GOA. Fishing vessels are considered therefore failed to balance the benefits Western GOA proportional to the small entities if their total annual gross of the action to the targeted Chinook historical pollock TAC for each receipts, from all their activities salmon fisheries with the needs of reporting area and the average number combined, are less than $4.0 million. pollock trawlers in the way sought by of salmon caught as bycatch in each The analysis identified 63 vessels in the Council. A Chinook salmon PSC reporting area, set at an equal ratio, with 2010 that would be affected by this limit of 15,000 would have imposed a an adjustment intended to prevent action, 37 catcher vessels of which greater burden on small entities by either area from bearing a fished for pollock in the Central or resulting in constraints on pollock disproportionate share of the economic Western GOA pollock fisheries and are fishing beyond the preferred alternative. impact of the PSC limit. members of a cooperative. These vessels The Chinook salmon PSC limit of The proposed observer coverage is are members of an American Fisheries 22,500 would be constraining in more necessary to monitor the Chinook Act cooperative for Bering Sea pollock, years for the Central GOA in salmon PSC in a way that meets the a rockfish program cooperative in the comparison to the recommended 25,000 objectives of the action, and is in any GOA, a Bering Sea crab cooperative, or PSC limit. The option for a 25-percent event, at most a temporary measure. members of two or more of these buffer to the PSC limits did not meet the This would only be effective if the cooperatives. The remaining 26 vessels intended objectives of reducing Chinook Secretary does not approve and are not part of a cooperative and are salmon PSC to the extent practicable. implement the restructured observer considered to be small entities. Under the apportionment options, the program recommended by the Council An IRFA requires a description of any Central GOA’s proportion of the GOA- by 2013, and would only remain significant alternatives to the proposed wide PSC limit ranges from 61 percent effective until an approved restructured action(s) that accomplish the stated to 77 percent, or 9,122 Chinook salmon observer program is implemented. objectives, are consistent with to 23,224 Chinook salmon, depending NMFS anticipates that, if the Secretary applicable statutes, and that would on the overall PSC limit. For the approves the restructured observer minimize any significant economic Western GOA, the range is from 23 program, the program would not be impact of the proposed rule on small percent to 39 percent, which results in implemented any later than January 1, entities. The preferred alternative a range of 3,388 Chinook salmon to 2014. chosen by the Council and proposed by 11,757 Chinook salmon. The Council No duplication, overlap, or conflict NMFS has several elements: (1) A GOA- determined lower percentages were between this proposed action and wide Chinook salmon PSC limit of unnecessarily constraining to the existing Federal rules has been 25,000 fish with closure of directed pollock fisheries while larger identified. fishing for pollock if the PSC limit is percentages did not provide the Tribal Consultation reached; (2) allocation of this limit incentive to minimize PSC to the extent between the Central and Western GOA practicable. The Council considered an Executive Order (E.O.) 13175 of Reporting Areas considering the alternative for the administration of November 6, 2000 (25 U.S.C. 450 note), historical pollock TACs in the two mandatory cooperatives, including the Executive Memorandum of April 29, areas, and historical Chinook salmon approval of annual cooperative 1994 (25 U.S.C. 450 note), and the PSC in the two areas; (3) retention of all contracts and any penalties for violation American Indian and Alaska Native salmon; and (4) a requirement that of the cooperative agreement. This Policy of the U.S. Department of pollock trawlers less than 60 feet (18.3 alternative would have needed to be Commerce (March 30, 1995) outline the m) LOA carry 30 percent observer implemented in a manner that responsibilities of NMFS in matters coverage after January 1, 2013. This maintains NMFS’ management authority affecting tribal interests. Section 161 of observer requirement is likely to be over the fishery. The Council did not Public Law 108–199 (188 Stat. 452), as moot, or at most temporary, if the recommend mandatory cooperatives amended by section 518 of Public Law Secretary approves and NMFS because the Council was uncertain 109–447 (118 Stat. 3267), extends the implements a requirement for this whether NMFS could maintain ultimate consultation requirements of E.O. 13175 coverage by January 2013 under the management authority over the fishery to Alaska Native corporations. restructured observer program. under a system where mandatory NMFS is obligated to consult and During consideration of this action, cooperatives must develop agreements coordinate with federally recognized the Council evaluated a number of that would effectively limit cooperative tribal governments and Alaska Native alternatives to the preferred alternative, members’ harvest of Chinook salmon Claims Settlement Act regional and including: (1) No action, (2) GOA-wide PSC, and establish penalties for village corporations on a government-to- PSC limits of 15,000, 22,500, and 30,000 violations of the cooperative agreement. government basis pursuant to E.O. Chinook salmon, (3) alternative ways of The Council developed Chinook 13175 which establishes several allocating the PSC limits between the salmon PSC limits based on the ability requirements for NMFS, including: Central and Western Reporting Areas, of the Central and Western GOA pollock (1) To provide regular and meaningful (4) a 25-percent buffer for the PSC limit fisheries to harvest the full pollock TAC consultation and collaboration with in one out of three consecutive years, in each reporting area in most years Indian tribal governments and Alaska and (5) mandatory bycatch reduction while being constrained in years of Native corporations in the development cooperatives. None of these alternatives relatively high Chinook salmon bycatch. of Federal regulatory practices that both met the objectives of the action, In this way, the Council would maintain significantly or uniquely affect their

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77764 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules

communities; (2) to reduce the for the proper performance of the (ii) After allowing for sampling by an imposition of unfunded mandates on functions of the agency, including observer, if an observer is aboard, sort Indian tribal governments; and (3) to whether the information shall have its catch immediately after retrieval of streamline the applications process for practical utility; the accuracy of the the gear and, except for salmon and increase the availability of waivers burden estimate; ways to enhance the prohibited species catch in the BS and to Indian tribal governments. This quality, utility, and clarity of the GOA pollock fisheries under paragraph Executive Order requires Federal information to be collected; and ways to (c) or (h) of this section, or any agencies to have an effective process to minimize the burden of the collection of prohibited species catch as provided (in involve and consult with information, including through the use permits issued) under § 679.26, return representatives of Indian tribal of automated collection techniques or all prohibited species, or parts thereof, governments in developing regulatory other forms of information technology. to the sea immediately, with a minimum policies and prohibits regulations that Send comments on these or any other of injury, regardless of its condition. impose substantial, direct compliance aspects of the collection of information (3) Rebuttable presumption. Except as costs on Indian tribal communities. to NMFS at the ADDRESSES above, and provided under paragraph (c) and (h) of Due to the expedited time frame of by email to this section and § 679.26, there will be this action to implement Chinook [email protected], or fax a rebuttable presumption that any salmon PSC management measures in to (202) 395–7285. prohibited species retained on board a the GOA, NMFS will consult on this Notwithstanding any other provision fishing vessel regulated under this part action by mailing letters to all Alaska of the law, no person is required to was caught and retained in violation of tribal governments, Alaska Native respond to, nor shall any person be this section. corporations, and related organizations subject to a penalty for failure to comply * * * * * (‘‘Alaska Native representatives’’) by with, a collection of information subject (h) GOA Chinook Salmon PSC notifying them of the opportunity to to the requirements of the PRA, unless Management—(1) Applicability. comment when the Notice of that collection of information displays a Regulations in this paragraph apply to Availability for Amendment 93 and this currently valid OMB control number. vessels directed fishing for pollock with proposed rule are published in the trawl gear in the Central and Western Federal Register. List of Subjects in 50 CFR Part 679 Section 5(b)(2)(B) of E.O. 13175 reporting areas of the GOA and Alaska, Fisheries, Reporting and processors taking deliveries from these requires NMFS to prepare a tribal recordkeeping requirements. summary impact statement as part of the vessels. final rule. This statement must contain Dated: December 7, 2011. (2) GOA Chinook salmon prohibited (1) a description of the extent of the Eric C. Schwaab, species catch (PSC) limits (effective agency’s prior consultation with tribal Assistant Administrator for Fisheries, January 1, 2013). officials, (2) a summary of the nature of National Marine Fisheries Service. (i) NMFS establishes an annual PSC limit of 18,316 Chinook salmon for their concerns, (3) the agency’s position For the reasons set out in the vessels engaged in directed fishing for supporting the need to issue the preamble, 50 CFR part 679 is proposed pollock in the Central reporting area of regulation, and (4) a statement of the to be amended as follows: extent to which the concerns of tribal the GOA. officials have been met. If the Secretary PART 679—FISHERIES OF THE (ii) NMFS establishes an annual PSC of Commerce approves Amendment 93, EXCLUSIVE ECONOMIC ZONE OFF limit of 6,684 Chinook salmon for a tribal impact summary statement that ALASKA vessels engaged in directed fishing for summarizes and responds to issues pollock in the Western reporting area of raised on the proposed action—and 1. The authority citation for part 679 the GOA. describes the extent to which the continues to read as follows: (3) Chinook salmon PSC limit for the concerns of tribal officials have been Authority: 16 U.S.C. 773 et seq., 1801 et GOA pollock fishery C and D seasons in met—will be included in the final rule seq., 3631 et seq.; and Pub. L. 108–447. 2012. (Effective from August 25, 2012 until November 1, 2012). NMFS for Amendment 93. 2. In § 679.7, add paragraph (b)(8) to establishes the GOA Chinook salmon read as follows: Collection-of-Information Requirements PSC limits for the Central and Western This proposed rule includes a § 679.7 Prohibitions. GOA pollock fisheries during the 2012 collection-of-information requirement * * * * * C and D seasons as follows: subject to review and approval by the (b) * * * (i) A PSC limit of 8,929 Chinook Office of Management and Budget (8) Prohibitions specific to salmon salmon for vessels engaged in directed (OMB) under the Paperwork Reduction discard in the Central and Western fishing for pollock in the Central Act (PRA). This requirement has been Reporting Areas of the GOA directed reporting area of the GOA; and submitted to OMB for approval, OMB fisheries for pollock. Fail to comply (ii) A PSC limit of 5,598 Chinook No. 0648–0316, PSD program. Public with any requirement of § 679.21(h). salmon for vessels engaged in directed reporting burden for Application to * * * * * fishing for pollock in the Western become a NMFS Authorized Distributor 3. In § 679.21, reporting area of the GOA. in the PSD program is estimated to A. Revise paragraphs (b)(2)(ii) and (4) Salmon retention. The operator of average 13 hours per response, (b)(3); and a vessel and the manager of a shoreside including the time for reviewing B. Add paragraph (h) to read as processor or SFP must not discard any instructions, searching existing data follows: salmon or transfer or process any sources, gathering and maintaining the salmon under the PSD program at data needed, and completing and § 679.21 Prohibited species bycatch § 679.26, if the salmon were taken reviewing the collection of information. management. incidental to a Central or Western GOA NMFS seeks public comment * * * * * directed pollock fishery, until an regarding: whether this proposed (b) * * * observer at the processing facility that collection of information is necessary (2) * * * takes delivery of the catch is provided

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Proposed Rules 77765

the opportunity to count the number of processors and stationary floating §§ 679.7(d) and (k), 679.21(c), and salmon and to collect any scientific data processors. 679.28; and or biological samples from the salmon. (b) * * * (ii) In the Central or Western GOA (5) Salmon discard. Except for salmon (1) * * * pollock fishery must comply with under the PSD program at § 679.26, all (xi) A list of all vessels and applicable regulations at §§ 679.7(b), salmon must be discarded, following processors, and food bank networks or 679.21(h) and 679.28. notification by an observer that the food bank distributors participating in * * * * * number of salmon has been estimated the PSD program. The list of vessels and and the collection of scientific data or processors must include: 5. In § 679.50, add paragraph (c)(1)(x) biological samples has been completed. to read as follows: (6) Chinook salmon PSC closures in * * * * * Pollock trawl gear fisheries. If, during (C) The vessel’s or processor’s § 679.50 Groundfish Observer Program. the fishing year, the Regional telephone number. * * * * * * * * * * Administrator determines that vessels (c) * * * engaged in directed fishing for pollock (2) * * * in the Central reporting area or Western (iv) The potential number of vessels (1) * * * reporting area of the GOA will catch the and processors participating in the PSD (x) A catcher/processor or catcher applicable Chinook salmon PSC limit program. vessel less than 60 ft (18.3 m) LOA that specified for that reporting area under * * * * * participates for more than 3 fishing days paragraph (h)(2) of this section, NMFS (c) * * * in a directed pollock fishery (as defined will publish notification in the Federal (1) A vessel or processor retaining in paragraph (c)(2)(i) of this section) in Register closing the applicable prohibited species under the PSD the Central or Western reporting areas of regulatory area to directed fishing for program must comply with all the GOA in a calendar quarter must pollock. applicable recordkeeping and reporting carry an observer during at least 30 4. In § 679.26, revise paragraphs (a)(2), requirements, including allowing the percent of its fishing days in that (b)(1)(xi) introductory text, (b)(1)(xi)(C), collection of data and biological calendar quarter in that directed pollock (b)(2)(iv), and (c)(1) to read as follows: sampling by an observer prior to fishery and at all times during at least § 679.26 Prohibited Species Donation processing any fish under the PSD one fishing trip in that calendar quarter Program. program. A vessel or processor in that directed pollock fishery. (a) * * * participating in the PSD program: * * * * * (2) Halibut delivered by catcher (i) In the BS pollock fishery must [FR Doc. 2011–31973 Filed 12–13–11; 8:45 am] vessels using trawl gear to shoreside comply with applicable regulations at BILLING CODE 3510–22–P

VerDate Mar<15>2010 17:51 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00039 Fmt 4702 Sfmt 9990 E:\FR\FM\14DEP1.SGM 14DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 77766

Notices Federal Register Vol. 76, No. 240

Wednesday, December 14, 2011

This section of the FEDERAL REGISTER a copy to Shagufta Ahmed, Office of • Interview protocols for conducting contains documents other than rules or Management and Budget, New the interviews. proposed rules that are applicable to the Executive Office Building, Room 10235, The core objective of the data public. Notices of hearings and investigations, Washington, DC 20503. committee meetings, agency decisions and • collection is to help refine specific Hand Delivery/Courier: Mitchell E. features of the content and design of the rulings, delegations of authority, filing of Hochberg or Jane Gao, Office of petitions and applications and agency forms to maximize communication statements of organization and functions are Regulations, Consumer Financial effectiveness while minimizing examples of documents appearing in this Protection Bureau, 1700 G Street NW., compliance burden. The CFPB will section. Washington, DC 20006, with a copy to evaluate one or more draft forms Shagufta Ahmed, Office of Management through iterative qualitative testing with and Budget, New Executive Office consumers, including observation of BUREAU OF CONSUMER FINANCIAL Building, Room 10235, Washington, DC consumers’ usage of the disclosures, PROTECTION 20503. their understanding of the contents, and FOR FURTHER INFORMATION CONTACT: [Docket No. CFPB–2011–0043] the choices they make. Requests for additional information The qualitative testing is focused on Submission for OMB Review; should be directed to the agency contacts listed below. the purposes of the disclosures. These Comment Request purposes include, among other things: SUPPLEMENTARY INFORMATION: OMB • AGENCY: Bureau of Consumer Financial Number: 3170–XXXX. With respect to mortgage loan Protection. Type of Review: Emergency Clearance periodic statements, improving ACTION: Notice and request for public Request. consumer understanding by better comment. Title: Qualitative Testing of Mortgage disclosing information regarding the Servicing Related Model Forms and consumer’s mortgage loan; SUMMARY: The Bureau of Consumer Disclosures. • With respect to disclosures Financial Protection (CFPB), as part of Description: The Dodd-Frank Wall concerning interest rate adjustments for its continuing effort to reduce Street Reform and Consumer Protection hybrid adjustable rate mortgages, paperwork and respondent burden, Act, Public Law No. 111–203, Title XIV informing consumers of pending invites the general public and other (the ‘‘Dodd-Frank Act’’), requires CFPB interest rate adjustments, enabling a Federal agencies to take this to publish, in final form, certain consumer to consider alternative opportunity to comment on a proposed mortgage servicing rules by January 21, options with respect to the consumer’s information collection, as required by 2013. These rules implement Sections mortgage loan, and providing the Paperwork Reduction Act of 1995, 1418 (Reset of Hybrid Adjustable Rate information to a consumer to facilitate Public Law 104–13. The CFPB is Mortgages), 1420 (Periodic Mortgage pursuing such alternative options; and soliciting comments on an information Loan Statements) and 1463 (Force- • With respect to force-placed collection request that will be submitted Placed Insurance Disclosures) of the to the Office of Management and Budget insurance disclosures, reminding a Dodd-Frank Act. The CFPB has consumer of the obligation to maintain (OMB) for review and clearance on or determined that model forms and after the date of publication of this hazard insurance on the property disclosures are required for these rules. securing a mortgage; informing the notice. A copy of the submission may be The CFPB will collect data, including consumer that the servicer does not obtained by contacting the agency through one-on-one cognitive think- have evidence of hazard insurance contacts listed below. aloud interviews, to inform its design, coverage, informing the consumer of the DATES: Written comments are development and implementation of the manner in which the consumer may encouraged and must be received on or required forms. The CFPB will use an demonstrate to a mortgage servicer that before January 13, 2012 to be assured of iterative process to improve any drafts the consumer has obtained hazard consideration. to make it easier for a consumer to use insurance coverage, and informing the COMMENTS: You may submit comments, the documents and understand the consumer that if the consumer fails to identified by Docket No. CFPB–2011– information presented in the documents obtain hazard insurance coverage, the 0043, by any of the following methods: with respect the consumer’s mortgage lender may obtain such coverage at the • Electronic: http:// loan. www.regulations.gov. Follow the The data collection will include: consumer’s expense. instructions for submitting comments. • Consent forms that will be used to The CFPB plans to test at three sites • Mail: Mitchell E. Hochberg or Jane obtain the consent of participants for the in three rounds to allow for Gao, Office of Regulations, Consumer cognitive interview process; improvement to the forms between Financial Protection Bureau, 1500 • Participant questionnaires to obtain rounds. Below is an estimate of the Pennsylvania Avenue NW., (Attn: 1801 demographic information about the aggregate burden hours for the three L Street), Washington, DC 20220, with participants; and rounds of testing.

Average Number of burden per Total burden Process respondents response hours (in minutes)

Cognitive Think-Aloud Interviews ...... 36 60 36

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77767

Average Number of burden per Total burden Process respondents response hours (in minutes)

Screening ...... 360 6 36 Travel time to sites ...... 36 60 36

Total ...... 108

Request for Comments: Comments are clarity of the information to be information gathering tools such as invited on: (a) Whether the collection of collected; (d) ways to minimize the establishment license applications, information is necessary for the proper burden of the collection of information product license applications, product performance of the functions of the on those who are to respond, including permit applications, product and test agency, including whether the through the use of appropriate report forms and field study summaries. information will have practical utility; automated, electronic, mechanical, or Need and Use of the Information: (b) the accuracy of the agency’s estimate other technological collection APHIS uses the information collected as of the burden of the proposed collection techniques or other forms of information a primary basis for the approval or of information, including the validity of technology should be addressed to: Desk acceptance of issuing licenses or the methodology and assumptions used; Officer for Agriculture, Office of permits to ensure veterinary biological (c) ways to enhance the quality, utility, Information and Regulatory Affairs, products that are used in the United and clarity of the information to be Office of Management and Budget States are pure, safe, potent, and collected; and (d) ways to minimize the (OMB), effective. Also, APHIS uses the burden of the collection of information [email protected] or information to monitor the serials for on respondents, including through the fax (202) 395–5806 and to Departmental purity, safety, potency and efficacy that use of automated, electronic, Clearance Office, USDA, OCIO, Mail are produced by licensed manufacturers mechanical, or other technological Stop 7602, Washington, DC 20250– prior to their release for marketing. collection techniques or other forms of 7602. Comments regarding these Failing to collect this information would information technology. All comments information collections are best assured severely cripple APHIS’ ability to will become a matter of public record. of having their full effect if received prevent harmful veterinary biologics Agency Contact: Mitchell E. Hochberg within 30 days of this notification. from being distributed in the United or Jane Gao, Office of Regulations, Copies of the submission(s) may be States. Bureau of Consumer Financial obtained by calling (202) 720–8958. Description of Respondents: Business Protection, 1700 G Street NW., An agency may not conduct or or other for profit; State, Local or Tribal Washington, DC 20006; (202) 435–7700. sponsor a collection of information Government. OMB Reviewer: Shagufta Ahmed, Number of Respondents: 202. unless the collection of information Frequency of Responses: Office of Management and Budget, New displays a currently valid OMB control Executive Office Building, Room 10235, Recordkeeping; Reporting: On occasion. number and the agency informs Total Burden Hours: 74,386. Washington, DC 20503; (202) 395–7873. potential persons who are to respond to Dated: December 9, 2011. the collection of information that such Animal and Plant Health Inspection Robert Dahl, persons are not required to respond to Service PRA Clearance Officer, Department of the the collection of information unless it Title: Scrapie in Sheep and Goats; Treasury. displays a currently valid OMB control Interstate Movement Restrictions and [FR Doc. 2011–32080 Filed 12–13–11; 8:45 am] number. Indemnity Program. OMB Control Number: 0579–0101. BILLING CODE 4810–AM–P Animal Plant and Health Inspection Summary of Collection: Under the Service Farm Security and Rural Investment Act Title: Virus-Serum-Toxin Act and of 2002, Public Law 107–71, subtitle E, DEPARTMENT OF AGRICULTURE Regulations in 9 CFR, Subchapter E, Animal Health Protection, Section Submission for OMB Review; Parts 101–124. 10401–10418, the Secretary of Comment Request OMB Control Number: 0579–0013. Agriculture, in order to protect the Summary of Collection: The Virus- agriculture, environment, economy, and December 8, 2011. Serum-Toxin Act (37 Stat. 832–833, 21 health and welfare of the people of the The Department of Agriculture has U.S.C. 151–159) gives the United States United States by preventing, detecting, submitted the following information Department of Agriculture, the Animal controlling, and eradicating diseases collection requirement(s) to OMB for and Plant Health Inspection Service and pests of animal, is authorized to review and clearance under the (APHIS) the authority to promulgate cooperate with foreign countries, States, Paperwork Reduction Act of 1995, regulations designed to prevent the and other jurisdictions, or other person, Public Law 104–13. Comments importation, preparation, sale, or to prevent and eliminate burdens on regarding (a) whether the collection of shipment of harmful veterinary interstate commerce and foreign information is necessary for the proper biological products. A veterinary commerce, and to regulate effectively performance of the functions of the biological product is defined as all interstate commerce and foreign agency, including whether the viruses, serums, toxins, and analogous commerce. Scrapie is a progressive, information will have practical utility; products of natural or synthetic origin. degenerative and eventually fatal (b) the accuracy of the agency’s estimate In order to effectively implement the disease affecting the central nervous of burden including the validity of the licensing, production, labeling, system of sheep and goats. Its control is methodology and assumptions used; (c) importation, and other requirements, complicated because the disease has an ways to enhance the quality, utility and APHIS employs a number of extremely long incubation period

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77768 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

without clinical signs of disease, and Forest Service, Attn: Chris Ryan, cooperators to randomly selected there is no test for the disease and or Northern Region, P.O. Box 7669, visitors. Surveys will ask visitors to known treatment. The Animal and Plant Missoula, MT 59807. Comments also provide information about their trip and Health Inspection Service (APHIS) may be submitted via email to: activities, environmental and social restricts the interstate movement of [email protected]. conditions that may alter the quality of certain sheep and goats to help prevent The public may inspect comments their recreational experience, and their the spread of scrapie. APHIS has received at the Northern Region, 200 E. attitudes toward different existing and regulations at 9 CFR part 54 for an Broadway, Missoula, MT, during normal potential recreation management indemnity program to compensate business hours. Visitors are encouraged policies and practices. Visitors’ owners of sheep and goats destroyed to call ahead to (406) 329–3522 to responses are voluntary and because of scrapie. facilitate entry to the building. anonymous. Need and Use of the Information: FOR FURTHER INFORMATION CONTACT: Data will be entered into an Excel APHIS will collect information using Flathead—Colter Pence, Flathead database. Once data entry has been cooperative agreements; applications National Forests, (406) 387–3949 and completed and validated, the hardcopy from owners to participate in the Willamette—Matt Peterson, Willamette questionnaires will be discarded. Data Scrapie Flock Certification Program; National Forest at (541) 225–6421. will be imported into SPSS (Statistical post-exposure management and Individuals who use telecommunication Package for the Social Sciences) for monitoring plans; scrapie test records; devices for the deaf (TDD) may call the analysis. The database will be application for indemnity payments; Federal Relay Service (FRS) at 1–(800) maintained at the respective National certificates, permits, and owner 877–8339, between 8am and 8pm, Forest to and used for development of statements for the interstate movement Eastern Standard time, Monday through subsequent management plans and of certain sheep and goats; application Friday. direction. for premises identification numbers; SUPPLEMENTARY INFORMATION: Collecting thoughts from the public and applications for APHIS-approved Title: Flathead Wild and Scenic River on how these areas should be managed eartags, backtags, or tattoos, etc. Without Visitor Survey and McKenzie River and consideration of their interests and this information APHIS’ efforts to more Visitor Survey. priorities is a critical component to aggressively prevent the spread of OMB Number: 0596–NEW. developing a fair and balanced scrapie would be severely hindered. Expiration Date of Approval: NA. management plan and strategy. Without Description of Respondents: Business Type of Request: New. the public’s involvement, a plan has the or other for-profit; Not for Profit; and Abstract: The Flathead and risk of being biased and ineffective. State, Local, or Tribal Government. Willamette National Forests are Estimate of Annual Burden: 20 Number of Respondents: 112,000. minutes. Frequency of Responses: proposing to implement an information Type of Respondents: National Forest Recordkeeping; Reporting: On occasion. collection from forest visitors who are Total Burden Hours: 897,030. recreating on or near the Flathead Wild and National Park (Flathead) visitors and Scenic River or on or near the (adults, age 16 and older) who are Ruth Brown, McKenzie Wild and Scenic River or recreating on or near the Flathead or Departmental Information Collection McKenzie National Recreational Trail. McKenzie Rivers or the McKenzie Clearance Officer. There are different issues on each river National Recreational Trail. [FR Doc. 2011–32004 Filed 12–13–11; 8:45 am] creating a need to collect different Estimated Annual Number of BILLING CODE 3410–34–P information; therefore, two separate Respondents: 1000 (Willamette) and surveys will be administered for the 1200 (Flathead). Flathead and Willamette Rivers though Estimated Annual Number of DEPARTMENT OF AGRICULTURE the methodology for collection will be Responses per Respondent: 1. essentially identical. Estimated Total Annual Burden on Forest Service The visitor survey will support Respondents: 333 hours (Willamette) Information Collection; Flathead and development of the Flathead and 400 hours (Flathead). Comprehensive River Management Plan McKenzie Rivers and McKenzie Comment Is Invited National Recreational Trail Visitor (CRMP), implementation of the exiting Surveys Upper McKenzie River Management Comment is invited on: (1) Whether Plan, and will provide needed this collection of information is AGENCY: Forest Service, USDA. information for managers to protect and necessary for the stated purposes and ACTION: Notice; request for comment. enhance the outstandingly remarkable the proper performance of the functions values for which the Flathead and of the Agency, including whether the SUMMARY: In accordance with the McKenzie Rivers were designated. In information will have practical or Paperwork Reduction Act of 1995, the addition, the survey proposed will help scientific utility; (2) the accuracy of the Forest Service is seeking comments managers to identify the most important Agency’s estimate of the burden of the from all interested individuals and indicators to monitor over the life of the collection of information, including the organizations on the new information plan to determine if any thresholds are validity of the methodology and collection, Flathead Wild and Scenic being approached and if management assumptions used; (3) ways to enhance River Visitor Survey and McKenzie action may need to occur. the quality, utility, and clarity of the River Visitor Survey. Information will be collected from information to be collected; and (4) DATES: Comments must be received in visitors who are recreating on or near ways to minimize the burden of the writing on or before February 13, 2012 the Flathead and McKenzie Rivers and collection of information on to be assured of consideration. McKenzie National Recreational Trail respondents, including the use of Comments received after that date will by in-person, written surveys which automated, electronic, mechanical, or be considered to the extent practicable. will be administered by Forest Service other technological collection ADDRESSES: Comments concerning this or National Park Service (Flathead) techniques or other forms of information notice should be addressed to: USDA, employees, volunteers, or study technology.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77769

All comments received in response to Individuals who use implemented and will document the this notice, including names and telecommunication devices for the deaf decision and reasons for the decision in addresses when provided, will be a (TDD) may call the Federal Information a Record of Decision. That decision will matter of public record. Comments will Relay Service (FIRS) at 1–800–877–8339 be subject to Forest Service Appeal be summarized and included in the between 8 a.m. and 8 p.m., Eastern Regulations. The responsibility for submission request toward Office of Time, Monday through Friday. preparing the DEIS and FEIS has been Management and Budget approval. SUPPLEMENTARY INFORMATION: delegated to John Gubel, District Ranger, Blue Mountain Ranger District. Dated: December 8, 2011. Purpose and Need for Action Leanne M. Marten, Preliminary Issues The purpose of this project is to Acting Deputy Chief, NFS. authorize grazing on all or portions of During internal review, the Blue [FR Doc. 2011–32006 Filed 12–13–11; 8:45 am] the North Finger landscape in such a Mountain Ranger District has identified BILLING CODE 3410–11–P manner that will continue to move the following concerns or issues with resource conditions toward desired the proposal: Livestock can affect plant conditions and be consistent with Forest community species compositions and DEPARTMENT OF AGRICULTURE Plan standards and guidelines. vigor; Livestock can impact riparian Forest Service The reason we are undertaking this areas and watershed conditions. process at this time is that courts in the Scoping Process North Finger Grazing Authorization 1990s found grazing permits should not Project, Malheur National Forest, Grant be issued without an environmental This notice of intent initiates the County, OR analysis under the National scoping process, which guides the Environmental Policy Act. In response, development of the environmental AGENCY: Forest Service, USDA. Congress passed the Range Rescission impact statement. Initial scoping began with the project listed in the 2011 ACTION: Notice of intent to prepare an Act of 1995, requiring the Forest Service environmental impact statement. to develop and adhere to a schedule for Winter Edition of the Malheur National completion of NEPA analysis on all its Forest’s Schedule of Proposed Actions SUMMARY: The USDA Forest Service will grazing allotments. This proposal and and public scoping conducted in June prepare an environmental impact upcoming analysis are being undertaken 2011. statement (EIS) to disclose in order to help meet that schedule as It is important that reviewers provide environmental effects on a proposed mandated by law. their comments at such times and in such manner that they are useful to the action to authorize grazing on all or Proposed Action portions of allotments within the North agency’s preparation of the Finger Landscape. These allotments are The proposed action is to continue to environmental impact statement. within the Upper Deer Creek, Basin permit livestock grazing by Therefore, comments should be Creek, Upper Long Creek, Lower Fox incorporating adaptive management provided prior to the close of the Creek, Upper Fox Creek, and Upper strategies across the North Finger comment period and should clearly Cottonwood Creek subwatersheds. The landscape. Adaptive Management is articulate the reviewer’s concerns and North Finger Grazing Authorization defined as, ‘‘The process of making use contentions. Project area, located approximately 20 of monitoring information to determine Comments received in response to miles northwest of John Day, Oregon, if management changes are needed, and this solicitation, including names and encompasses approximately 18,076 if so, what changes, and to what addresses of those who comment, will acres of National Forest System Lands degree.’’ An adaptive management be part of the public record for this administered by the Blue Mountain strategy would define the desired proposed action. Comments submitted Ranger District, Malheur National resource conditions, monitoring anonymously will be accepted and Forest. requirements, resource triggers or considered, however. thresholds, and actions to be taken if Dated: December 7, 2011. DATES: Comments concerning the scope triggers are reached. Site-specific Teresa Raaf, of the analysis must be received by actions to move the existing ground January 13, 2012. The draft conditions toward desired conditions Forest Supervisor. environmental impact statement is could also be identified. [FR Doc. 2011–32022 Filed 12–13–11; 8:45 am] expected June 2012 and the final BILLING CODE 3410–11–P environmental impact statement is Possible Alternatives expected September 2012. Alternatives will include the ADDRESSES: Send written comments to proposed action, no action (no grazing), DEPARTMENT OF COMMERCE and additional alternatives that respond the Responsible Official, Teresa Raaf, Foreign-Trade Zones Board Forest Supervisor, Malheur National to issues generated during the scoping Forest, 431 Patterson Bridge Road, P.O. process. The agency will give notice of [Docket 78–2011] Box 909, John Day, Oregon 97845. the full environmental analysis and Comments may also be sent via email to decisionmaking process so interested Foreign-Trade Zone 49—Newark/ comments-pacificnorthwest- and affected people may participate and Elizabeth, NJ; Application for [email protected], or via facsimile to contribute to the final decision. Expansion (541) 575–3002. Responsible Official An application has been submitted to FOR FURTHER INFORMATION CONTACT: Teresa Raaf, Malheur National Forest the Foreign-Trade Zones (FTZ) Board Kelly Ware, Project Lead, Malheur Supervisor. (the Board) by the Port Authority of National Forest, 431 Patterson Bridge New York and New Jersey, grantee of Road, P.O. Box 909, John Day, Oregon, Nature of Decision To Be Made FTZ 49, requesting authority to expand telephone (541) 575–3432, email The Responsible Official will decide its zone in the Newark/Elizabeth, New [email protected]. if the proposed project will be Jersey, area, within the New York/

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77770 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Newark Customs and Border Protection Park Court and 1 Industrial Road, South circular welded non-alloy steel pipe port of entry. The application was Brunswick. from Mexico.1 This administrative submitted pursuant to the provisions of The applicant is now requesting review covers mandatory respondents the Foreign-Trade Zones Act, as authority to expand the zone to include Mueller Comercial de Mexico, S. de R.L. amended (19 U.S.C. 81a–81u), and the the following site: Proposed Site 13 (546 de C.V. (Mueller), Southland Pipe regulations of the Board (15 CFR part acres)—Raritan Center Business Park, Nipples Company, Inc. (Southland), 400). It was formally filed on December Woodbridge Avenue & Raritan Center Lamina y Placa Comercial, S.A. de C.V. 7, 2011. Parkway, Townships of Edison and (Lamina), and Tuberia Nacional, S.A. de FTZ 49 was approved by the Board on Woodbridge, Middlesex County. No C.V. (TUNA).2 April 6, 1979 (Board Order 146, 44 FR specific manufacturing authority is We determine that the respondents 22502, 4/16/79) and expanded on May being requested at this time. Such did not have reviewable sales, 26, 1983 (Board Order 211, 48 FR 24958, requests would be made on a case-by- shipments, or entries during the POR. 6/3/83), on October 23, 1987 (Board case basis. DATES: Effective Date: December 14, Order 365, 52 FR 41599, 10/29/87), on In accordance with the Board’s 2011. April 19, 1990 (Board Order 470, 55 FR regulations, Kathleen Boyce of the FTZ FOR FURTHER INFORMATION CONTACT: 17478, 4/25/90), on December 15, 1999 Staff is designated examiner to evaluate Mark Flessner or Robert James, AD/CVD (Board Order 1067, 64 FR 72462–72643, and analyze the facts and information Operations, Office 7, Import 12/28/99), on April 14, 2006 (71 FR presented in the application and case 23895, 4/25/06), on February 28, 2007 Administration, International Trade record and to report findings and Administration, U.S. Department of (Board Order 1504, 72 FR 10642–10643, recommendations to the Board. 3/9/07), and on July 16, 2009 (Board Commerce, 14th Street and Constitution Public comment is invited from Avenue NW., Washington, DC 20230; Order 1634, 74 FR 37688–37689, 7/29/ interested parties. Submissions (original 09). telephone: (202) 482–6312 and (202) and 3 copies) shall be addressed to the 482–0649, respectively. The current zone project includes the Board’s Executive Secretary at the SUPPLEMENTARY INFORMATION: following sites in the Newark/Elizabeth address below. The closing period for area: Site 1 (total—2,121 acres)—Port their receipt is February 13, 2012. Background Newark/Elizabeth Port Authority Rebuttal comments in response to Marine Terminal (2,075 acres), a parcel On August 10, 2011, the Department material submitted during the foregoing published in the Federal Register the (23 acres) located at 888 Doremus period may be submitted during the Avenue, Newark, a parcel (6 acres) preliminary results of the administrative subsequent 15-day period to February review of the antidumping duty order located at 580 Division Street, Elizabeth, 27, 2012. and a parcel (17 acres) located at 251– on certain circular welded non-alloy A copy of the application will be steel pipe from Mexico for the period 259 Kapowski Road, Elizabeth; Site 2 available for public inspection at the (64 acres)—Global Terminal and November 1, 2009, to October 31, 2010. Office of the Executive Secretary, See Preliminary Results. Container Services facility (41 acres) Foreign-Trade Zones Board, Room 2111, and adjacent Jersey Distribution In response to the Department’s U.S. Department of Commerce, 1401 invitation to comment on the Services facility (23 acres) Jersey City/ Constitution Avenue NW., Washington, Bayonne; Site 3 (124 acres)—Port preliminary results of this review, DC 20230–0002, and in the ‘‘Reading Petitioner Wheatland Tube Company Authority Industrial Park, adjacent to Room’’ section of the Board’s Web site, the Port Newark/Elizabeth Port filed a case brief on September 9, 2011. which is accessible via http://www. Respondents Lamina and TUNA jointly Authority Marine Terminal; Site 4 (198 trade.gov/ftz. For further information, acres)—Port Authority Auto Marine filed a rebuttal brief on September 13, contact Kathleen Boyce at Kathleen. 2011. Terminal (145 acres) and adjacent 53- [email protected] or (202) 482–1346. acre Greenville Industrial Park on Upper Scope of the Order New York Bay’s Port Jersey Channel in Dated: December 7, 2011. The products covered by this order Bayonne and Jersey City; Site 5 (40 Andrew McGilvray, are circular welded non-alloy steel acres)—Newark International Airport jet Executive Secretary. fuel storage and distribution system in pipes and tubes, of circular cross- [FR Doc. 2011–32090 Filed 12–13–11; 8:45 am] section, not more than 406.4 millimeters the Cities of Newark and Elizabeth BILLING CODE P (Union and Essex Counties); Site 6 (407 (16 inches) in outside diameter, acres)—within an industrial park regardless of wall thickness, surface located at 100 Central Avenue, Kearny; DEPARTMENT OF COMMERCE finish (black, galvanized, or painted), or Site 7 (114 acres, sunset 3/31/14)— end finish (plain end, beveled end, within the I–Port 12 industrial park, International Trade Administration threaded, or threaded and coupled). These pipes and tubes are generally located at exit 12 of the NJ Turnpike, [A–201–805] Carteret; Site 8 (176 acres, sunset 3/31/ known as standard pipes and tubes and are intended for the low pressure 14)—within the I–Port 440 industrial Certain Circular Welded Non-Alloy conveyance of water, steam, natural gas, park, located east of State St. and north Steel Pipe From Mexico: Final Results and other liquids and gases in plumbing of the Outer Bridge Crossing, Perth of Antidumping Duty Administrative and heating systems, air conditioning Amboy; Site 9 (317 acres, sunset 3/31/ Review 14)—Port Reading Business Park located on Port Reading Avenue, Woodbridge; AGENCY: Import Administration, 1 See Certain Circular Welded Non-Alloy Steel International Trade Administration, Pipe From Mexico: Preliminary Results of Site 10 (73 acres, sunset 3/31/14)—Port Antidumping Duty Administrative Review, 76 FR Elizabeth Business Park located at 10 Department of Commerce. 49437 (August 10, 2011) (Preliminary Results). North Avenue East, Elizabeth; Site 11 SUMMARY: On August 10, 2011, the 2 The Department determined that Lamina is the (379 acres, sunset 7/31/14)—Heller Department of Commerce (the successor-in-interest to TUNA. See Notice of Final Results of Antidumping Duty Changed Industrial Park located at 205 Mill Road, Department) published the preliminary Circumstances Review: Certain Circular Welded Edison; and, Site 12 (23 acres, sunset 7/ results of the administrative review of Non-Alloy Steel Pipe From Mexico, 75 FR 82374 31/14)—located at 400, 440, 490 Heller the antidumping duty order on certain (December 30, 2010).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77771

units, automatic sprinkler systems, and Final Results of Review we find it appropriate in this case to other related uses, and generally meet Because we have found that the instruct CBP to liquidate any existing ASTM A–53 specifications. Standard respondents did not have reviewable entries of merchandise produced by the pipe may also be used for light load- sales, shipments, or entries during the respondents, and exported by other bearing applications, such as for fence POR, there is no change in the parties at the all-others rate. See, e.g., tubing, and as structural pipe tubing antidumping duties for any of the Magnesium Metal From the Russian used for framing and support members respondents. Federation: Preliminary Results of for reconstruction or load-bearing Antidumping Duty Administrative purposes in the construction, Assessment Review, 75 FR 26922, 26923 (May 13, shipbuilding, trucking, farm equipment, The Department will determine, and 2010), unchanged in Magnesium Metal and related industries. Unfinished U.S. Customs and Border Protection From the Russian Federation: Final conduit pipe is also included in these (CBP) shall assess, antidumping duties Results of Antidumping Duty orders. All carbon steel pipes and tubes on all appropriate entries, pursuant to Administrative Review, 75 FR 56989, within the physical description outlined section 751(a)(1) of the Act and 19 CFR 56990 (September 17, 2010). In above are included within the scope of 351.212(b). We will issue appraisement addition, the Department finds that it is this order, except line pipe, oil country instructions directly to CBP to assess more consistent with the May 2003 tubular goods, boiler tubing, mechanical antidumping duties on appropriate clarification not to rescind the review in tubing, pipe and tube hollows for entries by applying the assessment rate its entirety but, rather, to complete the redraws, finished scaffolding, and to the entered value of the merchandise. review with respect to the respondents, issuing appropriate instructions to CBP finished conduit. Standard pipe that is Pursuant to 19 CFR 356.8(a), the based on the final results of the review. dual or triple certified/stenciled that Department intends to issue assessment See the ‘‘Assessment Rates’’ section of enters the U.S. as line pipe of a kind instructions to CBP 41 days after the this notice below. used for oil or gas pipelines is also not date of publication of these final results included in this order. of review. Cash Deposit Requirements The merchandise covered by the order Since the implementation of the 1997 The following cash deposit and subject to this review are currently regulations, our practice concerning no requirements will be effective upon classified in the Harmonized Tariff shipment respondents had been to publication of these final results for all Schedule of the United States (HTSUS) rescind the administrative review if the shipments of the subject merchandise at subheadings: 7306.30.10.00, respondent certifies that it had no entered, or withdrawn from warehouse, 7306.30.50.25, 7306.30.50.32, shipments and we have confirmed for consumption on or after the 7306.30.50.40, 7306.30.50.55, through our examination of CBP data, as publication date of these final results of 7306.30.50.85, and 7306.30.50.90. well as a no-shipment query to the administrative review, consistent with Although the HTSUS subheadings are ports, that there were no shipments of section 751(a)(1) of the Act: (1) The cash provided for convenience and customs subject merchandise during the POR. deposit rate for the reviewed companies purposes, our written description of the See Antidumping Duties; Countervailing will be the rates in effect from the most scope of these proceedings is Duties, 62 FR 27296, 27393 (May 19, recently-completed POR; (2) if the dispositive. 1997); see also Oil Country Tubular exporter is not a firm covered in this Goods From Japan: Preliminary Results review, but was covered in a previous Analysis of Comments Received of Antidumping Duty Administrative review or the original less-than-fair- Review and Partial Rescission of value (LTFV) investigation, the cash All issues raised in the case brief and Review, 70 FR 53161, 53162 (September deposit rate will continue to be the rebuttal brief are addressed in the Issues 5, 2005), unchanged in Oil Country company-specific rate published for the and Decision Memorandum (Decision Tubular Goods From Japan: Final most recent period; (3) if the exporter is Memorandum) from Christian Marsh, Results and Partial Rescission of not a firm covered in this review, a prior Deputy Assistant Secretary for Antidumping Duty Administrative review, or the original LTFV Antidumping and Countervailing Duty Review, 71 FR 95 (January 3, 2006). In investigation, but the manufacturer is, Operations, to Paul Piquado, Assistant such circumstances, we normally the cash deposit rate will be the rate Secretary for Import Administration, instructed CBP to liquidate any entries established for the most recent period dated December 2, 2011, which is from the no-shipment company at the for the manufacturer of the hereby adopted by this notice. A list of deposit rate in effect on the date of merchandise; and (4) the cash deposit the issues raised is attached to this entry. rate for all other manufacturers or notice as Appendix I. The Decision In our May 6, 2003, ‘‘automatic exporters will continue to be 32.62 Memorandum is a public document and assessment’’ clarification, we explained percent, the all-others rate established is on file electronically via Import that, where respondents in an in the LTFV investigation. See Final Administration’s Antidumping and administrative review demonstrate that Determination of Sales at Less Than Countervailing Duty Centralized they had no knowledge of sales through Fair Value: Circular Welded Non-Alloy Electronic Service System (IA ACCESS). resellers to the United States, we would Steel Pipe From Mexico, 57 FR 42953 Access to IA ACCESS is available in the instruct CBP to liquidate such entries at (September 17, 1992). These deposit Central Records Unit (CRU), room 7046 the all-others rate applicable to the requirements, when imposed, shall of the main Department of Commerce proceeding. See Antidumping and remain in effect until further notice. building. In addition, a complete Countervailing Duty Proceedings: version of the Issues and Decision Assessment of Antidumping Duties, 68 Notification to Interested Parties Memorandum can be accessed directly FR 23954 (May 6, 2003) (Assessment This notice also serves as a final on the Internet at http://www.trade.gov/ Policy Notice). reminder to importers of their ia/. The signed Issues and Decision Because ‘‘as entered’’ liquidation responsibility under 19 CFR Memorandum and the electronic instructions do not alleviate the 351.402(f)(2) to file a certificate versions of the Issues and Decision concerns which the May 2003 regarding the reimbursement of Memorandum are identical in content. clarification was intended to address, antidumping duties prior to liquidation

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77772 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

of the relevant entries during this Antidumping Duty Order; and Partial In preparation for verification, the review period. Failure to comply with Rescission of Administrative Review, 76 Department issued supplemental this requirement could result in the FR 34048 (June 10, 2011) (‘‘Preliminary questionnaires to RZBC and Yixing Department’s presumption that Results’’). We invited interested parties Union on August 8, 2011. Yixing Union reimbursement of the antidumping to comment on our Preliminary Results. submitted its supplemental duties occurred and the subsequent Based on our findings from on-site questionnaire response, with an assessment of doubled antidumping verifications and analysis of the updated factor of production (‘‘FOP’’) duties. comments received, we made certain database, on August 23, 2011. RZBC This notice also serves as a reminder changes to our margin calculations for submitted its supplemental to parties subject to administrative the respondents. The final dumping questionnaire response, with updated protective orders (APOs) of their margins for this review are listed in the U.S. sales and FOP databases, on August responsibility concerning the ‘‘Final Results of the Review’’ section 24, 2011. From August 29, 2011, to disposition of proprietary information below. September 2, 2011, and from September disclosed under APO in accordance DATES: 5, 2011, to September 9, 2011, the with 19 CFR 351.305, which continues Effective Date: December 14, 2011. Department conducted on-site to govern business proprietary verifications of RZBC and Yixing Union, information in this segment of the FOR FURTHER INFORMATION CONTACT: respectively. On October 12, 2011, proceeding. Timely written notification Krisha Hill or Maisha Cryor, AD/CVD RZBC, Yixing Union, Petitioners, and of the return or destruction of APO Operations, Office 4, Import the Government of the People’s materials or conversion to judicial Administration, International Trade Republic of China, Ministry of protective order is hereby requested. Administration, U.S. Department of Commerce, Bureau of Fair Trade for Failure to comply with the regulations Commerce, 14th Street and Constitution Imports and Exports, submitted case and the terms of an APO is a Avenue NW., Washington, DC 20230; briefs. RZBC, Yixing Union, and sanctionable violation. telephone: (202) 482–4037 or (202) 482– Petitioners submitted rebuttal briefs on This notice is issued and published in 5831, respectively. October 18, 2011. accordance with sections 751(a)(1) and SUPPLEMENTARY INFORMATION: 777(i)(1) of the Act. Period of Review Dated: December 2, 2011. Background The period of review (‘‘POR’’) is Ronald K. Lorentzen, On June 10, 2011, the Department November 20, 2008, through April 30, Acting Assistant Secretary for Import published the Preliminary Results of the 2010. Administration. first administrative review of the Scope of the Order antidumping duty order on citric acid Appendix—List of Issues in Decision from the PRC. On June 30, 2011, both The scope of the order includes all Memorandum respondents, RZBC Co., Ltd., RZCB Imp. grades and granulation sizes of citric Comment 1: Allegedly Incorrect & Exp. Co., Ltd., and RZBC (Juxian) Co., acid, sodium citrate, and potassium Classification of Entry Documents Ltd. (collectively ‘‘RZBC’’) and Yixing citrate in their unblended forms, Comment 2: Verification Union Biochemical Co., Ltd. (‘‘Yixing whether dry or in solution, and [FR Doc. 2011–32102 Filed 12–13–11; 8:45 am] Union’’), submitted surrogate value regardless of packaging type. The scope BILLING CODE 3510–DS–P comments. On July 20, 2011, the also includes blends of citric acid, Department released a Memorandum to sodium citrate, and potassium citrate; as the File, titled ‘‘First Administrative well as blends with other ingredients, DEPARTMENT OF COMMERCE Review of the Antidumping Duty Order such as sugar, where the unblended on Citric Acid and Certain Citrate Salts form(s) of citric acid, sodium citrate, International Trade Administration from the People’s Republic of China: and potassium citrate constitute 40 [A–570–937] Industry-Specific Surrogate Wage Rate percent or more, by weight, of the blend. and Surrogate Financial Ratio The scope of the order also includes all Citric Acid and Certain Citrate Salts Adjustments,’’ dated July 20, 2011 forms of crude calcium citrate, from the People’s Republic of China: (‘‘Wage Rate Memorandum’’), for use in including dicalcium citrate Final Results of the First these final results. On June 30, 2010, monohydrate, and tricalcium citrate Administrative Review of the both RZBC and Yixing Union submitted tetrahydrate, which are intermediate Antidumping Duty Order surrogate value comments. On August 3, products in the production of citric 2011, Petitioners submitted comments acid, sodium citrate, and potassium AGENCY: Import Administration, citrate. The scope of the order does not International Trade Administration, on the industry-specific surrogate wage rate methodology and offered an include calcium citrate that satisfies the Department of Commerce. standards set forth in the United States SUMMARY: alternative source to value the wage On June 10, 2011, the Pharmacopeia and has been mixed with Department of Commerce rate.1 On August 4, 2011, the Department published a notice in the a functional excipient, such as dextrose (‘‘Department’’) published the or starch, where the excipient preliminary results of the first Federal Register fully extending the time limit for the final results of review constitutes at least 2 percent, by weight, administrative review of the of the product. The scope of the order antidumping duty order on citric acid by the full 60 days allowed under section 751(a)(3)(A) of the Tariff Act of includes the hydrous and anhydrous and certain citrate salts (‘‘citric acid’’) forms of citric acid, the dihydrate and from the People’s Republic of China 1930, as amended (‘‘the Act’’), to December 7, 2011.2 anhydrous forms of sodium citrate, (‘‘PRC’’), covering the period November otherwise known as citric acid sodium 20, 2008, through April 30, 2010. See 1 salt, and the monohydrate and Citric Acid and Certain Citrate Salts Petitioners are Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle from the People’s Republic of China: Americas LLC. Limit for the Final Results of the Antidumping Duty Preliminary Results of the First 2 See Citric Acid and Certain Citrate Salts from Administrative Review, 76 FR 47146 (August 4, Administrative Review of the the People’s Republic of China: Extension of Time 2011).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77773

monopotassium forms of potassium Changes to Financial Ratio Calculations results, we relied on a single surrogate citrate. Sodium citrate also includes • We treated other income as an offset country to value labor. Specifically, we both trisodium citrate and monosodium to selling, general and administrative valued labor using an Indonesian citrate, which are also known as citric (‘‘SG&A’’) expenses.3 industry-specific wage rate based on acid trisodium salt and citric acid • We capped the foreign exchange labor cost and compensation data from monosodium salt, respectively. Citric gains and losses (net figure) to not more Chapter 5B of the International Labor acid and sodium citrate are classifiable than total financial expenses (i.e., Organization, under Sub-Classification 10 under 2918.14.0000 and 2918.15.1000 of financial expenses, which includes 24 of the ISIC–Revision 3 standard. the Harmonized Tariff Schedule of the interest expenses and provision and Surrogate Country United States (‘‘HTSUS’’), respectively. bank charges, cannot be less than zero).4 In the Preliminary Results, the Potassium citrate and crude calcium Also, we made a profit adjustment to citrate are classifiable under Department stated that it selected exclude the amounts of foreign Indonesia as the appropriate surrogate 2918.15.5000 and 3824.90.9290 of the exchange gains above the total financial HTSUS, respectively. Blends that country to use in this administrative expenses. review for the following reasons: (1) It include citric acid, sodium citrate, and • We included the change in finished is a significant producer of comparable potassium citrate are classifiable under goods inventory in the denominators of merchandise; and (2) it is at a similar 3824.90.9290 of the HTSUS. Although the SG&A and profit surrogate ratios for the HTSUS subheadings are provided 5 level of economic development the final results. pursuant to section 773(c)(4) of the Act. for convenience and customs purposes, • We adjusted profit to exclude We used Thai and Indian surrogate the written description of the interest income. values in certain instances where merchandise is dispositive. • We excluded the current and Indonesian data was unavailable. Since deferred income tax expenses from Analysis of Comments Received the Department did not receive SG&A/interest expense. All issues raised in the case and comments on surrogate country rebuttal briefs filed by parties in this Changes to RZBC’s Margin Calculation selection after the Preliminary Results, review are addressed in the • We adjusted RZBC’s reported by- we have not made changes with respect Memorandum from Christian Marsh, product offsets by adding the cost of to surrogate country selection for the Deputy Assistant Secretary for packaging high-protein corn feed and final results. Antidumping and Countervailing Duty mycelium to the normal value.6 Operations, to Paul Piquado, Assistant Separate Rates Determination Secretary for Import Administration, Changes to Yixing Union’s Margin In proceedings involving non-market titled ‘‘Issues and Decision Calculation economy (‘‘NME’’) countries, the Memorandum for the Final Results of • We adjusted Yixing Union’s Department holds a rebuttable the 2008–2010 Antidumping Duty reported by-product offsets by adding presumption that all companies within Administrative Review of Citric Acid the cost of packaging corn feed, the country are subject to government and Certain Citrate Salts from the mycelium, and calcium sulfate control and, thus, should be assessed a People’s Republic of China,’’ dated dihydrate to the normal value.7 single antidumping duty rate. It is the concurrently with this notice (‘‘Issues Department’s policy to assign all and Decision Memorandum’’), which is Changes to Surrogate Values exporters of subject merchandise in an hereby adopted by this notice. A list of • We changed the surrogate value NME country this single rate unless an the issues that parties raised and to used to value the respondents’ sulfuric exporter can demonstrate that it is which we responded in the Issues and acid input.8 For the final results, we sufficiently independent so as to be Decision Memorandum follows as an have inflated the Indonesian sulfuric entitled to a separate rate.11 appendix to this notice. The Issues and acid value used in the preceding less The Department determined that Decision Memorandum is a public than fair value investigation to the RZBC and Yixing Union met the criteria document and is on file electronically current POR. for separate rate status in the via Import Administration’s Preliminary Results.12 We have not Antidumping and Countervailing Duty Changes to Calculation of Wage Rate received any information since issuance Centralized Electronic Service System • For the Preliminary Results, we of the Preliminary Results that provides (‘‘IA ACCESS’’). Access to IA ACCESS calculated a wage-rate based upon a a basis for reconsidering this is available in the Central Records Unit, simple average of industry-specific wage preliminary determination. For the final room 7046 of the main Department of rates from countries that were both results, the Department continues to Commerce building. In addition, a economically comparable and find that the evidence placed on the complete version of the Issues and significant producers of comparable record of this administrative review by Decision Memorandum can be accessed merchandise.9 However, for the final the two respondents demonstrates both directly on the Internet at http:// de jure and de facto absence of www.trade.gov/ia/. The signed Issues 3 See Issues and Decision Memorandum at government control with respect to each and Decision Memorandum and the Comment 9. electronic versions of the Issues and 4 See Issues and Decision Memorandum at the People’s Republic of China: Industry-Specific Comment 10. Decision Memorandum are identical in Surrogate Wage Rate and Surrogate Financial Ratio 5 See Issues and Decision Memorandum at Adjustments,’’ dated July 20, 2011. content. Comment 11. 10 See Issues and Decision Memorandum at 6 Changes Since the Preliminary Results See Issues and Decision Memorandum at Comment 7. Comment 6. 11 See Notice of Final Determination of Sales at Based on an analysis of the comments 7 See Issues and Decision Memorandum at Less Than Fair Value: Sparklers from the People’s received from interested parties, the Comment 6. Republic of China, 56 FR 20588 (May 6, 1991), as Department has made certain changes to 8 See Issues and Decision Memorandum at further developed in Notice of Final Determination Comment 12. of Sales at Less Than Fair Value: Silicon Carbide the margin calculations. For the final 9 See Memorandum to the File regarding ‘‘First from the People’s Republic of China, 59 FR 22585 results, the Department has made the Administrative Review of the Antidumping Duty (May 2, 1994). following changes: Order on Citric Acid and Certain Citrate Salts from 12 See Preliminary Results, 76 FR at 34049–50.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77774 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

company’s respective exports of the valorem rate for each importer (or antidumping duties prior to liquidation subject merchandise. Therefore, the customer) by dividing the total dumping of the relevant entries during this Department continues to find that RZBC margins for reviewed sales to that party review period. Failure to comply with and Yixing Union meet the criteria for by the total entered values associated this requirement could result in the a separate rate. with those transactions. For duty- Secretary’s presumption that assessment rates calculated on this reimbursement of the antidumping Export Subsidy Adjustment basis, we will direct CBP to assess the duties occurred and the subsequent Section 772(c)(1)(C) of the Act resulting ad valorem rate against the assessment of double antidumping unconditionally states that U.S. price entered customs values for the subject duties. ‘‘shall be increased by the amount of merchandise. Where appropriate, we any countervailing duty imposed on the calculated a per-unit rate for each Administrative Protective Order subject merchandise * * * to offset an importer (or customer) by dividing the This notice also serves as a reminder export subsidy.’’ 13 The Department total dumping margins for reviewed to parties subject to administrative determined in its final results of the sales to that party by the total sales protective order (‘‘APO’’) of their companion countervailing duty quantity associated with those responsibility concerning the return or administrative review that RZBC’s transactions. For duty-assessment rates destruction of proprietary information merchandise benefited from export calculated on this basis, we will direct disclosed under the APO in accordance subsidies.14 15 Therefore, we have CBP to assess the resulting per-unit rate with 19 CFR 351.305(a)(3), which increased RZBC’s U.S. price for against the entered quantity of the continues to govern business countervailing duties imposed subject merchandise. Where an importer proprietary information in this segment attributable to export subsidies, where (or customer) specific assessment rate is of the proceeding. Timely written appropriate.16 de minimis (i.e., less than 0.50 percent), notification of the return/destruction of the Department will instruct CBP to Final Results of the Review APO materials or conversion to judicial assess that importer’s (or customer’s) protective order is hereby requested. The Department has determined that entries of subject merchandise without Failure to comply with the regulations the following margins exist for the regard to antidumping duties in and terms of an APO is a violation period November 20, 2008, through accordance with 19 CFR 351.106(c)(2). which is subject to sanction. April 30, 2010: The Department intends to issue assessment instructions directly to CBP Disclosure Exporter Margin 15 days after the publication of this We intend to disclose the calculations notice. RZBC Co., Ltd./RZBC Imp. & Exp. 0% performed within five days of the date Co., Ltd./RZBC (Juxian) Co., Ltd.. Cash-Deposit Requirements of publication of this notice to parties in Yixing Union Biochemical Co., Ltd. ... 1.11% this proceeding in accordance with 19 The following cash-deposit CFR 351.224(b). requirements will be effective upon Assessment Rates publication of the final results of this We are issuing and publishing the Pursuant to section 751(a)(2)(A) of the administrative review for all shipments final results and notice in accordance Act and 19 CFR 351.212(b), the of the subject merchandise from the PRC with sections 751(a)(1) and 777(i)(1) of Department will determine, and U.S. entered, or withdrawn from warehouse, the Act. Customs and Border Protection (‘‘CBP’’) for consumption on or after the Dated: December 7, 2011. shall assess, antidumping duties on all publication date, as provided by section Christian Marsh, appropriate entries of subject 751(a)(2)(C) of the Act: (1) For RZBC Acting Assistant Secretary for Import merchandise in accordance with the and Yixing Union, the cash deposit rate Administration. final results of this review. The will be the margins listed above; (2) for Department intends to issue assessment previously investigated or reviewed PRC Appendix instructions to CBP 15 days after the and non-PRC exporters not listed above General Issues publication date of the final results of that have separate rates, the cash Comment 1: Whether the Department Should this review. For assessment purposes, deposit rate will continue to be the Exclude Water from the Margin Calculation we calculated exporter/importer (or exporter-specific rate published for the Comment 2: Whether the Department Failed customer) specific assessment rates for most recent period; (3) for all PRC to Inflate the Water Value merchandise subject to this review exporters of subject merchandise which Comment 3: Certifications in Petitioners’ consistent with 19 CFR. 351.212(b)(1). have not been found to be entitled to a Previous Submissions Where appropriate, we calculated an ad separate rate, the cash deposit rate will Comment 4: Double Remedy Comment 5: Zeroing be the PRC-wide rate of 156.87 percent; 13 Comment 6: Whether the Department Should See, e.g., Carbazole Violet Pigment 23 from and (4) for all non-PRC exporters of Disallow RZBC’s and Yixing Union’s By- India: Final Results of Antidumping Duty subject merchandise which have not Administrative Review, 75 FR 38076, 38077 (July 1, product Offsets 2010) and accompanying Issues and Decision received their own rate, the cash deposit Comment 7: Whether to Use an Alternate Memorandum at Comment 1. rate will be the rate applicable to the Source to Calculate the Surrogate Wage 14 See Citric Acid and Certain Citrate Salts from PRC exporters that supplied that non- Rate and Financial Ratios the People’s Republic of China: Final Results of PRC exporter. These deposit Comment 8: Whether the Department Should Countervailing Duty Administrative Review, dated Use Multiple Financial Statements from a December 5, 2011 (not yet published). requirements, when imposed, shall remain in effect until further notice. Single Company 15 Yixing Union’s merchandise was not found to Comment 9: Whether the Department Should have benefitted from export subsidies. Id. Adjust the Financial Ratio Calculation to 16 Notification to Importers See Memorandum to the File regarding, Account for Interest Income and Other ‘‘Administrative Review of the Antidumping Duty This notice also serves as a final Income Order on Citric Acid and Certain Citrate Salts from reminder to importers of their the People’s Republic of China: Analysis of the Comment 10: Whether the Department Final Results Margin Calculation for RZBC Co., responsibility under 19 CFR Should Adjust the Financial Ratio Ltd., RZBC Import & Export Co., Ltd., and RZBC 351.402(f)(2) to file a certificate Calculation to Account for Foreign (Juxian) Co., Ltd.,’’ dated December 7, 2011. regarding the reimbursement of Exchange Gains and Losses

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77775

Comment 11: Whether the Department Reasons: Each foreign instrument is an Act further states that if it is not Should Adjust the Financial Ratio electron microscope and is intended for practicable to complete the review Calculation to Account for Finished Goods research or scientific educational uses within the time period specified, the General Surrogate Value Issues requiring an electron microscope. We administering authority may extend the Comment 12: Surrogate Value for Sulfuric know of no electron microscope, or any 120-day period to issue its final results Acid other instrument suited to these to up to 180 days. purposes, which was being We have determined that it is not Mandatory Respondent Specific Issues manufactured in the United States at the practicable to complete the final results RZBC time of order of each instrument. within the 120-day period. Specifically, Comment 13: Whether the Department Dated: December 8, 2011. after the issuance of the Preliminary Verified RZBC’s Corn Usage Rate Gregory W. Campbell, Results, complex issues arose Comment 14: Calcium Carbonate and concerning the short-term benchmark Sulfuric Acid Usage Rates Director, Subsidies Enforcement Office, Import Administration. interest rate. Therefore, to allow Comment 15: Adjustment of Financial Ratios sufficient time to collect and analyze the for Corn and Sulfuric Acid [FR Doc. 2011–32081 Filed 12–13–11; 8:45 am] additional information, and to conduct Yixing Union BILLING CODE 3510–DS–P the briefing process, the Department is Comment 16: Whether the Department fully extending the final results. Verified Yixing Union’s Corn Usage Rate DEPARTMENT OF COMMERCE Therefore, in accordance with section Comment 17: Whether the Department 751(a)(3)(A) of the Act, we are extending Should Deny Yixing Union’s Claimed By- International Trade Administration the time period for issuing the final Product Offset for Mycelium or, At a results of the review by 60 days. The Minimum, Reduce the Valuation of this [C–580–818] final results are now due no later than Offset Comment 18: Possible Unreported Inputs in Corrosion-Resistant Carbon Steel Flat February 27, 2012. the Chromatographic Process Products from the Republic of Korea: This notice is issued and published in accordance with section 751(a)(3)(A) of [FR Doc. 2011–32097 Filed 12–13–11; 8:45 am] Extension of Time Limit for Final the Act. BILLING CODE 3510–DS–P Results of Countervailing Duty Administrative Review Dated: December 7, 2011. Edward C. Yang, AGENCY: Import Administration, DEPARTMENT OF COMMERCE Acting Deputy Assistant Secretary for International Trade Administration, Antidumping and Countervailing Duty International Trade Administration Department of Commerce. Operations. FOR FURTHER INFORMATION CONTACT: University of Florida, et al.; Notice of [FR Doc. 2011–32092 Filed 12–13–11; 8:45 am] Gayle Longest, AD/CVD Operations, BILLING CODE 3510–DS–P Consolidated Decision on Applications Office 3, Import Administration, for Duty-Free Entry of Electron International Trade Administration, Microscope U.S. Department of Commerce, Room DEPARTMENT OF COMMERCE This is a decision consolidated 4014, 14th Street and Constitution Ave. pursuant to Section 6(c) of the NW., Washington, DC 20230, telephone: International Trade Administration Educational, Scientific, and Cultural (202) 482–3338. [C–533–821] Materials Importation Act of 1966 (Pub. SUPPLEMENTARY INFORMATION: L. 89–651, as amended by Pub. L. 106– Certain Hot-Rolled Carbon Steel Flat Background 36; 80 Stat. 897; 15 CFR part 301). Products From India: Amended Final Related records can be viewed between On August 31, 2011, the Department Results of Countervailing Duty 8:30 a.m. and 5 p.m. in Room 3720, U.S. of Commerce (‘‘the Department’’) Administrative Review Pursuant to Department of Commerce, 14th and published a notice of preliminary Court Decision Constitution Avenue NW., Washington, results of the administrative review of AGENCY: DC. the countervailing duty order on Import Administration, Docket Number: 11–065. Applicant: corrosion-resistant carbon steel flat International Trade Administration, University of Florida, Gainesville, FL products from the Republic of Korea Department of Commerce. 32610–0245. Instrument: Electron covering the period January 1, 2009, SUMMARY: On November 29, 2011, the Microscope. Manufacturer: FEI Co., through December 31, 2009. See Court of International Trade (CIT) Czech Republic. Intended Use: See Corrosion-Resistant Carbon Steel Flat issued an order in Tata Steel Limited v. notice at 76 FR 70410, November 14, Products From the Republic of Korea: United States, and United States Steel 2011. Preliminary Results of Countervailing Corporation and Nucor Corporation, Docket Number: 11–066. Applicant: Duty Administrative Review, 76 FR Court No. 10–00219, Order of Judgment University of Florida, Gainesville, FL 54209 (August 31, 2011) (‘‘Preliminary By Stipulation of the Parties (November 32610–0245. Instrument: Electron Results’’). The final results were 29, 2011) (Tata) pertaining to the Microscope. Manufacturer: FEI Co., originally due no later than December Department’s agreement with Tata Steel Czech Republic. Intended Use: See 29, 2011. Limited (Tata), setting the final notice at 76 FR 70410, November 14, countervailing rate for the period of Extension of Time Limit for Final 2011. review (POR) of January 1, 2008, Comments: None received. Decision: Results through December 31, 2008 (2008 POR) Approved. No instrument of equivalent Section 751(a)(3)(A) of the Tariff Act to 102.74 percent, and specifying the scientific value to the foreign of 1930, as amended (‘‘the Act’’), future countervailing duty cash deposit instrument, for such purposes as this requires the Department to make a final rate to 102.74 percent for that company. instrument is intended to be used, is determination within 120 days after the The Department is amending the final being manufactured in the United States date on which the preliminary results is results of the administrative review of at the time the instrument was ordered. published. Section 751(a)(3)(A) of the the countervailing duty order on certain

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77776 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

hot-rolled carbon steel flat products Assessment of Duties auxiliary aids should be directed to (HRCS) from India covering the 2008 In accordance with the CIT’s order, OEEI at (202) 482–5225 no less than one POR, to reflect the CIT’s order in Tata. CBP shall assess countervailing duties week prior to the meeting. SUPPLEMENTARY INFORMATION: The DATES: Effective Date: December 14, on all appropriate entries covered by meeting will take place from 9 a.m. to 2011. these amended final results. The Department intends to issue liquidation 3:30 p.m. This meeting is open to the FOR FURTHER INFORMATION CONTACT: instructions to CBP 15 days after public and time will be permitted for Gayle Longest, AD/CVD Operations, publication of these amended final public comment from 3:00–3:30 p.m. Office 3, Import Administration, results in the Federal Register. The Written comments concerning ETTAC International Trade Administration, Department will also instruct CBP to affairs are welcome any time before or U.S. Department of Commerce, 14th collect cash deposits of estimated after the meeting. Minutes will be Street and Constitution Avenue NW., countervailing duties on shipments of available within 30 days of this meeting. Washington, DC 20230; telephone (202) the subject merchandise produced by Topics to be considered: The agenda 482–3338. Tata, entered or withdrawn from for the January 26, 2012 ETTAC meeting warehouse, for consumption on or after will be set by the recent activities of the SUPPLEMENTARY INFORMATION: the date of publication of these group’s four subcommittees: Trade Promotion Subcommittee; Trade amended final results. Background Liberalization Subcommittee; On July 26, 2010, the Department Notification Standards, Regulations, and published its final results in the We are issuing and publishing these Certification Subcommittee; and countervailing duty administrative amended final results of administrative Innovation Subcommittee. Each group review of HRCS from India covering the review in accordance with sections will provide an overview of the issues POR of January 1, 2008, through 751(a)(1) and 777(i) of the Tariff Act of on which they have been gathering December 31, 2008. See Certain Hot- 1930, as amended. information since the previous quarterly Rolled Carbon Steel Flat Products from ETTAC meeting. The full ETTAC will Dated: December 8, 2011. discuss those issues further and begin to India: Final Results of Countervailing Ronald K. Lorentzen, Duty Administrative Review, 75 FR develop related policy Acting Assistant Secretary for Import 43448 (July 26, 2010) (Final Results), recommendations. Administration. Background: The ETTAC is mandated and accompanying Issues and Decision [FR Doc. 2011–32103 Filed 12–13–11; 8:45 am] by Public Law 103–392. It was created Memorandum. BILLING CODE 3510–DS–P to advise the U.S. government on Tata filed a lawsuit challenging environmental trade policies and certain aspects of the final results programs, and to help it to focus its concerning Tata. The Department DEPARTMENT OF COMMERCE resources on increasing the exports of entered into a settlement agreement the U.S. environmental industry. with Tata. International Trade Administration ETTAC operates as an advisory Pursuant to the Order Of Judgment By Environmental Technologies Trade committee to the Secretary of Commerce Stipulation Of The Parties, the CIT Advisory Committee Public Meeting and the Trade Promotion Coordinating directed the Department to: (1) Amend Committee (TPCC). ETTAC was the Final Results with respect to Tata, AGENCY: International Trade originally chartered in May of 1994. It setting the final countervailing duty rate Administration, DOC. was most recently re-chartered until for the 2008 POR to 102.74 percent, and ACTION: Notice of Federal advisory October 2012. specifying the future countervailing committee meeting. Edward A. O’Malley, duty cash deposit rate for Tata to be SUMMARY: This notice sets forth the Director, Office of Energy and Environmental 102.74 percent; (2) calculate the total Industries. amount of duties due on the three schedule and proposed agenda of a [FR Doc. 2011–32101 Filed 12–13–11; 8:45 am] entries covered by the litigation based meeting of the Environmental on 102.74 percent and issue instructions Technologies Trade Advisory BILLING CODE 3510–DR–P to U.S. Customs and Border Protection Committee (ETTAC). (CBP) requiring the total amount of DATES: The meeting is scheduled for DEPARTMENT OF COMMERCE duties due to be assessed on the Thursday, January 26, 2012, at 9 a.m. remaining two entries; and (3) issue Eastern Daylight Time (EDT). International Trade Administration instructions to CBP establishing the ADDRESSES: The meeting will be held in future cash deposit rate for Tata at the Room 3407 at the U.S. Department of Environmental Technologies Trade rate of 102.74 percent, which will Commerce, Herbert Clark Hoover Advisory Committee Public Meeting remain in place until it is changed by Building, 1401 Constitution Avenue AGENCY: International Trade the Department in a future NW., Washington, DC 20230. Administration, DOC. administrative review of the firm with FOR FURTHER INFORMATION CONTACT: Mr. ACTION: respect to the countervailing duty order Notice of Federal Advisory Todd DeLelle, Office of Energy & Committee Meeting. on HRCS from India. Environmental Industries (OEEI), Amended Final Results International Trade Administration, SUMMARY: This notice sets forth the Room 4053, 1401 Constitution Avenue schedule and proposed agenda of a In accordance with the CIT’s order, NW., Washington, DC 20230. (Phone: meeting of the Environmental the countervailing duty rate for Tata for (202) 482–4877; Fax: (202) 482–5665; Technologies Trade Advisory the period January 1, 2008, through email: [email protected]). This Committee (ETTAC). December 31, 2008, is 102.74 percent. In meeting is physically accessible to DATES: The teleconference meeting is addition, the cash deposit rate for Tata people with disabilities. Requests for scheduled for Thursday, December 29, is 102.74 percent. sign language interpretation or other 2011, at 2 p.m. Eastern Standard Time

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77777

(EST). Please register by 5 p.m. EST on later than 5 p.m. Eastern Standard Time 1994, the Government of the United Thursday, December 22, 2011 to listen on Thursday, December 22, 2011, to States, the Government of Canada, and in on the teleconference meeting. ensure transmission to the Committee the Government of Mexico established ADDRESSES: The meeting will take place prior to the meeting. Comments Rules of Procedure for Article 1904 via teleconference. For logistical received after that date will be Binational Panel Reviews (‘‘Rules’’). reasons, all participants are required to distributed to the members but may not These Rules were published in the register in advance by the date specified be considered at the meeting. Federal Register on February 23, 1994 (59 FR 8686). The panel review in this above. Please contact Mr. Todd DeLelle Edward A. O’Malley, at the contact information below to matter was requested and terminated Director, Office of Energy and Environmental pursuant to these Rules. register and obtain call-in information. Industries. FOR FURTHER INFORMATION CONTACT: Mr. [FR Doc. 2011–32098 Filed 12–13–11; 8:45 am] Dated: December 8, 2011. Todd DeLelle, Office of Energy & BILLING CODE 3510–DR–P Ellen Bohon, Environmental Industries (OEEI), United States Secretary, NAFTA Secretariat. International Trade Administration, [FR Doc. 2011–32011 Filed 12–13–11; 8:45 am] Room 4053, 1401 Constitution Avenue DEPARTMENT OF COMMERCE BILLING CODE 3510–GT–P NW., Washington, DC 20230. Phone: (202) 482–4877; Fax: (202) 482–5665; International Trade Administration email: [email protected]. DEPARTMENT OF COMMERCE North American Free Trade Agreement SUPPLEMENTARY INFORMATION: The (NAFTA), Article 1904; Binational Panel meeting will take place from 2 p.m. to International Trade Administration Reviews: Notice of Termination of 3 p.m. This meeting is open to the Panel Review North American Free Trade Agreement public. Written comments concerning (NAFTA), Article 1904; Binational Panel AGENCY: ETTAC affairs are welcome any time NAFTA Secretariat, United Reviews: Notice of Completion of before or after the meeting. Minutes will States Section, International Trade Panel Review be available within 30 days of this Administration, Department of meeting. Commerce. AGENCY: NAFTA Secretariat, United Topic to be considered: The agenda ACTION: On December 6, 2011, a Motion States Section, International Trade for the December 29, 2011 ETTAC to Terminate Panel Review of the U.S. Administration, Department of meeting has only the following item: International Trade Commission’s final Commerce. Deliberation on an ETTAC draft determination of Seamless Refined ACTION: Notice of Completion of Panel recommendation letter to the U.S. Copper Pipe and Tube from Mexico was Review of the U.S. Department of Secretary of Commerce regarding U.S. filed by the Government of Mexico Commerce’s final determination of Government’s efforts to liberalize (Secretariat File No. USA–MEX–2010– Seamless Refined Copper Pipe and Tube environmental trade within the Asia- 1904–02). from Mexico (Secretariat File No. USA– Pacific Economic Cooperation forum. MEX–2010–1904–03). Background: The ETTAC is mandated SUMMARY: Pursuant to the Motion to by Section 2313(c) of the Export Terminate Panel Review by a SUMMARY: Pursuant to Rule 71(3) of the Enhancement Act of 1988, as amended, participant and consented to by all the Rules of Procedure for Article 1904 15 U.S.C. 4728(c), to advise the participants, the panel review is Binational Panel Review, ‘‘A panel Environmental Trade Working Group of terminated as of December 6, 2011. A review is deemed to be terminated on the Trade Promotion Coordinating panel has not been appointed to this the day after the expiration of the Committee, through the Secretary of panel review. Pursuant to Rule 71(2) of limitation period established pursuant Commerce, on the development and the Rules of Procedure for Article 1904 to subrule 39(1) if no Complaint has administration of programs to expand Binational Panel Review, this panel been filed in a timely manner.’’ U.S. exports of environmental review is terminated. Pursuant to Rule 39(1), no Complaint technologies, goods, services, and FOR FURTHER INFORMATION CONTACT: was filed on January 21, 2011. No panel products. The ETTAC was originally Ellen Bohon, United States Secretary, was appointed to this panel review. The chartered in May of 1994. It was most NAFTA Secretariat, Suite 2061, 14th panel review terminated effective recently re-chartered until October and Constitution Avenue, Washington, January 22, 2011. 2012. DC 20230, (202) 482–5438. FOR FURTHER INFORMATION CONTACT: The teleconference will be accessible SUPPLEMENTARY INFORMATION: Chapter Ellen Bohon, United States Secretary, to people with disabilities. Please 19 of the North American Free Trade NAFTA Secretariat, Suite 2061, 14th specify any requests for reasonable Agreement (‘‘Agreement’’) established a and Constitution Avenue, Washington, accommodation when registering to mechanism to replace domestic judicial DC 20230, (202) 482–5438. participate in the teleconference. Last review of final determinations in SUPPLEMENTARY INFORMATION: Chapter minute requests will be accepted, but antidumping and countervailing duty 19 of the North American Free Trade may be impossible to fill. cases involving imports from a NAFTA Agreement (‘‘Agreement’’) established a No time will be available for oral country with review by independent mechanism to replace domestic judicial comments from members of the public binational panels. When a Request for review of final determinations in during this meeting. As noted above, Panel Review is filed, a panel is antidumping and countervailing duty any member of the public may submit established to act in place of national cases involving imports from a NAFTA pertinent written comments concerning courts to review expeditiously the final country with review by independent the Committee’s affairs at any time determination to determine whether it binational panels. When a Request for before or after the meeting. Comments conforms with the antidumping or Panel Review is filed, a panel is may be submitted to Mr. Todd DeLelle countervailing duty law of the country established to act in place of national at the contact information indicated that made the determination. courts to review expeditiously the final above. To be considered during the Under Article 1904 of the Agreement, determination to determine whether it meeting, comments must be received no which came into force on January 1, conforms with the antidumping or

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77778 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

countervailing duty law of the country Constitution Avenue NW., Washington, supply chain firms or their associations that made the determination. DC 20230; phone 202–482–1135; email: (including shippers and all modes of Under Article 1904 of the Agreement, [email protected]. freight transportation (trucking, rail, which came into force on January 1, FOR FURTHER INFORMATION CONTACT: maritime, and air)), stakeholders, 1994, the Government of the United Richard Boll, Office of Service community organizations, and others States, the Government of Canada, and Industries, Room CC307, U.S. directly affected by the supply chain, as the Government of Mexico established Department of Commerce, 1401 well as experts from academia. Rules of Procedure for Article 1904 Constitution Avenue NW., Washington, Membership shall reflect the diversity of Binational Panel Reviews (‘‘Rules’’). DC 20230; phone 202–482–1135; email: goods and services movement activities, These Rules were published in the [email protected]. including a variety of users that ship Federal Register on February 23, 1994 through the global supply chain, entities SUPPLEMENTARY INFORMATION: (59 FR 8686). The panel review in this that operate various parts of the supply matter was requested and terminated I. Background and Authority chain, and individual academic experts pursuant to these Rules. The Committee was established on in the field. Membership will also be Dated: December 8, 2011. November 21, 2011, for a two-year term diverse in terms of organization size, and geographic location. Appointments Ellen Bohon, under the discretionary authority of the will be made without regard to political United States Secretary, NAFTA Secretariat. Secretary, in response to an identified affiliation. In addition to the private [FR Doc. 2011–32013 Filed 12–13–11; 8:45 am] need for consensus advice from U.S. sector members, the Secretary of firms, associations, community BILLING CODE 3510–GT–P Transportation and the Administrator of organizations, and others directly the Environmental Protection Agency affected by the supply chain, as well as (EPA) (or their respective designees) DEPARTMENT OF COMMERCE experts from academia to the U.S. will serve on the Committee as ex government on the necessary elements officio, non-voting members. The International Trade Administration of a comprehensive, holistic national Secretary will consult with the freight infrastructure and a national Amendment to Notice of Establishment Department of Transportation, EPA, and of the Advisory Committee on Supply freight policy designed to support U.S. other agencies as appropriate in making Chain Competitiveness and export growth and competitiveness, appointments of private sector Solicitation of Nominations for foster national economic members. Membership competitiveness, and improve U.S. The Committee chair and vice chair or supply chain competitiveness in the vice chairs shall be selected from the AGENCY: International Trade domestic and global economy. The members of the Committee by the Administration, Department of Federal Advisory Committee Act (5 Assistant Secretary for Manufacturing Commerce. U.S.C. App.) governs the Committee and and Services after consulting with the ACTION: Amendment to notice of sets forth standards for the formation members. The International Trade establishment of the Advisory and use of advisory committees. Administration may authorize Committee on Supply Chain The Committee shall provide detailed subcommittees as needed, subject to the Competitiveness and solicitation of policy and technical advice, provisions of FACA, the FACA nominations for membership. information, and recommendations to implementing regulations, and the Secretary regarding: applicable Department of Commerce SUMMARY: The Under Secretary of • National, state, or local factors that guidance. Subcommittees must report to Commerce for International Trade inhibit the efficient domestic and the Committee and must not provide announced in the November 3, 2011, international movement of goods from advice or work products directly to the Federal Register the establishment of point of origin to destination, and the Secretary. The Assistant Secretary for the Advisory Committee on Supply competitiveness of domestic and Manufacturing and Services shall Chain Competitiveness (the Committee) international supply chains; appoint a Designated Federal Officer by the Secretary of Commerce and the • Infrastructure capacity, inter- and (DFO), as well as a Secondary DFO, solicitation of nominations for cross-modal connectivity, investment, from among the employees of the membership on the Committee (see 76 regulatory, and intra- or inter- Department of Commerce. The DFO or FR 68159). This amendment clarifies the governmental coordination factors that Secondary DFO will be present at all scope of the Committee’s work and the affect supply chain competitiveness, meetings and will approve or call all of nominations being sought for the goods movement, and sustainability; the advisory committee meetings and Committee, and extends the deadline for • Emerging trends in goods the meetings of any subcommittees; nominations. movement that affect supply chain prepare and approve all meeting The Committee shall advise the competitiveness; and agendas; adjourn any meeting when the Secretary on the necessary elements of • Metrics that can be used to quantify DFO or Secondary DFO; and chair a comprehensive, holistic national supply chain performance. meetings when directed to do so by the freight infrastructure and a national II. Structure, Membership, and Assistant Secretary for Manufacturing freight policy designed to support U.S. and Services. export growth and competitiveness, Operation foster national economic The Committee shall consist of a Nominations competitiveness, and improve U.S. maximum of 40 private sector members The Secretary of Commerce invites supply chain competitiveness in the appointed by the Secretary in nominations to the Committee for the domestic and global economy. accordance with applicable Department charter term beginning November 21, DATES: Nominations for members must of Commerce guidance and based on 2011, for appointments for a two-year be received on or before January 6, 2012. their ability to carry out the objectives term concurrent with the charter term. ADDRESSES: Richard Boll, Office of of the Committee. These members shall Members will be selected, in accordance Service Industries, Room CC307, U.S. represent a balanced and broad range of with applicable Department of Department of Commerce, 1401 interests, including representatives from Commerce guidelines, based upon their

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77779

ability to advise the Secretary of continue to serve as a Committee Dated: December 8, 2011. Commerce on the necessary elements of member if the applicant becomes a David Long, a comprehensive, holistic national federally-registered lobbyist; and Director, Office of Service Industries. freight infrastructure and a national In addition to the above requirements [FR Doc. 2011–32096 Filed 12–13–11; 8:45 am] freight policy designed to support U.S. for all nominations, nominations for BILLING CODE P export growth and competitiveness, representatives from supply chain firms foster national economic or their associations, stakeholders, competitiveness, and improve U.S. community organizations, and others DEPARTMENT OF COMMERCE supply chain competitiveness in the directly affected by the supply chain, domestic and global economy. Members should also provide the following National Oceanic and Atmospheric shall represent a balanced and broad information: Administration range of interests, including (1) A sponsor letter on the firm’s, representatives from supply chain firms association’s, community organization’s Availability of Seats for the or their associations (including shippers or other entity’s letterhead containing a Northwestern Hawaiian Islands Coral and all modes of freight transportation brief description why the nominee Reef Ecosystem Reserve Advisory (trucking, rail, maritime, and air)), should be considered for membership; Council stakeholders, community organizations, (2) Short biography of nominee AGENCY: Office of National Marine and others directly affected by the including credentials; and Sanctuaries (ONMS), National Ocean supply chain as well as experts from (3) Brief description of the firm, Service (NOS), National Oceanic and academia. The membership should association, community organization, or Atmospheric Administration (NOAA), reflect the general composition of the other entity to be represented and its Department of Commerce (DOC). U.S. supply chain industry. Other than activities and size (number of the experts from academia, all members ACTION: Notice and request for employees or members and annual applications. shall serve in a representative capacity, sales, if applicable); expressing their views and interests of (4) An affirmative statement that the SUMMARY: The ONMS is seeking a U.S. entity or organization, as well as applicant meets all Committee applications for the following vacant its particular sector. Members serving in eligibility requirements for seats on the Northwestern Hawaiian such a representative capacity are not representative members, including that Islands Coral Reef Ecosystem Reserve Special Government Employees. The the applicant represents a U.S. company Advisory Council: Native Hawaiian members from academia serve as or U.S. organization. Representative, Ocean Related Tourism experts and therefore are Special a. For purposes of Committee Representative, Conservation Alternate, Government Employees (SGEs) and eligibility, a U.S. company is at least 51 Native Hawaiian (Elder) Alternate, and, shall be subject to the ethical standards percent owned by U.S. persons. two Native Hawaiian Alternates. applicable to SGEs. b. For purposes of Committee Each private sector member of the Applicants are chosen based upon their eligibility, a U.S. organization is Committee must be a U.S. citizen, not a particular expertise and experience in controlled by U.S. persons, as federally-registered lobbyist, and not relation to the seat for which they are determined based on its board of registered as a foreign agent under the applying; community and professional directors (or comparable governing Foreign Agents Registration Act. All affiliations; and philosophy regarding body), membership, and funding appointments are made without regard the protection and management of sources, as applicable. to political affiliation. Self-nominations marine and cultural resources. In addition to the above requirements will be accepted. Members of the Applicants, who are chosen as for all nominations, nominations for Committee will not be compensated for members, should expect to serve 2 year experts from academia should also their services or reimbursed for their terms, pursuant to the council’s charter, provide the following information: travel expenses. The Committee shall or until a Monument Alliance is formed meet as often as necessary as (1) A description of the nominee’s in compliance with the Federal determined by the DFO, but not less area(s) of expertise; Advisory Committee Act (FACA). than once per year. (2) A concise Curriculum Vitae (CV) DATES: Applications are due by January Members shall serve at the pleasure of or resume that covers education, 31, 2012. experience, and relevant publications the Secretary from the date of ADDRESSES: Application kits may be and summarizes how this expertise appointment to the Committee to the obtained from Wesley Byers, Reserve addresses supply chain date on which the Committee’s charter Advisory Council Coordinator, Office of competitiveness; and terminates. National Marine Sanctuaries, Pacific All nominations to become a member (3) An affirmative statement that the Island Region, 6600 Kalaniana’ole Hwy, of the Committee should provide the applicant meets all Committee #300, Honolulu, HI 96825, and at the following information: eligibility requirements. following link: http:// (1) Name, title, and relevant contact Please do not send firm, association, www.papahanaumokuakea.gov. information (including phone, fax, and or community organization brochures. Completed applications should be sent email address) of the individual Nominations may be emailed to: to the same address. requesting consideration; [email protected] or faxed to the FOR FURTHER INFORMATION CONTACT: (2) An affirmative statement that the attention of Richard Boll at 202–482– Wesley Byers, Reserve Advisory Council applicant is not required to register as 2669, or mailed to Richard Boll, Office Coordinator, Office of National Marine a foreign agent under the Foreign Agents of Service Industries, Room CC307, U.S. Sanctuaries, Pacific Island Region, 6600 Registration Act of 1938; Department of Commerce, 1401 (3) An affirmative statement that the Constitution Avenue NW., Washington, Kalaniana’ole Hwy, #300, Honolulu, HI applicant is not a federally-registered DC 20230, and must be received before 96825. Phone: (808) 694–3920, lobbyist, and that the applicant January 6, 2012. Nominees selected for [email protected]. understands that if appointed, the appointment to the Committee will be SUPPLEMENTARY INFORMATION: The NWHI applicant will not be allowed to notified. Coral Reef Ecosystem Reserve is a

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77780 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

marine protected area designed to representatives of the following are chosen as Student members should conserve and protect the coral reef constituencies: Conservation (2), expect to serve 2-year terms, pursuant to ecosystem and related natural and Citizen-At-Large, Ocean-Related the council’s Charter. cultural resources of the area. The Tourism, Recreational Fishing, Research DATES: Applications are due by January NWHI Reserve was established by (3), Commercial Fishing, Education, 30, 2012. State of Hawai’i and Native Hawaiian Executive Order 13178 (12/00) and ADDRESSES: Application kits may be (3). The government non-voting seats Executive Order 13196 (1/01) pursuant obtained from Emily Gaskin, Fagatele are represented by the following to the National Marine Sanctuaries Bay National Marine Sanctuary, agencies: Department of Defense, Amendments Act of 2000 (Pub. L. 106– American Samoa Department of Department of the Interior., Department 513). The Reserve was incorporated into Commerce Office, Executive Office of State, Marine Mammal Commission, Papahanaumokuakea Marine National Building, Utulei. Completed NOAA’s Hawaiian Islands Humpback Monument when the Monument was applications should be returned to the Whale National Marine Sanctuary, established in 2006 and is now also part same address. of the Papahanaumokuakea Marine NOAA’s National Marine Fisheries National Monument World Heritage site Service, National Science Foundation, FOR FURTHER INFORMATION CONTACT: established by UNESCO in July, 2010. U.S. Coast Guard, Western Pacific Emily Gaskin at (684) 633–5155 ext. 271 The Reserve encompasses an area of Regional Fishery Management Council, or [email protected]. the marine waters and submerged lands and NOAA’s Papahanaumokuakea SUPPLEMENTARY INFORMATION: The of the Northwestern Hawaiian Islands, Marine National Monument. Fagatele Bay National Marine Sanctuary extending approximately 1200 nautical Authority: 16 U.S.C. 1431, et seq. Advisory Council was established in miles long and 100 nautical miles wide. 1986 pursuant to Federal law to ensure (Federal Domestic Assistance Catalog continued public participation in the The Reserve is managed by the Number 11.429 Marine Sanctuary Program) Secretary of Commerce pursuant to the management of the sanctuary. The National Marine Sanctuaries Act and Dated: December 7, 2011. Sanctuary Advisory Council brings the Executive Orders. The management Daniel Basta, members of a diverse community principles and implementation strategy Director, Office of National Marine together to provide advice to the and requirements for the Reserve are Sanctuaries, National Ocean Service, Sanctuary Manager (delegated from the National Oceanic and Atmospheric Secretary of Commerce and the Under found in the enabling Executive Orders, Administration. which are part of the application kit, Secretary for Oceans and Atmosphere) [FR Doc. 2011–31915 Filed 12–13–11; 8:45 am] and can be found on the Monument’s on the management and protection of Web site http:// BILLING CODE 3510–NK–M the Sanctuary, or to assist the National www.papahanaumokuakea.gov. Marine Sanctuary Program in guiding a proposed site through the designation or In designating the Reserve, the DEPARTMENT OF COMMERCE Secretary of Commerce was directed to the periodic management plan review establish a Coral Reef Ecosystem National Oceanic and Atmospheric process. Reserve Advisory Council, pursuant to Administration Authority: 16 U.S.C. 1431, et seq. section 315 of the National Marine (Federal Domestic Assistance Catalog Sanctuaries Act, to provide advice and Availability of Seats for the Fagatele Number 11.429 Marine Sanctuary Program) Bay National Marine Sanctuary recommendations on the management of Dated: December 2, 2011. the natural and cultural resources Advisory Council Daniel Basta, within the Reserve. AGENCY: Office of National Marine The Office of National Marine Director, Office of National Marine Sanctuaries (ONMS), National Ocean Sanctuaries, National Ocean Service, Sanctuaries has established the Reserve Service (NOS), National Oceanic and National Oceanic and Atmospheric Advisory Council and is now accepting Atmospheric Administration (NOAA), Administration. applications from interested individuals Department of Commerce (DOC). [FR Doc. 2011–31913 Filed 12–13–11; 8:45 am] for Representatives and/or Alternates for ACTION: BILLING CODE 3510–NK–M each of the following citizen/constituent Notice and request for positions on the Council: applications. 1. One (1) Native Hawaiian SUMMARY: The ONMS is seeking DEPARTMENT OF COMMERCE Representatives (Native Hawaiian). applications for the following vacant 2. One (1) Ocean-Related Tourism seats on the Fagatele Bay National National Oceanic and Atmospheric Representative (Ocean-Related Marine Sanctuary Advisory Council: Administration Tourism). Community-at-Large: West Side of 3. One (1) Native Hawaiian (Elder) Tutuila, Community-at-Large: East Side RIN 0648–XA867 Alternate (Native Hawaiian) of Tutuila, and Student (including Endangered Species; File No. 10022 3. Two (2) Native Hawaiian Alternates youth). Applicants are chosen based (Native Hawaiian). upon their particular expertise and AGENCY: National Marine Fisheries 4. One (1) Conservation Alternate experience in relation to the seat for Service (NMFS), National Oceanic and (Conservation). which they are applying; community Atmospheric Administration (NOAA), Current Reserve Council and professional affiliations; philosophy Commerce. Representatives and Alternates may re- regarding the protection and ACTION: Notice; issuance of permit apply for these vacant seats. management of marine resources; and modification. The Council consists of 25 members, possibly the length of residence in the 15 of which are non-government voting area affected by the sanctuary. SUMMARY: Notice is hereby given that members (the State of Hawai’i Applicants who are chosen as Raymond Carthy, University of Florida, representative is a voting member) and Community-at-Large members should Florida Cooperative Fish and Wildlife 10 of which are government non-voting expect to serve 3-year terms, pursuant to Research Unit, 117 Newins-Ziegler Hall, members. The voting members are the council’s Charter. Applicants who P.O. Box 110450, Gainesville, FL 32611,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77781

has been issued a modification to valid until the permit expires on April • By email to scientific research Permit No. 10022–01. 30, 2013. [email protected] (include ADDRESSES: The modification and Issuance of this modification, as the File No. 15802 in the subject line of related documents are available for required by the ESA was based on a the email), finding that such permit (1) Was applied review upon written request or by • By facsimile to (301) 713–0376, or appointment in the following offices: for in good faith, (2) will not operate to • Permits and Conservation Division, the disadvantage of such endangered or At the address listed above. Office of Protected Resources, NMFS, threatened species, and (3) is consistent Those individuals requesting a public 1315 East-West Highway, Room 13705, with the purposes and policies set forth hearing should submit a written request Silver Spring, MD 20910; phone (301) in section 2 of the ESA. to the Chief, Permits and Conservation 427–8401; fax (301) 713–0376; and Dated: December 9, 2011. Division at the address listed above. The Southeast Region, NMFS, 263 13th P. Michael Payne, request should set forth the specific Ave South, St. Petersburg, FL 33701; reasons why a hearing on this phone (727) 824–5312; fax (727) 824– Chief, Permits and Conservation Division, Office of Protected Resources, National application would be appropriate. 5309. Marine Fisheries Service. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: [FR Doc. 2011–32091 Filed 12–13–11; 8:45 am] Jennifer Skidmore or Colette Cairns, Colette Cairns or Amy Hapeman, (301) BILLING CODE 3510–22–P 427–8401. (301) 427–8401. SUPPLEMENTARY INFORMATION: On SUPPLEMENTARY INFORMATION: The December 17, 2010, notice was DEPARTMENT OF COMMERCE subject permit is requested under the published in the Federal Register (75 authority of the Endangered Species Act National Oceanic and Atmospheric FR 78974) that a modification of Permit of 1973, as amended (ESA; 16 U.S.C. Administration No. 10022–01, issued May 12, 2010 (75 1531 et seq.) and the regulations FR 26715), had been requested by the RIN 0648–XA603 governing the taking, importing, and above-named individual. The requested exporting of endangered and threatened modification has been granted under the Endangered Species; File No. 15802 species (50 CFR 222–226). authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. AGENCY: National Marine Fisheries On July 28, 2011 (76 FR 45230), 1531 et seq.) and the regulations Service (NMFS), National Oceanic and notice was published that a permit had governing the taking, importing, and Atmospheric Administration (NOAA), been requested by the applicant for exporting of endangered and threatened Commerce. scientific research and monitoring of species (50 CFR 222–226). ACTION: Notice; requested change to smalltooth sawfish (Pristis pectinata) Permit 10022–01 authorizes the permit application. populations of Florida, primarily in the permit holder to conduct research off greater Charlotte Harbor estuarine SUMMARY: Notice is hereby given that the northwest coast of Florida. system. The applicant is requesting to Florida Fish and Wildlife Conservation Researchers may capture loggerhead take up to 205 sawfish by gillnet, seine, Commission, 100 Eighth Avenue SE, St. (Caretta caretta), green (Chelonia or longline. These animals would be mydas), and Kemp’s ridley Petersburg, FL 33701 [Gregg Poulakis, Responsible Party], has requested a handled, measured, passive integrated (Lepidochelys kempii) sea turtles by transponder, roto, and external satellite strike-net or set-net. Animals may be change to the application for a permit (File No. 15802). tagged, tissue, blood, and biopsy weighed, measured, photographed, skin sampled, examined by ultrasound, and DATES: Written, telefaxed, or email biopsied, flipper and passive integrated released. Receipt of sawfish samples transponder (PIT) tagged, and released. comments must be received on or before January 13, 2012 acquired through strandings, law Researchers also are authorized to enforcement confiscations, or other perform a subset of activities on sea ADDRESSES: The application and related permitted researchers is also requested. turtles legally captured by relocation documents are available for review by The applicant also seeks authorization trawlers. A subset of sea turtles may selecting ‘‘Records Open for Public to capture green (Chelonia mydas), have transmitters attached to assess Comment’’ from the Features box on the habitat use and study whether Applications and Permits for Protected hawksbill (Eretmochelys imbricata), relocation distances for sea turtles Species (APPS) home page, https:// Kemp’s ridley (Lepidochelys kempii), captured by relocation trawlers are apps.nmfs.noaa.gov, and then selecting leatherback (Dermochelys coriacea), and appropriate. File No. 15802 from the list of available loggerhead (Caretta caretta) sea turtles. The modification authorizes: (1) An applications. Sea turtles would be measured, increase in the number of sea turtles These documents are also available photographed, and released. The permit that may be taken annually; (2) satellite upon written request or by appointment is requested for a duration of 5 years. tagging for captured loggerhead and in the following offices: Dated: December 9, 2011. Kemp’s ridleys; and (3) epibiota Permits and Conservation Division, P. Michael Payne, removal, blood sampling, and carapace Office of Protected Resources, NMFS, swabbing for a subset of captured 1315 East-West Highway, Room 13705, Chief, Permits and Conservation Division, animals. A subset of the green sea Silver Spring, MD 20910; phone (301) Office of Protected Resources, National Marine Fisheries Service. turtles may also be captured by hand/ 427–8401; fax (301) 713–0376; and dip net, flipper and PIT tagged, Southeast Region, NMFS, 263 13th [FR Doc. 2011–32089 Filed 12–13–11; 8:45 am] measured, weighed, photographed, and Avenue South, Saint Petersburg, Florida BILLING CODE 3510–22–P temporarily carapace marked. This work 33701; phone (727) 824–5312; fax (727) will assess changes in sea turtle 824–5309. abundance, physical characteristics, and Written comments on this application habitat use in the area relative to should be submitted to the Chief, historical data. The modification is Permits and Conservation Division

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00016 Fmt 4703 Sfmt 9990 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77782 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

DEPARTMENT OF COMMERCE An environmental assessment (EA) harassment only, 22 species of marine analyzing the effects of the permitted mammals during the specified activity. National Oceanic and Atmospheric activities on the human environment DATES: Administration was prepared in compliance with the Comments and information must be received no later than January 13, RIN 0648–XZ66 National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Based on 2012. Marine Mammals; File No. 781–1824 the analyses in the EA, NMFS ADDRESSES: Comments on the determined that issuance of the permit application should be addressed to P. AGENCY: National Marine Fisheries would not significantly impact the Michael Payne, Chief, Permits and Service (NMFS), National Oceanic and quality of the human environment and Conservation Division, Office of Atmospheric Administration (NOAA), that preparation of an environmental Protected Resources, National Marine Commerce. impact statement was not required. That Fisheries Service, 1315 East-West ACTION: Notice; issuance of permit determination is documented in a Highway, Silver Spring, MD 20910. The amendment. Finding of No Significant Impact mailbox address for providing email (FONSI), signed on November 22, 2011. comments is [email protected]. SUMMARY: Notice is hereby given that a As required by the ESA, issuance of NMFS is not responsible for email major amendment to Permit No. 781– this permit was based on a finding that comments sent to addresses other than 1824–01 has been issued to the such permit: (1) Was applied for in good the one provided here. Comments sent Northwest Fisheries Science Center faith; (2) will not operate to the via email, including all attachments, (NWFSC, Dr. M. Bradley Hanson, disadvantage of such endangered must not exceed a 10-megabyte file size. Principal Investigator), 2725 Montlake species; and (3) is consistent with the Blvd. East, Seattle, Washington 98112– purposes and policies set forth in All comments received are a part of 2097. section 2 of the ESA. the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/ ADDRESSES: The permit amendment and Dated: December 8, 2011. permits/incidental.htm#applications related documents are available for P. Michael Payne, review upon written request or by without change. All Personal Identifying Chief, Permits and Conservation Division, Information (for example, name, appointment in the following offices: Office of Protected Resources, National Permits and Conservation Division, Marine Fisheries Service. address, etc.) voluntarily submitted by the commenter may be publicly Office of Protected Resources, NMFS, [FR Doc. 2011–32084 Filed 12–13–11; 8:45 am] accessible. Do not submit confidential 1315 East-West Highway, Room 13705, BILLING CODE 3510–22–P Silver Spring, MD 20910; phone (301) business information or otherwise 427–8401; fax (301) 713–0376; and sensitive or protected information. Northwest Region, NMFS, 7600 Sand DEPARTMENT OF COMMERCE A copy of the application containing Point Way NE., BIN C15700, Bldg. 1, a list of the references used in this Seattle, WA 98115–0700; phone (206) National Oceanic and Atmospheric document may be obtained by writing to 526–6150; fax (206) 526–6426. Administration the above address, telephoning the FOR FURTHER INFORMATION CONTACT: RIN 0648–XT57 contact listed here (see FOR FURTHER Laura Morse or Amy Sloan, (301) 427– INFORMATION CONTACT) or visiting the 8401. Takes of Marine Mammals Incidental to Internet at: http://www.nmfs.noaa.gov/ SUPPLEMENTARY INFORMATION: On Specified Activities; Marine pr/permits/incidental.htm#applications. November 9, 2010, notice was published Geophysical Survey in the The National Science Foundation in the Federal Register (75 FR 68757) Commonwealth of the Northern (NSF), which is providing funding to L– that a request for an amendment to Mariana Islands, February to March DEO to conduct the survey, has Permit No. 781–1824–01 to conduct 2012 prepared a draft ‘‘Environmental research on cetacean species in the AGENCY: National Marine Fisheries Assessment Pursuant to the National eastern North Pacific off the coast of Service (NMFS), National Oceanic and Environmental Policy Act, 42 U.S.C. Washington, Oregon, and California for Atmospheric Administration (NOAA), 4321 et seq. and Executive Order 12114 scientific research had been submitted Commerce. Marine Seismic Survey in the by the above-named applicant. The ACTION: Notice; proposed Incidental Commonwealth of the Northern Mariana requested permit amendment has been Harassment Authorization; request for Islands, 2012’’ (EA). NSF’s EA issued under the authority of the Marine comments. incorporates an ‘‘Environmental Mammal Protection Act of 1972, as Assessment of a Marine Geophysical amended (16 U.S.C. 1361 et seq.), the SUMMARY: NMFS has received an Survey by the R/V Marcus G. Langseth regulations governing the taking and application from the Lamont-Doherty in the Commonwealth of the Northern importing of marine mammals (50 CFR Earth Observatory of Columbia Mariana Islands, February-March 2012,’’ part 216), the Endangered Species Act of University (L–DEO) for an Incidental prepared by LGL Ltd., Environmental 1973, as amended (ESA; 16 U.S.C. 1531 Harassment Authorization (IHA) to take Research Associates (LGL), on behalf of et seq.), and the regulations governing marine mammals, by harassment, NSF and L–DEO, which is also available the taking, importing, and exporting of incidental to conducting a marine at the same Internet address. Documents endangered and threatened species geophysical (seismic) survey in the cited in this notice may be viewed, by (50 CFR parts 222–226). Commonwealth of the Northern Mariana appointment, during regular business The permit amendment authorizes an Islands (CNMI), a commonwealth in a hours, at the aforementioned address. increase in the number of Southern political union with the U.S., February FOR FURTHER INFORMATION CONTACT: Resident killer whales (SRKW, Orcinus to March, 2012. Pursuant to the Marine Howard Goldstein or Jolie Harrison, orca) suction cup tagged (from 10 to 20 Mammal Protection Act (MMPA), NMFS Office of Protected Resources, NMFS, animals annually) and allows satellite is requesting comments on its proposal (301) 427–8401. tagging of six SRKW with dart tags to issue an IHA to L–DEO to annually. incidentally harass, by Level B SUPPLEMENTARY INFORMATION:

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77783

Background Summary of Request Description of the Specified Activity Section 101(a)(5)(D) of the MMPA (16 On December 16, 2009, NMFS L–DEO’s proposed seismic survey in U.S.C. 1371 (a)(5)(D)) directs the received an application from the L–DEO the CNMI will take place during Secretary of Commerce (Secretary) to requesting NMFS to issue an IHA for the February to March, 2012, in the area ° ° ° ° authorize, upon request, the incidental, take, by Level B harassment only, of 16.5 to 19 North, 146.5 to 150.5 East but not intentional, taking of small small numbers of marine mammals (see Figure 1 of the IHA application). numbers of marine mammals of a incidental to conducting a marine The proposed seismic survey will take species or population stock, by United seismic survey in the CNMI during June place in water depths ranging from States citizens who engage in a specified to July, 2010. NMFS published a notice 2,000 m to greater than 8,000 m and activity (other than commercial fishing) in the Federal Register (75 FR 8652) consists of approximately 2,800 within a specified geographical region if with preliminary determinations and a kilometers (km) 1,511.9 nautical miles certain findings are made and, if the proposed IHA. Ship maintenance issues [nmi]) of transect lines (including turns) taking is limited to harassment, a notice resulted in schedule challenges that in the study area. The seismic survey of a proposed authorization is provided forced the survey into an inclement will be conducted in the U.S. Exclusive to the public for review. weather period and after further Economic Zone (EEZ) and in Authorization for the incidental consideration by the principal International Waters. The closest that taking of small numbers of marine investigator and ship operator, the the vessel will approach to any island mammals shall be granted if NMFS proposed seismic survey was postponed is approximately 50 km (27 nmi) from finds that the taking will have a until a more suitable operational period Alamagan. The project is scheduled to negligible impact on the species or could be achieved. occur from approximately February 2 to March 2, 2012. Some minor deviation stock(s), and will not have an NMFS received a revised application from these dates is possible, depending unmitigable adverse impact on the on September 29, 2011, from L–DEO for on logistics and weather. The proposed availability of the species or stock(s) for the taking by harassment, of marine seismic survey will be conducted over subsistence uses (where relevant). The mammals, incidental to conducting a the Mariana outer forearc, the trench, authorization must set forth the marine seismic survey in the CNMI and the outer rise of the subducting and permissible methods of taking, other within the U.S. Exclusive Economic bending Pacific plate. The objective is to means of effecting the least practicable Zone (EEZ) in depths from understand the water cycle within adverse impact on the species or stock approximately 2,000 meters (m) (6,561.7 subduction-zone systems. Subduction and its habitat, and requirements feet [ft]) to greater than 8,000 m systems are where the basic building pertaining to the mitigation, monitoring (26,246.7 ft). L–DEO plans to conduct blocks of continental crust are made and and reporting of such takings. NMFS the proposed survey from where Earth’s great earthquakes occur. has defined ‘‘negligible impact’’ in 50 approximately February 2 to March 21, Little is known about either of these CFR 216.103 as ‘‘* * * an impact 2012. resulting from the specified activity that processes, but water cycling through the L–DEO plans to use one source vessel, system is thought to be the primary cannot be reasonably expected to, and is the R/V Marcus G. Langseth (Langseth) not reasonably likely to, adversely affect controlling factor in both arc-crust and a seismic airgun array to collect generation and megathrust seismicity. the species or stock through effects on seismic data over the Mariana outer annual rates of recruitment or survival.’’ The survey will involve one source forearc, the trench and the outer rise of vessel, the Langseth. The Langseth will Section 101(a)(5)(D) of the MMPA the subducting and bending Pacific established an expedited process by deploy an array of 36 airguns as an plate. In addition to the proposed energy source at a tow depth of 9 m which citizens of the United States can operations of the seismic airgun array, apply for an authorization to (29.5 ft). The acoustic receiving system L–DEO intends to operate a multibeam will consist of a single 6 km (3.2 nmi) incidentally take small numbers of echosounder (MBES) and a sub-bottom marine mammals by harassment. long hydrophone streamer and 85 ocean profiler (SBP) continuously throughout bottom seismometers (OBSs). As the Section 101(a)(5)(D) of the MMPA the survey. establishes a 45-day time limit for airgun is towed along the survey lines, Acoustic stimuli (i.e., increased NMFS’s review of an application the hydrophone streamer will receive underwater sound) generated during the followed by a 30-day public notice and the returning acoustic signals and operation of the seismic airgun array comment period on any proposed transfer the data to the on-board may have the potential to cause a short- authorizations for the incidental processing system. The OBSs record the term behavioral disturbance for marine harassment of small numbers of marine returning acoustic signals internally for mammals in the survey area. This is the mammals. Within 45 days of the close later analysis. The OBSs to be used for principal means of marine mammal of the public comment period, NMFS the 2012 program will be deployed and taking associated with these activities must either issue or deny the most (approximately 60) will be and L–DEO has requested an authorization. retrieved during the cruise, whereas 25 authorization to take 22 species of will be left in place for one year. Except with respect to certain marine mammals by Level B The planned seismic survey (e.g., activities not pertinent here, the MMPA harassment. Take is not expected to equipment testing, startup, line changes, defines ‘‘harassment’’ as: result from the use of the MBES or SBP, repeat coverage of any areas, and any act of pursuit, torment, or annoyance for reasons discussed in this notice; nor equipment recovery) will consist of which (i) has the potential to injure a marine is take expected to result from collision approximately 2,800 km of transect mammal or marine mammal stock in the wild with the vessel because it is a single lines (including turns) in the CNMI [Level A harassment]; or (ii) has the potential vessel moving at a relatively slow speed survey area (see Figure 1 of the IHA to disturb a marine mammal or marine mammal stock in the wild by causing during seismic acquisition within the application). This includes one line and disruption of behavioral patterns, including, survey, for a relatively short period of parts of three lines shown in Figure 1 of but not limited to, migration, breathing, time (approximately 46 days). It is likely the IHA application that are shot twice nursing, breeding, feeding, or sheltering that any marine mammal would be able at different shot intervals: The [Level B harassment]. to avoid the vessel. westernmost north-south line and the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77784 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

western portions of the east-west lines. stationed on the observation platform, pressure is the sound force per unit In addition to the operations of the the PSVO’s eye level will be area, and is usually measured in airgun array, a Kongsberg EM 122 MBES approximately 21.5 m (71 ft) above sea micropascals (mPa), where 1 pascal (Pa) and Knudsen Chirp 3260 SBP will also level providing the PSVO an is the pressure resulting from a force of be operated from the Langseth unobstructed view around the entire one newton exerted over an area of one continuously throughout the cruise. vessel. square meter. Sound pressure level There will be additional seismic (SPL) is expressed as the ratio of a operations associated with equipment Acoustic Source Specifications measured sound pressure and a testing, ramp-up, and possible line Seismic Airguns reference level. The commonly used reference pressure level in underwater changes or repeat coverage of any areas The Langseth will deploy a 36 airgun where initial data quality is sub- acoustics is 1 mPa, and the units for array, with a total volume of standard. In L–DEO’s calculations, 25% SPLs are dB re: 1 mPa. SPL (in decibels approximately 6,600 cubic inches (in3). has been added for those additional [dB]) = 20 log (pressure/reference The airgun array will consist of a operations. pressure). All planned seismic data acquisition mixture of Bolt 1500LL and Bolt SPL is an instantaneous measurement 1900LLX airguns ranging in size from 40 activities will be conducted by L–DEO, 3 and can be expressed as the peak, the the Langseth’s operator, with on-board to 360 in , with a firing pressure of peak-peak (p-p), or the root mean square assistance by the scientists who have 1,900 pounds per square inch (psi). The (rms). Root mean square, which is the proposed the study. The Principal airguns will be configured as four square root of the arithmetic average of Investigators are Drs. Doug Wiens identical linear arrays or ‘‘strings’’ (see the squared instantaneous pressure (Washington University) and Daniel Figure 2 of the application). Each string values, is typically used in discussions Lizarralde (Woods Hole Oceanographic will have 10 airguns, the first and last of the effects of sounds on vertebrates Institution [WHOI]). The vessel will be airguns in the strings are spaced 16 m and all references to SPL in this self-contained, and the crew will live (52 ft) apart. Of the 10 airguns, nine document refer to the root mean square aboard the vessel for the entire cruise. airguns in each string will be fired unless otherwise noted. SPL does not simultaneously, whereas the tenth is take the duration of a sound into Vessel Specifications kept in reserve as a spare, to be turned account. The Langseth, owned by the National on in case of failure of another airgun. Science Foundation, will tow the 36 The four airgun strings will be Characteristics of the Airgun Pulses airgun array, as well as the hydrophone distributed across an area of Airguns function by venting high- streamer, along predetermined lines. approximately 24 x 16 m (78.7 x 52.5 ft) pressure air into the water which creates The Langseth will also deploy and behind the Langseth and will be towed an air bubble. The pressure signature of retrieve the OBSs. When the Langseth is approximately 140 m (459.3 ft) behind an individual airgun consists of a sharp towing the airgun array and the the vessel. The shot interval will be 37.5 rise and then fall in pressure, followed hydrophone streamer, the turning rate of m or 150 m (123 or 492.1 ft) during the by several positive and negative the vessel is limited to five degrees per study. The shot interval will be pressure excursions caused by the minute. Thus, the maneuverability of relatively short, approximately 15 to 18 oscillation of the resulting air bubble. the vessel is limited during operations seconds (s), for the MCS surveying with The oscillation of the air bubble with the streamer. the hydrophone streamer (most of the transmits sounds downward through the The vessel has a length of 71.5 m (235 seismic operations), and relatively seafloor and the amount of sound ft); a beam of 17.0 m (56 ft); a maximum longer, 150 m (or approximately 58 to transmitted in the near horizontal draft of 5.9 m (19 ft); and a gross 73 s), when recording data on the OBSs. directions is reduced. However, the tonnage of 3,834. The Langseth was During firing, a brief (approximately airgun array also emits sounds that designed as a seismic research vessel 0.1 s) pulse sound is emitted; the travel horizontally toward non-target with a propulsion system designed to be airguns will be silent during the areas. as quiet as possible to avoid interference intervening periods. The dominant The nominal source levels of the with the seismic signals emanating from frequency components range from two airgun arrays used by L–DEO on the the airgun array. The ship is powered by to 188 Hertz (Hz). Langseth are 236 to 265 dB re 1 mPa two 3,550 horsepower (hp) Bergen BRG– The tow depth of the array will be (p-p) and the rms value for a given 6 diesel engines which drive two 9 m (29.5 ft) during the surveys. Because airgun pulse is typically 16 dB re 1 mPa propellers directly. Each propeller has the actual source is a distributed sound lower than the peak-to-peak value four blades and the shaft typically source (36 airguns) rather than a single (Greene, 1997; McCauley et al., 1998, rotates at 750 revolutions per minute. point source, the highest sound 2000a). However, the difference The vessel also has an 800 hp measurable at any location in the water between rms and peak or peak-to-peak bowthruster, which is not used during will be less than the nominal source values for a given pulse depends on the seismic acquisition. The Langseth’s level. In addition, the effective source frequency content and duration of the operation speed during seismic level for sound propagating in near- pulse, among other factors. acquisition is typically 7.4 to 9.3 km per horizontal directions will be Accordingly, L–DEO has predicted hour (hr) (km/hr) (4 to 5 knots [kts]). substantially lower than the nominal the received sound levels in relation to When not towing seismic survey gear, source level applicable to downward distance and direction from the 36 the Langseth typically cruises at 18.5 propagation because of the directional airgun array and the single Bolt 1900LL km/hr (10 kts). The Langseth has a range nature of the sound from the airgun 40 in3 airgun, which will be used during of 25,000 km (13,499 nmi) (the distance array. power-downs. A detailed description of the vessel can travel without refueling). L–DEO’s modeling for marine seismic The vessel also has an observation Metrics Used in This Document source arrays for protected species tower from which protected species This section includes a brief mitigation is provided in Appendix A of visual observers (PSVO) will watch for explanation of the sound measurements NSF’s EA. These are the nominal source marine mammals before and during the frequently used in the discussions of levels applicable to downward proposed airgun operations. When acoustic effects in this document. Sound propagation. The effective source levels

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77785

for horizontal propagation are lower mitigation, and to estimate take for Using the corrected measurements than those for downward propagation marine mammals in the CNMI. (airgun array) or model (single airgun), when the source consists of numerous Results of the GOM calibration study Table 1 (below) shows the distances at airguns spaced apart from one another. (Tolstoy et al., 2009) showed that radii which three rms sound levels are Appendix B(3) of NSF’s EA discusses around the airguns for various received expected to be received from the 36 the characteristics of the airgun pulses. levels varied with water depth. The airgun array and a single airgun. The NMFS refers the reviewers to the IHA propagation also varies with the airgun 180 and 190 dB re 1 mPa (rms) distances application and EA documents for array’s tow depth. The depth of the are the safety criteria for potential Level additional information. airgun array was different in the GOM A harassment as specified by NMFS calibration study (6 m [19.7 ft]) than in Predicted Sound Levels for the Airguns (2000) and are applicable to cetaceans the proposed survey (9 m); thus and pinnipeds, respectively. If marine To determine exclusion zones (EZs) correction factors have been applied to mammals are detected within or about for the airgun array to be used in the the distances reported by Tolstoy et al. to enter the appropriate EZ, the airguns CNMI, it would be prudent to use the (2009). The correction factors used were will be powered-down (or shut-down, if empirical values that resulted from the the ratios of the 160, 180, and 190 dB necessary) immediately. propagation measurements in the Gulf distances from the modeled results for of Mexico (GOM) (Tolstoy et al., 2009). the 6,600 in3 airgun array towed at 6 m Table 1 summarizes the measured or Tolstoy et al., (2009) reported results for vs. 9 m. For a single airgun, the tow predicted distances at which sound propagation measurements of pulses depth has minimal effect on the levels (160, 180, and 190 dB [rms]) are from the Langseth’s 36 airgun, 6,600 in3 maximum near-field output and the expected to be received from the 36 array in shallow-water (approximately shape of the frequency spectrum for the airgun array and a single airgun 50 m [164 ft]) and deep-water depths single airgun; thus, the predicted EZs operating in deep water depths. (approximately 1,600 m [5,249 ft]) in the are essentially the same at different tow Table 1. Measured (array) or predicted Gulf of Mexico (GOM) in 2007 and depths. The L–DEO model does not (single airgun) distances to which sound 2008. L–DEO has used these corrected allow for bottom interactions, and thus levels ≥ 190, 180, and 160 dB re: 1 mPa empirical values to determine exclusion is most directly applicable to deep (rms) could be received in various water zones (EZs) for the 36 airgun array and water. A detailed description of the depth categories during the proposed modeled measurements for the single modeling effort is provided in Appendix survey in the CNMI, February to March, airgun; to designate EZs for purposes of A of NSF’s EA. 2012.

Predicted RMS radii distances (m) Source and volume Tow depth Water depth (m) (m) 190 dB 180 dB 160 dB

Single Bolt airgun (40 in 3) ...... 9 Deep (> 1,000 ) ...... 12 40 385 4 Strings 36 airguns (6,600 in 3) ...... 9 Deep (> 1,000) ...... 400 940 3,850

OBS Description and Deployment (213.3 to 8,530.2 ft). The tether will fall with the Kongsberg EM 122 MBES and Approximately 85 OBSs will be to the seafloor when the OBS is a Knudsen 320B SBP. These sound deployed by the Langseth before the released. sources will be operated continuously survey, in water depths of 3,100 to 8,100 Two different types of OBSs may be from the Langseth throughout the m (10,170 to 26,574.8ft). There are three used during the 2012 program. The cruise. types of OBS deployments: WHOI ‘‘D2’’ OBS has a height of MBES (1) Approximately 20 broadband approximately 1 m (3.3 ft) and a OBSs located on the bottom in a wide maximum diameter of 50 cm (inches The Langseth will operate a two-dimensional (2D) array with a [19.7 in]). The anchor is made of hot- Kongsberg EM 122 MBES concurrently spacing of no more than 100 km rolled steel and weighs 23 kilograms during airgun operations to map (54nmi); (kg; pounds [50.7 lb]). The anchor characteristics of the ocean floor. The (2) Approximately 5 short-period dimensions are 2.5 × 30.5 × 38.1 cm (1 hull-mounted MBES emits brief pulses OBSs tethered in the water column × 12 × 15 in). The Scripps Institution of of sound (also called a ping) (10.5 to 13, above the trench areas deeper than 6 km Oceanography LC4x4 OBSs will also be usually 12 kHz) in a fan-shaped beam (3.2 nmi); and used during the cruise. This OBS has a that extends downward and to the sides (3) Approximately 60 short-period volume of approximately 1 m3 (35.3 ft3), of the ship. The transmitting beamwidth OBSs located on the bottom in a 2D with an anchor that consists of a large is 1° or 2° fore-aft and 150° athwartship array with a spacing of about 75 km piece of steel grating (approximately 1 and the maximum source level is 242 (40.5nmi) (see Figure 1 of L–DEO’s m2). Once an OBS is ready to be dB re: 1 mPa. application). retrieved, an acoustic release Each ping consists of eight (in water The first two types will be left in transponder interrogates the OBS at a greater than 1,000 m) or four (less than place for one year for passive recording, frequency of 9 to 11 kHz, and a response 1,000 m) successive, fan-shaped and the third type will be retrieved after is received at a frequency of 9 to 13 kHz. transmissions, each ensonifying a sector the seismic operations. OBSs deployed The burn-wire release assembly is then that extends 1° fore-aft. Continuous- in water deeper than 5,500 m (18,044.6 activated, and the instrument is released wave pulses increase from 2 to 15 ft) will require a tether to keep the from the anchor to float to the surface. milliseconds (ms) long in water depths instruments at a depth of 5,500 to 6,000 Along with the airgun operations, two up to 2,600 m (8,530.2 ft), and frequency m (18,044.6 to 19,685 ft), as the additional acoustical data acquisition modulated (FM) chirp pulses up to 100 instruments are rated to a maximum systems will be operated from the ms long are used in water greater than depth of 6,000 m. The lengths of the Langseth continuously during the 2,600 m. The successive transmissions tethers will vary from 65 to 2,600 m survey. The ocean floor will be mapped span an overall cross-track angular

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77786 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

extent of about 150°, with 2 ms gaps because of the relatively slow operation Endangered Species Act of 1973 (ESA; between the pulses for successive speed of the vessel (4.6 knots [kts]; 8.5 16 U.S.C. 1531 et seq.), including the sectors. km/hr; 5.3 mph) during seismic North Pacific right (Eubalaena acquisition. japonica), humpback (Megaptera SBP Description of the Proposed Dates, novaeangliae), sei (Balaenoptera The Langseth will also operate a Duration, and Specified Geographic borealis), fin (Balaenoptera physalus), Knudsen Chirp 3260 SBP continuously Region blue (Balaenoptera musculus), and throughout the cruise simultaneously sperm (Physeter macrocephalus) whales The survey will occur in the CNMI in with the MBES to map and provide Cetaceans are the subject of the IHA the area 16.5° to 19° North, 146.5 to information about the sedimentary application to NMFS. There are not 150.5° East. The seismic survey will features and bottom topography. The reported sightings of pinnipeds in the take place in water depths of 2,000 m beam is transmitted as a 27° cone, CNMI (e.g., Department of the Navy, to greater than 8,000 m. The Langseth which is directed downward by a 3.5 2005). The dugong (Dugong dugon) is kHz transducer in the hull of the will depart from Guam on February 5, 2012, and return to Guam on March 21, distributed throughout most of the Indo- Langseth. The nominal power output is Pacific region between approximately 10 kilowatts (kW), but the actual 2012. The Langseth will return to port ° from March 2 to 5, 2012. Seismic 27 North and South of the equator maximum radiated power is 3 kW or (Marsh, 2002), but it seems unlikely that 222 dB re 1 mPam. The pulse duration operations will be carried out for 16 days, with the balance of the cruise dugongs have ever inhabited the is up to 64 milliseconds (ms), and the Mariana Islands (Nishiwaki et al., 1979). pulse interval is one second, but a occupied in transit (approximately 2 days) and in deployment and retrieval The dugong is also listed as endangered common mode of operation is to of OBSs and maintenance (25 days). under the ESA. There have been some broadcast five pulses at one second Some minor deviation from this extralimital sightings in Guam, intervals followed by a five second schedule is possible, depending on including a single dugong in Cocos pause. logistics and weather (i.e., the cruise Lagoon in 1974 (Randall et al., 1975) NMFS expects that acoustic stimuli may depart earlier or be extended due and several sightings of an individual in resulting from the proposed operation of to poor weather; there could be 1985 along the southeastern coast the single airgun or the 36 airgun array additional days (up to three) of seismic (Eldredge, 2003). The dugong is the one has the potential to harass marine operations if collected data are deemed marine mammal species mentioned in mammals, incidental to the conduct of to be of substandard quality). this document that is managed by the the proposed seismic survey. NMFS U.S. Fish and Wildlife Service (USFWS) expects these disturbances to be Description of the Marine Mammals in and is not considered further in this temporary and result, at worst, in a the Area of the Proposed Specified analysis; all others are managed by temporary modification in behavior Activity NMFS. Table 2 (below) presents and/or low-level physiological effects Twenty-seven marine mammal information on the abundance, (Level B harassment) of small numbers species (20 odontocetes [dolphins and distribution, population status, of certain species of marine mammals. small- and large-toothed whales] and 7 conservation status, and density of the NMFS does not expect that the mysticetes [baleen whales]) are known marine mammals that may occur in the movement of the Langseth, during the to or could occur in the CNMI study proposed survey area during February to conduct of the seismic survey, has the area. Several of these species are listed March, 2012. potential to harass marine mammals as endangered under the U.S. BILLING CODE 3510–22–P

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77787

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4725 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES EN14DE11.001 77788 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4725 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES EN14DE11.002 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77789

BILLING CODE 3510–22–C responses to a repeated or ongoing seismic pulses, and their calls can Refer to sections III and IV of L–DEO’s stimulus) (Richardson, et al., 1995; usually be heard between the seismic application for detailed information Thorpe, 1963), but because of ecological pulses (e.g., Richardson et al., 1986; regarding the abundance and or physiological requirements, many McDonald et al., 1995; Greene et al., distribution, population status, and life marine animals may need to remain in 1999; Nieukirk et al., 2004; Smultea et history and behavior of these species areas where they are exposed to chronic al., 2004; Holst et al., 2005a, b, 2006; and their occurrence in the proposed stimuli (Richardson, et al., 1995). and Dunn and Hernandez, 2009). project area. The application also Numerous studies have shown that However, Clark and Gagnon (2006) presents how L–DEO calculated the pulsed sounds from airguns are often reported that fin whales in the Northeast estimated densities for the marine readily detectable in the water at Pacific Ocean went silent for an mammals in the proposed survey area. distances of many kms. Several studies extended period starting soon after the NMFS has reviewed these data and have shown that marine mammals at onset of a seismic survey in the area. determined them to be the best available distances more than a few kms from Similarly, there has been one report that scientific information for the purposes operating seismic vessels often show no sperm whales ceased calling when of the proposed IHA. apparent response (see Appendix B[5] exposed to pulses from a very distant Potential Effects on Marine Mammals in NSF’s EA). That is often true even in seismic ship (Bowles et al., 1994). cases when the pulsed sounds must be Acoustic stimuli generated by the However, more recent studies found readily audible to the animals based on that they continued calling in the operation of the airguns, which measured received levels and the introduce sound into the marine presence of seismic pulses (Madsen et hearing sensitivity of the marine al., 2002; Tyack et al., 2003; Smultea et environment, may have the potential to mammal group. Although various cause Level B harassment of marine al., 2004; Holst et al., 2006; and Jochens baleen whales and toothed whales, and et al., 2008). Dolphins and porpoises mammals in the proposed survey area. (less frequently) pinnipeds have been The effects of sounds from airgun commonly are heard calling while shown to react behaviorally to airgun airguns are operating (e.g., Gordon et al., operations might include one or more of pulses under some conditions, at other the following: Tolerance, masking of 2004; Smultea et al., 2004; Holst et al., times marine mammals of all three types 2005a, b; and Potter et al., 2007). The natural sounds, behavioral disturbance, have shown no overt reactions. The temporary or permanent hearing sounds important to small odontocetes relative responsiveness of baleen and are predominantly at much higher impairment, or non-auditory physical or toothed whales are quite variable. physiological effects (Richardson et al., frequencies than are the dominant 1995; Gordon et al., 2004; Nowacek et Masking of Natural Sounds components of airgun sounds, thus limiting the potential for masking. al., 2007; Southall et al., 2007). The term masking refers to the Permanent hearing impairment, in the inability of a subject to recognize the In general, NMFS expects the masking unlikely event that it occurred, would occurrence of an acoustic stimulus as a effects of seismic pulses to be minor, constitute injury, but temporary result of the interference of another given the normally intermittent nature threshold shift (TTS) is not an injury acoustic stimulus (Clark et al., 2009). of seismic pulses. Refer to Appendix (Southall et al., 2007). Although the Introduced underwater sound may, B(4) of NSF’s EA for a more detailed possibility cannot be entirely excluded, through masking, reduce the effective discussion of masking effects on marine it is unlikely that the proposed project communication distance of a marine mammals. would result in any cases of temporary mammal species if the frequency of the Behavioral Disturbance or permanent hearing impairment, or source is close to that used as a signal any significant non-auditory physical or by the marine mammal, and if the Disturbance includes a variety of physiological effects. Based on the anthropogenic sound is present for a effects, including subtle to conspicuous available data and studies described significant fraction of the time changes in behavior, movement, and here, some behavioral disturbance is (Richardson et al., 1995). displacement. Reactions to sound, if expected, but NMFS expects the Masking effects of pulsed sounds any, depend on species, state of disturbance to be localized and short- (even from large arrays of airguns) on maturity, experience, current activity, term. marine mammal calls and other natural reproductive state, time of day, and sounds are expected to be limited. many other factors (Richardson et al., Tolerance to Sound Because of the intermittent nature and 1995; Wartzok et al., 2004; Southall et Studies on marine mammals’ low duty cycle of seismic airgun pulses, al., 2007; Weilgart, 2007). If a marine tolerance to sound in the natural animals can emit and receive sounds in mammal does react briefly to an environment are relatively rare. the relatively quiet intervals between underwater sound by changing its Richardson et al. (1995) defines pulses. However, in some situations, behavior or moving a small distance, the tolerance as the occurrence of marine reverberation occurs for much or the impacts of the change are unlikely to be mammals in areas where they are entire interval between pulses (e.g., significant to the individual, let alone exposed to human activities or man- Simard et al., 2005; Clark and Gagnon, the stock or population. However, if a made noise. In many cases, tolerance 2006) which could mask calls. Some sound source displaces marine develops by the animal habituating to baleen and toothed whales are known to mammals from an important feeding or the stimulus (i.e., the gradual waning of continue calling in the presence of breeding area for a prolonged period,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES EN14DE11.003 77790 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

impacts on individuals and populations other strong behavioral reactions to the subtle effects, at received levels up to could be significant (e.g., Lusseau and airgun array. Subtle behavioral changes 172 dB re 1 mPa (rms). However, Bejder, 2007; Weilgart, 2007). Given the sometimes become evident at somewhat Moulton and Holst (2010) reported that many uncertainties in predicting the lower received levels, and studies humpback whales monitored during quantity and types of impacts of noise summarized in Appendix B(5) of NSF’s seismic surveys in the Northwest on marine mammals, it is common EA have shown that some species of Atlantic had lower sighting rates and practice to estimate how many baleen whales, notably bowhead and were most often seen swimming away mammals would be present within a humpback whales, at times, show strong from the vessel during seismic periods particular distance of industrial avoidance at received levels lower than compared with periods when airguns activities and/or exposed to a particular 160 to 170 dB re 1 mPa (rms). were silent. level of industrial sound. In most cases, McCauley et al. (1998, 2000a) studied Studies have suggested that south this approach likely overestimates the the responses of humpback whales off Atlantic humpback whales wintering off numbers of marine mammals that would western Australia to a full-scale seismic Brazil may be displaced or even strand be affected in some biologically- survey with a 16 airgun array (2,678 in3) upon exposure to seismic surveys (Engel important manner. and to a single airgun (20 in3) with et al., 2004). The evidence for this was The sound criteria used to estimate source level of 227 dB re 1 mPa (p-p). In circumstantial and subject to alternative how many marine mammals might be the 1998 study, they documented that explanations (IAGC, 2004). Also, the disturbed to some biologically- avoidance reactions began at five to evidence was not consistent with important degree by a seismic program eight km from the array, and that those subsequent results from the same area of are based primarily on behavioral reactions kept most pods approximately Brazil (Parente et al., 2006), or with observations of a few species. Scientists three to four km (1.6 to 2.2 nmi) from direct studies of humpbacks exposed to have conducted detailed studies on the operating seismic boat. In the 2000 seismic surveys in other areas and humpback, gray (Eschrichtius robustus), study, they noted localized seasons. After allowance for data from bowhead (Balaena mysticetus), and displacement during migration of four subsequent years, there was ‘‘no sperm whales. Less detailed data are to five km (2.2 to 2.7 nmi) by traveling observable direct correlation’’ between available for some other species of pods and seven to 12 km (3.8 to 6.5 nmi) strandings and seismic surveys (IWC, baleen whales, small toothed whales, by more sensitive resting pods of cow- 2007: 236). and sea otters, but for many species calf pairs. Avoidance distances with There are no data on reactions of right there are no data on responses to marine respect to the single airgun were smaller whales to seismic surveys, but results seismic surveys. but consistent with the results from the from the closely-related bowhead whale Baleen Whales—Baleen whales full array in terms of the received sound show that their responsiveness can be generally tend to avoid operating levels. The mean received level for quite variable depending on their airguns, but avoidance radii are quite initial avoidance of an approaching activity (migrating versus feeding). variable (reviewed in Richardson et al., airgun was 140 dB re 1 mPa (rms) for Bowhead whales migrating west across 1995). Whales are often reported to humpback pods containing females, and the Alaskan Beaufort Sea in autumn, in show no overt reactions to pulses from at the mean closest point of approach particular, are unusually responsive, large arrays of airguns at distances distance the received level was 143 dB with substantial avoidance occurring beyond a few kms, even though the re 1 mPa (rms). The initial avoidance out to distances of 20 to 30 km (10.8 to airgun pulses remain well above response generally occurred at distances 16.2 nmi) from a medium-sized airgun ambient noise levels out to much longer of five to eight km (2.7 to 4.3 nmi) from source at received sound levels of distances. However, as reviewed in the airgun array and two km (1.1 nmi) around 120 to 130 dB re 1 mPa (Miller Appendix B(5) of NSF’s EA, baleen from the single airgun. However, some et al., 1999; Richardson et al., 1999; see whales exposed to strong noise pulses individual humpback whales, especially Appendix B(5) of NSF’s EA). However, from airguns often react by deviating males, approached within distances of more recent research on bowhead from their normal migration route and/ 100 to 400 m (328 to 1,312 ft), where the whales (Miller et al., 2005; Harris et al., or interrupting their feeding and moving maximum received level was 179 dB re 2007) corroborates earlier evidence that, away. In the cases of migrating gray and 1 mPa (rms). during the summer feeding season, bowhead whales, the observed changes Data collected by observers during bowheads are not as sensitive to seismic in behavior appeared to be of little or no several seismic surveys in the sources. Nonetheless, subtle but biological consequence to the animals Northwest Atlantic showed that sighting statistically significant changes in (Richardson, et al., 1995). They simply rates of humpback whales were surfacing-respiration-dive cycles were avoided the sound source by displacing significantly greater during non-seismic evident upon statistical analysis their migration route to varying degrees, periods compared with periods when a (Richardson et al., 1986). In the but within the natural boundaries of the full array was operating (Moulton and summer, bowheads typically begin to migration corridors. Holst, 2010). In addition, humpback show avoidance reactions at received Studies of gray, bowhead, and whales were more likely to swim away levels of about 152 to 178 dB re 1 mPa humpback whales have shown that and less likely to swim towards a vessel (Richardson et al., 1986, 1995; seismic pulses with received levels of during seismic vs. non-seismic periods Ljungblad et al., 1988; Miller et al., 160 to 170 dB re 1 mPa (rms) seem to (Moulton and Holst, 2010). 2005). cause obvious avoidance behavior in a Humpback whales on their summer Reactions of migrating and feeding substantial fraction of the animals feeding grounds in southeast Alaska did (but not wintering) gray whales to exposed (Malme et al., 1986, 1988; not exhibit persistent avoidance when seismic surveys have been studied. Richardson et al., 1995). In many areas, exposed to seismic pulses from a 1.64– Malme et al. (1986, 1988) studied the seismic pulses from large arrays of L (100 in3) airgun (Malme et al., 1985). responses of feeding eastern Pacific gray airguns diminish to those levels at Some humpbacks seemed ‘‘startled’’ at whales to pulses from a single 100 in3 distances ranging from four to 15 km received levels of 150 to 169 dB re 1 airgun off St. Lawrence Island in the from the source. A substantial mPa. Malme et al. (1985) concluded that northern Bering Sea. They estimated, proportion of the baleen whales within there was no clear evidence of based on small sample sizes, that 50 those distances may show avoidance or avoidance, despite the possibility of percent of feeding gray whales stopped

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77791

feeding at an average received pressure were underway (Moulton and Holst, the seismic vessel even when large level of 173 dB re 1 mPa on an 2010). arrays of airguns are firing (e.g., (approximate) rms basis, and that 10 Data on short-term reactions by Moulton and Miller, 2005). Nonetheless, percent of feeding whales interrupted cetaceans to impulsive noises are not small toothed whales more often tend to feeding at received levels of 163 dB re necessarily indicative of long-term or head away, or to maintain a somewhat 1 mPa (rms). Those findings were biologically significant effects. It is not greater distance from the vessel, when a generally consistent with the results of known whether impulsive sounds affect large array of airguns is operating than experiments conducted on larger reproductive rate or distribution and when it is silent (e.g., Stone and Tasker, numbers of gray whales that were habitat use in subsequent days or years. 2006; Weir, 2008; Barry et al., 2010; migrating along the California coast However, gray whales have continued to Moulton and Holst, 2010). In most (Malme et al., 1984; Malme and Miles, migrate annually along the west coast of cases, the avoidance radii for delphinids 1985), and western Pacific gray whales North America with substantial appear to be small, on the order of one feeding off Sakhalin Island, Russia increases in the population over recent km or less, and some individuals show (Wursig et al., 1999; Gailey et al., 2007; years, despite intermittent seismic no apparent avoidance. The beluga Johnson et al., 2007; Yazvenko et al., exploration (and much ship traffic) in whale (Delphinapterus leucas) is a 2007a, b), along with data on gray that area for decades (Appendix A in species that (at least at times) shows whales off British Columbia (Bain and Malme et al., 1984; Richardson et al., long-distance avoidance of seismic Williams, 2006). 1995; Allen and Angliss, 2010). The vessels. Aerial surveys conducted in the Various species of Balaenoptera (blue, western Pacific gray whale population southeastern Beaufort Sea during sei, fin, and minke whales) have did not seem affected by a seismic summer found that sighting rates of occasionally been seen in areas survey in its feeding ground during a beluga whales were significantly lower ensonified by airgun pulses (Stone, previous year (Johnson et al., 2007). at distances 10 to 20 km (5.4 to 10.8 2003; MacLean and Haley, 2004; Stone Similarly, bowhead whales have nmi) compared with 20 to 30 km from and Tasker, 2006), and calls from blue continued to travel to the eastern an operating airgun array, and PSOs on and fin whales have been localized in Beaufort Sea each summer, and their seismic boats in that area rarely see areas with airgun operations (e.g., numbers have increased notably, belugas (Miller et al., 2005; Harris et al., McDonald et al., 1995; Dunn and despite seismic exploration in their 2007). Hernandez, 2009; Castellote et al., summer and autumn range for many Captive bottlenose dolphins (Tursiops years (Richardson et al., 1987; Allen and 2010). Sightings by observers on seismic truncatus) and beluga whales exhibited Angliss, 2010). vessels off the United Kingdom from changes in behavior when exposed to Toothed Whales—Little systematic strong pulsed sounds similar in 1997 to 2000 suggest that, during times information is available about reactions duration to those typically used in of good sightability, sighting rates for of toothed whales to noise pulses. Few seismic surveys (Finneran et al., 2000, mysticetes (mainly fin and sei whales) studies similar to the more extensive 2002, 2005). However, the animals were similar when large arrays of baleen whale/seismic pulse work airguns were shooting vs. silent (Stone, summarized above and (in more detail) tolerated high received levels of sound 2003; Stone and Tasker, 2006). in Appendix B of NSF’s EA have been before exhibiting aversive behaviors. However, these whales tended to exhibit reported for toothed whales. However, Results for porpoises depend on localized avoidance, remaining there are recent systematic studies on species. The limited available data significantly further (on average) from sperm whales (e.g., Gordon et al., 2006; suggest that harbor porpoises show the airgun array during seismic Madsen et al., 2006; Winsor and Mate, stronger avoidance of seismic operations operations compared with non-seismic 2006; Jochens et al., 2008; Miller et al., than do Dall’s porpoises (Stone, 2003; periods (Stone and Tasker, 2006). 2009). There is an increasing amount of MacLean and Koski, 2005; Bain and Castellote et al. (2010) reported that information about responses of various Williams, 2006; Stone and Tasker, singing fin whales in the Mediterranean odontocetes to seismic surveys based on 2006). Dall’s porpoises seem relatively moved away from an operating airgun monitoring studies (e.g., Stone, 2003; tolerant of airgun operations (MacLean array. Smultea et al., 2004; Moulton and and Koski, 2005; Bain and Williams, Ship-based monitoring studies of Miller, 2005; Bain and Williams, 2006; 2006), although they too have been baleen whales (including blue, fin, sei, Holst et al., 2006; Stone and Tasker, observed to avoid large arrays of minke, and humpback whales) in the 2006; Potter et al., 2007; Hauser et al., operating airguns (Calambokidis and Northwest Atlantic found that overall, 2008; Holst and Smultea, 2008; Weir, Osmek, 1998; Bain and Williams, 2006). this group had lower sighting rates 2008; Barkaszi et al., 2009; Richardson This apparent difference in during seismic vs. non-seismic periods et al., 2009; Moulton and Holst, 2010). responsiveness of these two porpoise (Moulton and Holst, 2010). Baleen Seismic operators and Protected species is consistent with their relative whales as a group were also seen Species Observers (PSOs) on seismic responsiveness to boat traffic and some significantly farther from the vessel vessels regularly see dolphins and other other acoustic sources (Richardson et during seismic compared with non- small toothed whales near operating al., 1995; Southall et al., 2007). seismic periods, and they were more airgun arrays, but in general there is a Most studies of sperm whales exposed often seen to be swimming away from tendency for most delphinids to show to airgun sounds indicate that the sperm the operating seismic vessel (Moulton some avoidance of operating seismic whale shows considerable tolerance of and Holst, 2010). Blue and minke vessels (e.g., Goold, 1996a,b,c; airgun pulses (e.g., Stone, 2003; whales were initially sighted Calambokidis and Osmek, 1998; Stone, Moulton et al., 2005, 2006a; Stone and significantly farther from the vessel 2003; Moulton and Miller, 2005; Holst Tasker, 2006; Weir, 2008). In most cases during seismic operations compared to et al., 2006; Stone and Tasker, 2006; the whales do not show strong non-seismic periods; the same trend was Weir, 2008; Richardson et al., 2009; avoidance, and they continue to call observed for fin whales (Moulton and Barkaszi et al., 2009; Moulton and (see Appendix B of NSF’s EA for Holst, 2010). Minke whales were most Holst, 2010). Some dolphins seem to be review). However, controlled exposure often observed to be swimming away attracted to the seismic vessel and experiments in the GOM indicate that from the vessel when seismic operations floats, and some ride the bow wave of foraging behavior was altered upon

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77792 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

exposure to airgun sound (Jochens et al., Pinnipeds—Pinnipeds are not likely experiencing TTS, the hearing threshold 2008; Miller et al., 2009; Tyack, 2009). to show a strong avoidance reaction to rises and a sound must be stronger in There are almost no specific data on the airgun array. Visual monitoring from order to be heard. At least in terrestrial the behavioral reactions of beaked seismic vessels has shown only slight (if mammals, TTS can last from minutes or whales to seismic surveys. However, any) avoidance of airguns by pinnipeds, hours to (in cases of strong TTS) days. some northern bottlenose whales and only slight (if any) changes in For sound exposures at or somewhat (Hyperoodon ampullatus) remained in behavior, see Appendix B(5) of NSF’s above the TTS threshold, hearing the general area and continued to EA. In the Beaufort Sea, some ringed sensitivity in both terrestrial and marine produce high-frequency clicks when seals avoided an area of 100 m to (at mammals recovers rapidly after exposed to sound pulses from distant most) a few hundred meters around exposure to the noise ends. Few data on seismic surveys (Gosselin and Lawson, seismic vessels, but many seals sound levels and durations necessary to 2004; Laurinolli and Cochrane, 2005; remained within 100 to 200 m (328 to elicit mild TTS have been obtained for Simard et al., 2005). Most beaked 656 ft) of the trackline as the operating marine mammals, and none of the whales tend to avoid approaching airgun array passed by (e.g., Harris et al., published data concern TTS elicited by vessels of other types (e.g., Wursig et al., 2001; Moulton and Lawson, 2002; exposure to multiple pulses of sound. 1998). They may also dive for an Miller et al., 2005). Ringed seal sightings Available data on TTS in marine extended period when approached by a averaged somewhat farther away from mammals are summarized in Southall et vessel (e.g., Kasuya, 1986), although it is the seismic vessel when the airguns al. (2007). Table 1 (above) presents the uncertain how much longer such dives were operating than when they were distances from the Langseth’s airguns at may be as compared to dives by not, but the difference was small which the received energy level (per undisturbed beaked whales, which also (Moulton and Lawson, 2002). Similarly, pulse, flat-weighted) would be expected are often quite long (Baird et al., 2006; in Puget Sound, sighting distances for to be greater than or equal to 180 dB re Tyack et al., 2006). Based on a single harbor seals and California sea lions 1 mPa (rms). observation, Aguilar-Soto et al. (2006) tended to be larger when airguns were To avoid the potential for injury, suggested that foraging efficiency of operating (Calambokidis and Osmek, NMFS (1995, 2000) concluded that Cuvier’s beaked whales may be reduced 1998). Previous telemetry work suggests cetaceans should not be exposed to by close approach of vessels. In any that avoidance and other behavioral pulsed underwater noise at received event, it is likely that most beaked reactions may be stronger than evident levels exceeding 180 dB re 1 mPa (rms). whales would also show strong to date from visual studies (Thompson NMFS believes that to avoid the avoidance of an approaching seismic et al., 1998). potential for permanent physiological vessel, although this has not been damage (Level A harassment), cetaceans documented explicitly. In fact, Moulton Hearing Impairment and Other Physical should not be exposed to pulsed and Holst (2010) reported 15 sightings Effects underwater noise at received levels of beaked whales during seismic studies Exposure to high intensity sound for exceeding 180 dB re 1 mPa (rms). The in the Northwest Atlantic; seven of a sufficient duration may result in 180 dB level is a shutdown criterion those sightings were made at times auditory effects such as a noise-induced applicable to cetaceans, as specified by when at least one airgun was operating. threshold shift—an increase in the NMFS (2000); these levels were used to There was little evidence to indicate auditory threshold after exposure to establish the EZs. NMFS also assumes that beaked whale behavior was affected noise (Finneran, Carder, Schlundt, and that cetaceans exposed to levels by airgun operations; sighting rates and Ridgway, 2005). Factors that influence exceeding 160 dB re 1 mPa (rms) may distances were similar during seismic the amount of threshold shift include experience Level B harassment. and non-seismic periods (Moulton and the amplitude, duration, frequency Researchers have derived TTS Holst, 2010). content, temporal pattern, and energy information for odontocetes from There are increasing indications that distribution of noise exposure. The studies on the bottlenose dolphin and some beaked whales tend to strand magnitude of hearing threshold shift beluga. For the one harbor porpoise when naval exercises involving mid- normally decreases over time following tested, the received level of airgun frequency sonar operation are ongoing cessation of the noise exposure. The sound that elicited onset of TTS was nearby (e.g., Simmonds and Lopez- amount of threshold shift just after lower (Lucke et al., 2009). If these Jurado, 1991; Frantzis, 1998; NOAA and exposure is called the initial threshold results from a single animal are USN, 2001; Jepson et al., 2003; shift. If the threshold shift eventually representative, it is inappropriate to Hildebrand, 2005; Barlow and Gisiner, returns to zero (i.e., the threshold assume that onset of TTS occurs at 2006; see also the ‘‘Stranding and returns to the pre-exposure value), it is similar received levels in all Mortality’’ section in this notice). These called temporary threshold shift (TTS) odontocetes (cf. Southall et al., 2007). strandings are apparently a disturbance (Southall et al., 2007). Some cetaceans apparently can incur response, although auditory or other Researchers have studied TTS in TTS at considerably lower sound injuries or other physiological effects certain captive odontocetes and exposures than are necessary to elicit may also be involved. Whether beaked pinnipeds exposed to strong sounds TTS in the beluga or bottlenose dolphin. whales would ever react similarly to (reviewed in Southall et al., 2007). For baleen whales, there are no data, seismic surveys is unknown. Seismic However, there has been no specific direct or indirect, on levels or properties survey sounds are quite different from documentation of TTS let alone of sound that are required to induce those of the sonar in operation during permanent hearing damage, i.e., TTS. The frequencies to which baleen the above-cited incidents. permanent threshold shift (PTS), in free- whales are most sensitive are assumed Odontocete reactions to large arrays of ranging marine mammals exposed to to be lower than those to which airguns are variable and, at least for sequences of airgun pulses during odontocetes are most sensitive, and delphinids and Dall’s porpoises, seem to realistic field conditions. natural background noise levels at those be confined to a smaller radius than has Temporary Threshold Shift—TTS is low frequencies tend to be higher. As a been observed for the more responsive the mildest form of hearing impairment result, auditory thresholds of baleen of the mysticetes, belugas, and harbor that can occur during exposure to a whales within their frequency band of porpoises (Appendix B of NSF’s EA). strong sound (Kryter, 1985). While best hearing are believed to be higher

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77793

(less sensitive) than are those of animal were exposed to strong sound apply in the case of impulse sounds. odontocetes at their best frequencies pulses with rapid rise times—see However, there are indications that gas- (Clark and Ellison, 2004). From this, it Appendix B(6) of NSF’s EA. Based on bubble disease (analogous to ‘‘the is suspected that received levels causing data from terrestrial mammals, a bends’’), induced in supersaturated TTS onset may also be higher in baleen precautionary assumption is that the tissue by a behavioral response to whales (Southall et al., 2007). For this PTS threshold for impulse sounds (such acoustic exposure, could be a pathologic proposed study, L–DEO expects no as airgun pulses as received close to the mechanism for the strandings and cases of TTS given the low abundance source) is at least 6 dB higher than the mortality of some deep-diving cetaceans of baleen whales in the planned study TTS threshold on a peak-pressure basis, exposed to sonar. The evidence for this area at the time of the survey, and the and probably greater than six dB remains circumstantial and associated strong likelihood that baleen whales (Southall et al., 2007). with exposure to naval mid-frequency would avoid the approaching airguns Given the higher level of sound sonar, not seismic surveys (Cox et al., (or vessel) before being exposed to necessary to cause PTS as compared 2006; Southall et al., 2007). levels high enough for TTS to occur. with TTS, it is considerably less likely Seismic pulses and mid-frequency In pinnipeds, TTS thresholds that PTS would occur. Baleen whales sonar signals are quite different, and associated with exposure to brief pulses generally avoid the immediate area some mechanisms by which sonar (single or multiple) of underwater sound around operating seismic vessels, as do sounds have been hypothesized to affect have not been measured. Initial some other marine mammals. beaked whales are unlikely to apply to evidence from more prolonged (non- Stranding and Mortality—Marine airgun pulses. Sounds produced by pulse) exposures suggested that some mammals close to underwater airgun arrays are broadband impulses pinnipeds (harbor seals in particular) detonations of high explosives can be with most of the energy below one kHz. incur TTS at somewhat lower received killed or severely injured, and the Typical military mid-frequency sonar levels than do small odontocetes auditory organs are especially emits non-impulse sounds at exposed for similar durations (Kastak et susceptible to injury (Ketten et al., 1993; frequencies of two to 10 kHz, generally al., 1999, 2005; Ketten et al., 2001). The Ketten, 1995). However, explosives are with a relatively narrow bandwidth at TTS threshold for pulsed sounds has no longer used in marine waters for any one time. A further difference been indirectly estimated as being an commercial seismic surveys or (with between seismic surveys and naval SEL of approximately 171 dB re 1 mPa2·s rare exceptions) for seismic research; exercises is that naval exercises can (Southall et al., 2007) which would be they have been replaced entirely by involve sound sources on more than one equivalent to a single pulse with a airguns or related non-explosive pulse vessel. Thus, it is not appropriate to received level of approximately 181 to generators. Airgun pulses are less assume that there is a direct connection 186 dB re 1 mPa (rms), or a series of energetic and have slower rise times, between the effects of military sonar and pulses for which the highest rms values and there is no specific evidence that seismic surveys on marine mammals. are a few dB lower. Corresponding they can cause serious injury, death, or However, evidence that sonar signals values for California sea lions and stranding even in the case of large can, in special circumstances, lead (at northern elephant seals are likely to be airgun arrays. However, the association least indirectly) to physical damage and higher (Kastak et al., 2005). of strandings of beaked whales with mortality (e.g., Balcomb and Claridge, Permanent Threshold Shift—When naval exercises involving mid-frequency 2001; NOAA and USN, 2001; Jepson et PTS occurs, there is physical damage to active sonar and, in one case, an L–DEO al., 2003; Ferna´ndez et al., 2004, 2005; the sound receptors in the ear. In severe seismic survey (Malakoff, 2002; Cox et Hildebrand 2005; Cox et al., 2006) cases, there can be total or partial al., 2006), has raised the possibility that suggests that caution is warranted when deafness, whereas in other cases, the beaked whales exposed to strong dealing with exposure of marine animal has an impaired ability to hear ‘‘pulsed’’ sounds may be especially mammals to any high-intensity sounds in specific frequency ranges susceptible to injury and/or behavioral ‘‘pulsed’’ sound. (Kryter, 1985). There is no specific reactions that can lead to stranding (e.g., There is no conclusive evidence of evidence that exposure to pulses of Hildebrand, 2005; Southall et al., 2007). cetacean strandings or deaths at sea as airgun sound can cause PTS in any Appendix B(6) of NSF’s EA provides a result of exposure to seismic surveys, marine mammal, even with large arrays additional details. but a few cases of strandings in the of airguns. However, given the Specific sound-related processes that general area where a seismic survey was possibility that mammals close to an lead to strandings and mortality are not ongoing have led to speculation airgun array might incur at least mild well documented, but may include: concerning a possible link between TTS, there has been further speculation (1) Swimming in avoidance of a seismic surveys and strandings. about the possibility that some sound into shallow water; Suggestions that there was a link individuals occurring very close to (2) A change in behavior (such as a between seismic surveys and strandings airguns might incur PTS (e.g., change in diving behavior) that might of humpback whales in Brazil (Engel et Richardson et al., 1995, p. 372ff; contribute to tissue damage, gas bubble al., 2004) were not well founded (IAGC, Gedamke et al., 2008). Single or formation, hypoxia, cardiac arrhythmia, 2004; IWC, 2007). In September, 2002, occasional occurrences of mild TTS are hypertensive hemorrhage or other forms there was a stranding of two Cuvier’s not indicative of permanent auditory of trauma; beaked whales (Ziphius cavirostris) in damage, but repeated or (in some cases) (3) A physiological change such as a the Gulf of California, Mexico, when the single exposures to a level well above vestibular response leading to a L–DEO vessel R/V Maurice Ewing was that causing TTS onset might elicit PTS. behavioral change or stress-induced operating a 20 airgun (8,490 in3) array Relationships between TTS and PTS hemorrhagic diathesis, leading in turn in the general area. The link between thresholds have not been studied in to tissue damage; and the stranding and the seismic surveys marine mammals, but are assumed to be (4) Tissue damage directly from sound was inconclusive and not based on any similar to those in humans and other exposure, such as through acoustically- physical evidence (Hogarth, 2002; terrestrial mammals. PTS might occur at mediated bubble formation and growth Yoder, 2002). Nonetheless, the Gulf of a received sound level at least several or acoustic resonance of tissues. Some California incident plus the beaked dBs above that inducing mild TTS if the of these mechanisms are unlikely to whale strandings near naval exercises

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77794 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

involving use of mid-frequency sonar MBES are very short pulses, occurring Behavioral Responses—Behavioral suggests a need for caution in for two to 15 ms once every five to 20 reactions of free-ranging marine conducting seismic surveys in areas s, depending on water depth. Most of mammals to sonars, echosounders, and occupied by beaked whales until more the energy in the sound pulses emitted other sound sources appear to vary by is known about effects of seismic by this MBES is at frequencies near 12 species and circumstance. Observed surveys on those species (Hildebrand, kHz, and the maximum source level is reactions have included silencing and 2005). No injuries of beaked whales are 242 dB re 1 mPa (rms). The beam is dispersal by sperm whales (Watkins et anticipated during the proposed study narrow (1 to 2°) in fore-aft extent and al., 1985), increased vocalizations and because of: wide (150°) in the cross-track extent. no dispersal by pilot whales (Rendell (1) The high likelihood that any Each ping consists of eight (in water and Gordon, 1999), and the previously- beaked whales nearby would avoid the greater than 1,000 m deep) or four (in mentioned beachings by beaked whales. approaching vessel before being water less than 1,000 m deep) During exposure to a 21 to 25 kHz exposed to high sound levels, and successive fan-shaped transmissions ‘‘whale-finding’’ sonar with a source (2) Differences between the sound (segments) at different cross-track level of 215 dB re 1 mPa, gray whales sources operated by L–DEO and those angles. Any given mammal at depth reacted by orienting slightly away from involved in the naval exercises near the trackline would be in the main the source and being deflected from associated with strandings. beam for only one or two of the nine their course by approximately 200 m Non-auditory Physiological Effects— segments. Also, marine mammals that (656.2 ft) (Frankel, 2005). When a 38 Non-auditory physiological effects or encounter the Kongsberg EM 122 are kHz echosounder and a 150 kHz injuries that theoretically might occur in unlikely to be subjected to repeated acoustic Doppler current profiler were marine mammals exposed to strong pulses because of the narrow fore-aft transmitting during studies in the underwater sound include stress, width of the beam and will receive only Eastern Tropical Pacific, baleen whales neurological effects, bubble formation, limited amounts of pulse energy showed no significant responses, while resonance, and other types of organ or because of the short pulses. Animals spotted and spinner dolphins were tissue damage (Cox et al., 2006; Southall close to the ship (where the beam is detected slightly more often and beaked et al., 2007). Studies examining such narrowest) are especially unlikely to be whales less often during visual surveys effects are limited. However, resonance ensonified for more than one 2 to 15 ms (Gerrodette and Pettis, 2005). effects (Gentry, 2002) and direct noise- pulse (or two pulses if in the overlap Captive bottlenose dolphins and a induced bubble formations (Crum et al., area). Similarly, Kremser et al. (2005) beluga whale exhibited changes in 2005) are implausible in the case of noted that the probability of a cetacean behavior when exposed to 1 s tonal exposure to an impulsive broadband swimming through the area of exposure signals at frequencies similar to those source like an airgun array. If seismic when an MBES emits a pulse is small. that will be emitted by the MBES used surveys disrupt diving patterns of deep- The animal would have to pass the by L–DEO, and to shorter broadband diving species, this might perhaps result transducer at close range and be pulsed signals. Behavioral changes in bubble formation and a form of the swimming at speeds similar to the typically involved what appeared to be bends, as speculated to occur in beaked vessel in order to receive the multiple deliberate attempts to avoid the sound whales exposed to sonar. However, pulses that might result in sufficient exposure (Schlundt et al., 2000; there is no specific evidence of this exposure to cause TTS. Finneran et al., 2002; Finneran and upon exposure to airgun pulses. Schlundt, 2004). The relevance of those Navy sonars that have been linked to data to free-ranging odontocetes is In general, very little is known about avoidance reactions and stranding of the potential for seismic survey sounds uncertain, and in any case, the test cetaceans: (1) Generally have longer sounds were quite different in duration (or other types of strong underwater pulse duration than the Kongsberg EM sounds) to cause non-auditory physical as compared with those from an MBES. 122; and (2) are often directed close to Very few data are available on the effects in marine mammals. Such horizontally versus more downward for effects, if they occur at all, would reactions of pinnipeds to echosounder the MBES. The area of possible sounds at frequencies similar to those presumably be limited to short distances influence of the MBES is much and to activities that extend over a used during seismic operations. Hastie smaller—a narrow band below the and Janik (2007) conducted a series of prolonged period. The available data do source vessel. Also, the duration of behavioral response tests on two captive not allow identification of a specific exposure for a given marine mammal gray seals to determine their reactions to exposure level above which non- can be much longer for naval sonar. underwater operation of a 375 kHz auditory effects can be expected During L–DEO’s operations, the multibeam imaging echosounder that (Southall et al., 2007), or any individual pulses will be very short, and included significant signal components meaningful quantitative predictions of a given mammal would not receive down to 6 kHz. Results indicated that the numbers (if any) of marine mammals many of the downward-directed pulses the two seals reacted to the signal by that might be affected in those ways. as the vessel passes by. Possible effects significantly increasing their dive Marine mammals that show behavioral of an MBES on marine mammals are durations. Because of the likely brevity avoidance of seismic vessels, including outlined below. of exposure to the MBES sounds, most baleen whales, some odontocetes, Masking—Marine mammal pinniped reactions are expected to be and some pinnipeds, are especially communications will not be masked limited to startle or otherwise brief unlikely to incur non-auditory physical appreciably by the MBES signals given responses of no lasting consequences to effects. the low duty cycle of the echosounder the animals. However, pinnipeds are not Potential Effects of Other Acoustic and the brief period when an individual expected to occur in the proposed study Devices mammal is likely to be within its beam. area. Furthermore, in the case of baleen Hearing Impairment and Other MBES whales, the MBES signals (12 kHz) do Physical Effects—Given recent stranding L–DEO will operate the Kongsberg EM not overlap with the predominant events that have been associated with 122 MBES from the source vessel during frequencies in the calls, which would the operation of naval sonar, there is the planned study. Sounds from the avoid any significant masking. concern that mid-frequency sonar

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77795

sounds can cause serious impacts to SBP produces pulse levels strong involve temporary and permanent marine mammals (see above). However, enough to cause hearing impairment or primary and secondary stress responses, the MBES proposed for use by L–DEO other physical injuries even in an such as changes in levels of enzymes is quite different than sonar used for animal that is (briefly) in a position near and proteins. Behavioral effects refer to Navy operations. Pulse duration of the the source. The SBP is usually operated temporary and (if they occur) permanent MBES is very short relative to the naval simultaneously with other higher-power changes in exhibited behavior (e.g., sonar. Also, at any given location, an acoustic sources, including airguns. startle and avoidance behavior). The individual marine mammal would be in Many marine mammals will move away three categories are interrelated in the beam of the MBES for much less in response to the approaching higher- complex ways. For example, it is time given the generally downward power sources or the vessel itself before possible that certain physiological and orientation of the beam and its narrow the mammals would be close enough for behavioral changes could potentially fore-aft beamwidth; Navy sonar often there to be any possibility of effects lead to an ultimate pathological effect uses near-horizontally-directed sound. from the less intense sounds from the on individuals (i.e., mortality). Those factors would all reduce the SBP. The specific received sound levels at sound energy received from the MBES which permanent adverse effects to fish Acoustic Release Signals rather drastically relative to that from potentially could occur are little studied naval sonar. The acoustic release transponder used and largely unknown. Furthermore, the NMFS believes that the brief exposure to communicate with the OBSs uses available information on the impacts of of marine mammals to one pulse, or frequencies 9 to 13 kHz. These signals seismic surveys on marine fish is from small numbers of signals, from the will be used very intermittently. It is studies of individuals or portions of a MBES is not likely to result in the unlikely that the acoustic release signals population; there have been no studies harassment of marine mammals. would have a significant effect on at the population scale. The studies of marine mammals through masking, individual fish have often been on caged SBP disturbance, or hearing impairment. fish that were exposed to airgun pulses L–DEO will also operate a SBP from Any effects likely would be negligible in situations not representative of an the source vessel during the proposed given the brief exposure at presumably actual seismic survey. Thus, available survey. Sounds from the SBP are very low levels. information provides limited insight on short pulses, occurring for one to four The potential effects to marine possible real-world effects at the ocean ms once every second. Most of the mammals described in this section of or population scale. This makes drawing energy in the sound pulses emitted by the document do not take into conclusions about impacts on fish the SBP is at 3.5 kHz, and the beam is consideration the proposed monitoring problematic because, ultimately, the directed downward. The SBP on the and mitigation measures described later most important issues concern effects Langseth has a maximum source level of in this document (see the ‘‘Proposed on marine fish populations, their 222 dB re 1 mPa. Mitigation’’ and ‘‘Proposed Monitoring viability, and their availability to Kremser et al. (2005) noted that the and Reporting’’ sections) which, as fisheries. probability of a cetacean swimming noted are designed to effect the least Hastings and Popper (2005), Popper through the area of exposure when a practicable adverse impact on affected (2009), and Popper and Hastings bottom profiler emits a pulse is small— marine mammal species and stocks. (2009a,b) provided recent critical even for an SBP more powerful than reviews of the known effects of sound that on the Langseth. If the animal was Anticipated Effects on Marine Mammal on fish. The following sections provide in the area, it would have to pass the Habitat a general synopsis of the available transducer at close range in order to be The proposed seismic survey will not information on the effects of exposure to subjected to sound levels that could result in any permanent impact on seismic and other anthropogenic sound cause TTS. habitats used by the marine mammals in as relevant to fish. The information Masking—Marine mammal the proposed survey area, including the comprises results from scientific studies communications will not be masked food sources they use (i.e. fish and of varying degrees of rigor plus some appreciably by the SBP signals given the invertebrates) The main impact anecdotal information. Some of the data directionality of the signal and the brief associated with the proposed activity sources may have serious shortcomings period when an individual mammal is will be temporarily elevated noise levels in methods, analysis, interpretation, and likely to be within its beam. and the associated direct effects on reproducibility that must be considered Furthermore, in the case of most baleen marine mammals, previously discussed when interpreting their results (see whales, the SBP signals do not overlap in this notice. Hastings and Popper, 2005). Potential with the predominant frequencies in the adverse effects of the program’s sound Anticipated Effects on Fish calls, which would avoid significant sources on marine fish are noted. masking. One reason for the adoption of airguns Pathological Effects—The potential Behavioral Responses—Marine as the standard energy source for marine for pathological damage to hearing mammal behavioral reactions to other seismic surveys is that, unlike structures in fish depends on the energy pulsed sound sources are discussed explosives, they have not been level of the received sound and the above, and responses to the SBP are associated with large-scale fish kills. physiology and hearing capability of the likely to be similar to those for other However, existing information on the species in question (see Appendix D of pulsed sources if received at the same impacts of seismic surveys on marine NSF’s EA). For a given sound to result levels. However, the pulsed signals from fish populations is limited (see in hearing loss, the sound must exceed, the SBP are considerably weaker than Appendix D of NSF’s EA). There are by some substantial amount, the hearing those from the MBES. Therefore, three types of potential effects of threshold of the fish for that sound behavioral responses are not expected exposure to seismic surveys: (1) (Popper, 2005). The consequences of unless marine mammals are very close Pathological, (2) physiological, and (3) temporary or permanent hearing loss in to the source. behavioral. Pathological effects involve individual fish on a fish population are Hearing Impairment and Other lethal and temporary or permanent sub- unknown; however, they likely depend Physical Effects—It is unlikely that the lethal injury. Physiological effects on the number of individuals affected

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77796 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

and whether critical behaviors involving program, the pathological (mortality) In general, any adverse effects on fish sound (e.g., predator avoidance, prey zone for fish would be expected to be behavior or fisheries attributable to capture, orientation and navigation, within a few meters of the seismic seismic testing may depend on the reproduction, etc.) are adversely source. Numerous other studies provide species in question and the nature of the affected. examples of no fish mortality upon fishery (season, duration, fishing Little is known about the mechanisms exposure to seismic sources (Falk and method). They may also depend on the and characteristics of damage to fish Lawrence, 1973; Holliday et al., 1987; age of the fish, its motivational state, its that may be inflicted by exposure to La Bella et al., 1996; Santulli et al., size, and numerous other factors that are seismic survey sounds. Few data have 1999; McCauley et al., 2000a,b, 2003; difficult, if not impossible, to quantify at been presented in the peer-reviewed Bjarti, 2002; Thomsen, 2002; Hassel et this point, given such limited data on scientific literature. As far as L–DEO al., 2003; Popper et al., 2005; Boeger et effects of airguns on fish, particularly and NMFS know, there are only two al., 2006). under realistic at-sea conditions. papers with proper experimental Some studies have reported, some methods, controls, and careful equivocally, that mortality of fish, fish Anticipated Effects on Fisheries pathological investigation implicating eggs, or larvae can occur close to It is possible that the Langseth’s sounds produced by actual seismic seismic sources (Kostyuchenko, 1973; streamer may become entangled with survey airguns in causing adverse Dalen and Knutsen, 1986; Booman et various types of fishing gear. L–DEO anatomical effects. One such study al., 1996; Dalen et al., 1996). Some of will employ avoidance tactics as indicated anatomical damage, and the the reports claimed seismic effects from necessary to prevent conflict. It is not second indicated TTS in fish hearing. treatments quite different from actual expected that L–DEO’s operations will The anatomical case is McCauley et al. seismic survey sounds or even have a significant impact on fisheries in (2003), who found that exposure to reasonable surrogates. However, Payne the CNMI. Nonetheless, L–DEO will airgun sound caused observable et al. (2009) reported no statistical minimize the potential to have a anatomical damage to the auditory differences in mortality/morbidity negative impact on the fisheries by maculae of pink snapper (Pagrus between control and exposed groups of avoiding areas where fishing is actively auratus). This damage in the ears had capelin eggs or monkfish larvae. Saetre underway. not been repaired in fish sacrificed and and Ona (1996) applied a ‘worst-case There is general concern about examined almost two months after scenario’ mathematical model to potential adverse effects of seismic exposure. On the other hand, Popper et investigate the effects of seismic energy operations on fisheries, namely a al. (2005) documented only TTS (as on fish eggs and larvae. They concluded potential reduction in the ‘‘catchability’’ determined by auditory brainstem that mortality rates caused by exposure of fish involved in fisheries. Although response) in two of three fish species to seismic surveys are so low, as reduced catch rates have been observed from the Mackenzie River Delta. This compared to natural mortality rates, that in some marine fisheries during seismic study found that broad whitefish the impact of seismic surveying on testing, in a number of cases the (Coregonus nasus) exposed to five recruitment to a fish stock must be findings are confounded by other airgun shots were not significantly regarded as insignificant. sources of disturbance (Dalen and different from those of controls. During Physiological Effects—Physiological Raknes, 1985; Dalen and Knutsen, 1986; both studies, the repetitive exposure to effects refer to cellular and/or Lokkeborg, 1991; Skalski et al., 1992; sound was greater than would have biochemical responses of fish to Engas et al., 1996). In other airgun occurred during a typical seismic acoustic stress. Such stress potentially experiments, there was no change in survey. However, the substantial low- could affect fish populations by catch per unit effort (CPUE) of fish frequency energy produced by the increasing mortality or reducing when airgun pulses were emitted, airguns (less than 400 Hz in the study reproductive success. Primary and particularly in the immediate vicinity of by McCauley et al. [2003] and less than secondary stress responses of fish after the seismic survey (Pickett et al., 1994; approximately 200 Hz in Popper et al. exposure to seismic survey sound La Bella et al., 1996). For some species, [2005]) likely did not propagate to the appear to be temporary in all studies reductions in catch may have resulted fish because the water in the study areas done to date (Sverdrup et al., 1994; from a change in behavior of the fish, was very shallow (approximately nine Santulli et al., 1999; McCauley et al., e.g., a change in vertical or horizontal m in the former case and less than two 2000a,b). The periods necessary for the distribution, as reported in Slotte et al. m in the latter). Water depth sets a biochemical changes to return to normal (2004). are variable and depend on numerous lower limit on the lowest sound Anticipated Effects on Invertebrates frequency that will propagate (the aspects of the biology of the species and ‘‘cutoff frequency’’) at about one-quarter of the sound stimulus (see Appendix D The existing body of information on wavelength (Urick, 1983; Rogers and of NSF’s EA). the impacts of seismic survey sound on Cox, 1988). Behavioral Effects—Behavioral effects marine invertebrates is very limited. Wardle et al. (2001) suggested that in include changes in the distribution, However, there is some unpublished water, acute injury and death of migration, mating, and catchability of and very limited evidence of the organisms exposed to seismic energy fish populations. Studies investigating potential for adverse effects on depends primarily on two features of the possible effects of sound (including invertebrates, thereby justifying further the sound source: (1) The received peak seismic survey sound) on fish behavior discussion and analysis of this issue. pressure, and (2) the time required for have been conducted on both uncaged The three types of potential effects of the pressure to rise and decay. and caged individuals (e.g., Chapman exposure to seismic surveys on marine Generally, as received pressure and Hawkins, 1969; Pearson et al., 1992; invertebrates are pathological, increases, the period for the pressure to Santulli et al., 1999; Wardle et al., 2001; physiological, and behavioral. Based on rise and decay decreases, and the Hassel et al., 2003). Typically, in these the physical structure of their sensory chance of acute pathological effects studies fish exhibited a sharp startle organs, marine invertebrates appear to increases. According to Buchanan et al. response at the onset of a sound be specialized to respond to particle (2004), for the types of seismic airguns followed by habituation and a return to displacement components of an and arrays involved with the proposed normal behavior after the sound ceased. impinging sound field and not to the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77797

pressure component (Popper et al., and adult cephalopods (McCauley et al., reduced catch rates of shrimp shortly 2001; see also Appendix E of NSF’s EA). 2000a,b) exposed to seismic survey after exposure to seismic surveys; The only information available on the sound have not resulted in any however, other studies have not impacts of seismic surveys on marine significant pathological impacts on the observed any significant changes in invertebrates involves studies of animals. It has been suggested that shrimp catch rate (Andriguetto-Filho et individuals; there have been no studies exposure to commercial seismic survey al., 2005). Similarly, Parry and Gason at the population scale. Thus, available activities has injured giant squid (2006) did not find any evidence that information provides limited insight on (Guerra et al., 2004), but the article lobster catch rates were affected by possible real-world effects at the provides little evidence to support this seismic surveys. Any adverse effects on regional or ocean scale. The most claim. Andre et al. (2011) exposed crustacean and cephalopod behavior or important aspect of potential impacts cephalopods, primarily cuttlefish, to fisheries attributable to seismic survey concerns how exposure to seismic continuous 50 to 400 Hz sinusoidal sound depend on the species in survey sound ultimately affects wave sweeps for two hours while question and the nature of the fishery invertebrate populations and their captive in relatively small tanks, and (season, duration, fishing method). viability, including availability to reported morphological and fisheries. ultrastructural evidence of massive Proposed Mitigation Literature reviews of the effects of acoustic trauma (i.e., permanent and In order to issue an Incidental Take seismic and other underwater sound on substantial alterations of statocyst Authorization (ITA) under section invertebrates were provided by sensory hair cells). The received SPL 101(a)(5)(D) of the MMPA, NMFS must Moriyasu et al. (2004) and Payne et al. was reported as 157+/¥5 dB re 1 mPa, set forth the permissible methods of (2008). The following sections provide a with peak levels at 175 dB re 1 mPa. As taking pursuant to such activity, and synopsis of available information on the in the McCauley et al. (2003) paper on other means of effecting the least effects of exposure to seismic survey sensory hair cell damage in pink practicable impact on such species or sound on species of decapod snapper as a result of exposure to stock and its habitat, paying particular crustaceans and cephalopods, the two seismic sound, the cephalopods were attention to rookeries, mating grounds, taxonomic groups of invertebrates on subjected to higher sound levels than and areas of similar significance, and which most such studies have been they would be under natural conditions, the availability of such species or stock conducted. The available information is and they were unable to swim away for taking for certain subsistence uses. from studies with variable degrees of from the sound source. L–DEO has based the mitigation scientific soundness and from anecdotal Physiological Effects—Physiological measures described herein, to be information. A more detailed review of effects refer mainly to biochemical implemented for the proposed seismic the literature on the effects of seismic responses by marine invertebrates to survey, on the following: survey sound on invertebrates is acoustic stress. Such stress potentially (1) Protocols used during previous provided in Appendix E of NSF’s EA. could affect invertebrate populations by L–DEO seismic research cruises as Pathological Effects—In water, lethal increasing mortality or reducing approved by NMFS; and sub-lethal injury to organisms reproductive success. Primary and (2) Previous IHA applications and exposed to seismic survey sound secondary stress responses (i.e., changes IHAs approved and authorized by appears to depend on at least two in haemolymph levels of enzymes, NMFS; and features of the sound source: (1) the proteins, etc.) of crustaceans have been (3) Recommended best practices in received peak pressure; and (2) the time noted several days or months after Richardson et al. (1995), Pierson et al. required for the pressure to rise and exposure to seismic survey sounds (1998), and Weir and Dolman (2007). decay. Generally, as received pressure (Payne et al., 2007). The periods To reduce the potential for increases, the period for the pressure to necessary for these biochemical changes disturbance from acoustic stimuli rise and decay decreases, and the to return to normal are variable and associated with the activities, L–DEO chance of acute pathological effects depend on numerous aspects of the and/or its designees has proposed to increases. For the type of airgun array biology of the species and of the sound implement the following mitigation planned for the proposed program, the stimulus. measures for marine mammals: pathological (mortality) zone for Behavioral Effects—There is (1) Proposed exclusion zones; crustaceans and cephalopods is increasing interest in assessing the (2) Power-down procedures; expected to be within a few meters of possible direct and indirect effects of (3) Shut-down procedures; and the seismic source, at most; however, seismic and other sounds on (4) Ramp-up procedures. very few specific data are available on invertebrate behavior, particularly in Planning Phase—This seismic survey levels of seismic signals that might relation to the consequences for was originally proposed for 2010. A damage these animals. This premise is fisheries. Changes in behavior could National Environmental Policy Act based on the peak pressure and rise/ potentially affect such aspects as (NEPA) document was prepared for the decay time characteristics of seismic reproductive success, distribution, proposed survey and was posted for airgun arrays currently in use around susceptibility to predation, and public comment on NSF’s Web site. No the world. catchability by fisheries. Studies public comments were received by NSF Some studies have suggested that investigating the possible behavioral in response to the public comment seismic survey sound has a limited effects of exposure to seismic survey period during that process. Because of pathological impact on early sound on crustaceans and cephalopods ship maintenance issues, weather, and developmental stages of crustaceans have been conducted on both uncaged timing constraints of the IHA process, (Pearson et al., 1994; Christian et al., and caged animals. In some cases, the proposed survey was unable to be 2003; DFO, 2004). However, the impacts invertebrates exhibited startle responses supported on the Langseth in 2010 as appear to be either temporary or (e.g., squid in McCauley et al., 2000a,b). proposed, and as a result the survey was insignificant compared to what occurs In other cases, no behavioral impacts deferred to a future time when the ship under natural conditions. Controlled were noted (e.g., crustaceans in would be able to support the effort. An field experiments on adult crustaceans Christian et al., 2003, 2004; DFO 2004). IHA application was submitted to (Christian et al., 2003, 2004; DFO, 2004) There have been anecdotal reports of NMFS for the proposed 2010 survey,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77798 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

however it was withdrawn when it reported by Tolstoy et al. (2009). The • A PSVO has visually observed the became apparent the ship would not be correction factors used were the ratios of animal leave the EZ, or able to support the survey. An ESA the 160, 180, and 190 dB distances from • A PSVO has not sighted the animal section 7 consultation request that was the modeled results for the 6,600 in3 within the EZ for 15 min for species also initiated with NMFS was airgun array towed at 6 m versus 9 m, with shorter dive durations (i.e., small withdrawn. from LGL (2008): 1.285, 1.338, and odontocetes or pinnipeds), or 30 min for Subsequently, the PIs worked with L– 1.364, respectively. species with longer dive durations (i.e., DEO and NSF to identify potential time Measurements were not reported for a mysticetes and large odontocetes, periods to carry out the survey taking single airgun, so model results will be including sperm, pygmy sperm, dwarf into consideration key factors such as used. The L–DEO model does not allow sperm, killer, and beaked whales). environmental conditions (i.e., the for bottom interactions, and thus is most During airgun operations following a seasonal presence of marine mammals, directly applicable to deep water and to power down or shut-down whose sea turtles, and sea birds), weather relatively short ranges. A detailed duration has exceeded the time limits conditions, equipment, and optimal description of the modeling effort is specified previously, L–DEO will ramp- timing for other proposed seismic predicted in Appendix A of the EA. up the airgun array gradually (see Shut- surveys using the Langseth. Most Based on the corrected propagation down and Ramp-up Procedures). marine mammal species are expected to measurements (airgun array) and Shut-down Procedures—L–DEO will occur in the area year-round, so altering modeling (single airgun), the distances shut down the operating airgun(s) if a the timing of the proposed project likely from the source where sound levels are marine mammal is seen within or would result in no net benefits for those predicted to be 190, 180, and 160 dB re approaching the EZ for the single species. After considering what energy 1 mPa (rms) were determined (see Table airgun. L–DEO will implement a shut- source level was necessary to achieve 1 above). The 180 and 190 dB radii are down: (1) If an animal enters the EZ of the the research goals, the PIs determined shut-down criteria applicable to single airgun after L–DEO has initiated the use of the 36-airgun array with a cetaceans and pinnipeds, respectively, 3 a power-down; or total volume of 6,600 in would be as specified by NMFS (2000); these required. Given the research goals, (2) If a an animal is initially seen levels were used to establish the EZs. If within the EZ of the single airgun when location of the survey, and associated the Protected Species Visual Observer deep water, this energy source level was more than one airgun (typically the full (PSVO) detects marine mammal(s) airgun array) is operating. viewed appropriate. The draft NEPA within or about to enter the appropriate documentation prepared for the L–DEO will not resume airgun EZ, the airguns will be powered-down activity until the marine mammal has proposed 2010 survey forms the basis (or shut-down, if necessary) for this assessment; however, it has been cleared the EZ, or until the PSVO is immediately. updated to reflect current scientific confident that the animal has left the Power-down Procedures—A power- information and any revisions of the vicinity of the vessel. Criteria for down involves decreasing the number of proposed survey and timing. NEPA judging that the animal has cleared the airguns in use to one airgun, such that documentation for the proposed 2012 EZ will be as described in the preceding the radius of the 180 dB (or 190 dB) survey will also be open for a public section. comment period, and an ESA section 7 zone is decreased to the extent that Considering the conservation status consultation has been requested and marine mammals are no longer in or for the North Pacific right whale, the reinitiated. about to enter the EZ. A power-down of airguns will be shut-down immediately Proposed Exclusion Zones—Received the airgun array can also occur when the in the unlikely event that this species is sound levels have been predicted by L– vessel is moving from one seismic line observed, regardless of the distance DEO, in relation to distance and to another. During a power-down for from the Langseth. Ramp-up will only direction from the airguns, for the 36 mitigation, L–DEO will operate one begin if the right whale has not been airgun array and for the single 1900LL airgun. The continued operation of one seen for 30 min. 40 in3 airgun, which will be used during airgun is intended to alert marine Ramp-up Procedures—L–DEO will power-downs. Results were recently mammals to the presence of the seismic follow a ramp-up procedure when the reported for propagation measurements vessel in the area. In contrast, a shut- airgun array begins operating after a of pulses from the 36 airgun array in down occurs when all airgun activity is specified period without airgun two water depths (approximately 1,600 suspended. operations or when a power-down shut m and 50 m [5,249 and 164 ft]) in the If the PSVO detects a marine mammal down has exceeded that period. L–DEO GOM in 2007 to 2008 (Tolstoy et al., outside the EZ, but it is likely to enter proposes that, for the present cruise, 2009). It would be prudent to use the the EZ, L–DEO will power-down the this period would be approximately corrected empirical values that resulted airguns before the animal is within the eight min. This period is based on the to determine EZs for the airgun array. EZ. Likewise, if a mammal is already 180 dB radius (940 m) for the 36 airgun Results of the propagation within the EZ, when first detected L– array towed at a depth of 9 m in relation measurements (Tolstoy et al., 2009) DEO will power-down the airguns to the minimum planned speed of the showed that radii around the airguns for immediately. During a power-down of Langseth while shooting (7.4 km/hr). L– various received levels varied with the airgun array, L–DEO will operate the DEO has used similar periods water depth. In addition, propagation single 40 in3 airgun. If a marine (approximately 8 to 10 min) during varies with array tow depth. The mammal is detected within or near the previous L–DEO surveys. empirical values that resulted from smaller EZ around that single airgun Ramp-up will begin with the smallest Tolstoy et al. (2009) are used here to (Table 1), L–DEO will shut-down the airgun in the array (40 in3). Airguns will determine EZs for the 36 airgun array. airgun (see next section). be added in a sequence such that the However, the depth of the array was Following a power-down, L–DEO will source level of the array will increase in different in the GOM calibration study not resume airgun activity until the steps not exceeding six dB per five min (6 m [19.7 ft]) than in the proposed marine mammal has cleared the EZ. L– period over a total duration of survey (9 m); thus, correction factors DEO will consider the animal to have approximately 35 min. During ramp-up, have been applied to the distances cleared the EZ if: the Protected Species Observers will

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77799

monitor the EZ, and if marine mammals ‘‘requirements pertaining to the will take place during ongoing daytime are sighted, L–DEO will implement a monitoring and reporting of such operations and nighttime ramp-ups of power-down or shut-down as though taking.’’ The MMPA implementing the airguns. During the majority of the full airgun array were operational. regulations at 50 CFR 216.104 (a)(13) seismic operations, two PSVOs will be If the complete EZ has not been indicate that requests for IHAs must on duty from the observation tower to visible for at least 30 min prior to the include the suggested means of monitor marine mammals near the start of operations in either daylight or accomplishing the necessary monitoring seismic vessel. Use of two simultaneous nighttime, L–DEO will not commence and reporting that will result in PSVOs will increase the effectiveness of the ramp-up unless at least one airgun increased knowledge of the species and detecting animals near the source (40 in3 or similar) has been operating of the level of taking or impacts on vessel. However, during meal times and during the interruption of seismic populations of marine mammals that are bathroom breaks, it is sometimes survey operations. Given these expected to be present in the action difficult to have two PSVOs on effort, provisions, it is likely that the airgun area. but at least one PSVO will be on duty. array will not be ramped-up from a PSVO(s) will be on duty in shifts of Monitoring complete shut-down at night or in thick duration no longer than 4 hr. fog, because the outer part of the EZ for L–DEO proposes to sponsor marine Two PSVOs will also be on visual that array will not be visible during mammal monitoring during the watch during all nighttime ramp-ups of those conditions. If one airgun has proposed project, in order to implement the seismic airguns. A third PSAO will operated during a power-down period, the proposed mitigation measures that monitor the PAM equipment 24 hours a ramp-up to full power will be require real-time monitoring, and to day to detect vocalizing marine permissible at night or in poor visibility, satisfy the anticipated monitoring mammals present in the action area. In on the assumption that marine requirements of the IHA. L–DEO’s summary, a typical daytime cruise mammals will be alerted to the proposed ‘‘Monitoring Plan’’ is would have scheduled two PSVOs on approaching seismic vessel by the described below this section. L–DEO duty from the observation tower, and a sounds from the single airgun and could understands that this monitoring plan third PSAO on PAM. Other crew will move away. L–DEO will not initiate a will be subject to review by NMFS, and also be instructed to assist in detecting ramp-up of the airguns if a marine that refinements may be required. The marine mammals and implementing mammal is sighted within or near the monitoring work described here has mitigation requirements (if practical). applicable EZs during the day or close been planned as a self-contained project Before the start of the seismic survey, to the vessel at night. independent of any other related the crew will be given additional NMFS has carefully evaluated the monitoring projects that may be instruction on how to do so. applicant’s proposed mitigation occurring simultaneously in the same The Langseth is a suitable platform for measures and has considered a range of regions. L–DEO is prepared to discuss marine mammal observations. When other measures in the context of coordination of its monitoring program stationed on the observation platform, ensuring that NMFS prescribes the with any related work that might be the eye level will be approximately 21.5 means of effecting the least practicable done by other groups insofar as this is m (70.5 ft) above sea level, and the adverse impact on the affected marine practical and desirable. PSVO will have a good view around the entire vessel. During daytime, the mammal species and stocks and their Vessel-Based Visual Monitoring habitat. NMFS’s evaluation of potential PSVOs will scan the area around the measures included consideration of the PSVOs will be based aboard the vessel systematically with reticle following factors in relation to one seismic source vessel and will watch for binoculars (e.g., 7 x 50 Fujinon), Big-eye another: marine mammals near the vessel during binoculars (25 x 150), and with the (1) The manner in which, and the daytime airgun operations and during naked eye. During darkness, night degree to which, the successful any ramp-ups of the airguns at night. vision devices (NVDs) will be available implementation of the measure is PSVOs will also watch for marine (ITT F500 Series Generation 3 expected to minimize adverse impacts mammals near the seismic vessel for at binocular-image intensifier or to marine mammals; least 30 min prior to the start of airgun equivalent), when required. Laser range- (2) The proven or likely efficacy of the operations after an extended shut-down finding binoculars (Leica LRF 1200 laser specific measure to minimize adverse (i.e., greater than approximately 8 min rangefinder or equivalent) will be impacts as planned; and for this proposed cruise). When feasible, available to assist with distance (3) The practicability of the measure PSVOs will conduct observations during estimation. Those are useful in training for applicant implementation. daytime periods when the seismic observers to estimate distances visually, Based on NMFS’s evaluation of the system is not operating for comparison but are generally not useful in applicant’s proposed measures, as well of sighting rates and behavior with and measuring distances to animals directly; as other measures considered by NMFS without airgun operations and between that is done primarily with the reticles or recommended by the public, NMFS acquisition periods. Based on PSVO in the binoculars. has preliminarily determined that the observations, the airguns will be When marine mammals are detected proposed mitigation measures provide powered-down or shut-down when within or about to enter the designated the means of effecting the least marine mammals are observed within or EZ, the airguns will immediately be practicable adverse impacts on marine about to enter a designated EZ. The EZ powered-down or shut-down if mammal species or stocks and their is a region in which a possibility exists necessary. The PSVO(s) will continue to habitat, paying particular attention to of adverse effects on animal hearing or maintain watch to determine when the rookeries, mating grounds, and areas of other physical effects. animal(s) are outside the EZ by visual similar significance. During seismic operations in the confirmation. Airgun operations will CNMI, at least four PSOs (PSVO and/or not resume until the animal is Proposed Monitoring and Reporting Protected Species Acoustic Observer confirmed to have left the EZ, or if not In order to issue an ITA for an [PSAO]) will be based aboard the observed after 15 min for species with activity, section 101(a)(5)(D) of the Langseth. L–DEO will appoint the PSOs shorter dive durations (small MMPA states that NMFS must set forth with NMFS’s concurrence. Observations odontocetes and pinnipeds) or 30 min

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77800 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

for species with longer dive durations the acoustic detection system by sighting, heading (if consistent), bearing (mysticetes and large odontocetes, listening to the signals from two and distance from seismic vessel, including sperm, pygmy sperm, dwarf channels via headphones and/or sighting cue, apparent reaction to the sperm, killer, and beaked whales). speakers and watching the real-time airguns or vessel (e.g., none, avoidance, spectrographic display for frequency approach, paralleling, etc.), and Passive Acoustic Monitoring (PAM) ranges produced by cetaceans. The behavioral pace. PAM will complement the visual PSAO monitoring the acoustical data 2. Time, location, heading, speed, monitoring program, when practicable. will be on shift for one to six hours at activity of the vessel, sea state, Visual monitoring typically is not a time. All PSOs are expected to rotate visibility, and sun glare. effective during periods of poor through the PAM position, although the The data listed under (2) will also be visibility or at night, and even with expert PSAO will be on PAM duty more recorded at the start and end of each good visibility, is unable to detect frequently. observation watch, and during a watch marine mammals when they are below When a vocalization is detected while whenever there is a change in one or the surface or beyond visual range. visual observations are in progress, the more of the variables. Acoustical monitoring can be used in PSAO will contact the PSVO All observations and power-downs or addition to visual observations to immediately, to alert him/her to the shut-downs will be recorded in a improve detection, identification, and presence of cetaceans (if they have not standardized format. Data will be localization of cetaceans. The acoustic already been seen), and to allow a entered into an electronic database. The monitoring will serve to alert visual power-down or shut-down to be accuracy of the data entry will be observers (if on duty) when vocalizing initiated, if required. When bearings verified by computerized data validity cetaceans are detected. It is only useful (primary and mirror-image) to calling checks as the data are entered and by when marine mammals call, but it can cetacean(s) are determined, the bearings subsequent manual checking of the be effective either by day or by night, will be related to the PSVO(s) to help database. These procedures will allow and does not depend on good visibility. him/her sight the calling animal. The initial summaries of data to be prepared It will be monitored in real time so that information regarding the call will be during and shortly after the field the PSVOs can be advised when entered into a database. Data entry will program, and will facilitate transfer of cetaceans are detected. include an acoustic encounter the data to statistical, graphical, and The PAM system consists of hardware identification number, whether it was other programs for further processing (i.e., hydrophones) and software. The linked with a visual sighting, date, time and archiving. ‘‘wet end’’ of the system consists of a when first and last heard and whenever Results from the vessel-based towed hydrophone array that is any additional information was observations will provide: connected to the vessel by a tow cable. recorded, position and water depth 1. The basis for real-time mitigation The tow cable is 250 m (820.2 ft) long, when first detected, bearing if (airgun power-down or shut-down). and the hydrophones are fitted in the determinable, species or species group 2. Information needed to estimate the last 10 m (32.8 ft) of cable. A depth (e.g., unidentified dolphin, sperm number of marine mammals potentially gauge is attached to the free end of the whale), types and nature of sounds taken by harassment, which must be cable, and the cable is typically towed heard (e.g., clicks, continuous, sporadic, reported to NMFS. at depths less than 20 m (65.6 ft). The whistles, creaks, burst pulses, strength 3. Data on the occurrence, array will be deployed from a winch of signal, etc.), and any other notable distribution, and activities of marine located on the back deck. A deck cable information. The acoustic detection can mammals in the area where the seismic will connect from the winch to the main also be recorded for further analysis. study is conducted. computer laboratory where the acoustic 4. Information to compare the station, signal conditioning, and PSVO Data and Documentation distance and distribution of marine processing system will be located. The PSVOs will record data to estimate mammals relative to the source vessel at acoustic signals received by the the numbers of marine mammals times with and without seismic activity. hydrophones are amplified, digitized, exposed to various received sound 5. Data on the behavior and and then processed by the Pamguard levels and to document apparent movement patterns of marine mammals software. The system can detect marine disturbance reactions or lack thereof. seen at times with and without seismic mammal vocalizations at frequencies up Data will be used to estimate numbers activity. to 250 kHz. of animals potentially ‘taken’ by L–DEO will submit a report to NMFS One PSAO, an expert bioacoustician harassment (as defined in the MMPA). and NSF within 90 days after the end of in addition to the four PSVOs, with They will also provide information the cruise. The report will describe the primary responsibility for PAM, will be needed to order a power-down or shut- operations that were conducted and onboard the Langseth. The towed down of the airguns when a marine sightings of marine mammals near the hydrophones will ideally be monitored mammal is within or near the EZ. operations. The report will provide full by the PSAO 24 hours per day while at Observations will also be made during documentation of methods, results, and the proposed seismic survey area during daytime periods when the Langseth is interpretation pertaining to all airgun operations, and during most underway without seismic operations. monitoring. The 90-day report will periods when the Langseth is underway In addition to transits to, from, and summarize the dates and locations of while the airguns are not operating. through the study area, there will also seismic operations, and all marine However, PAM may not be possible if be opportunities to collect baseline mammal sightings (dates, times, damage occurs to the array or back-up biological data during the deployment locations, activities, associated seismic systems during operations. The primary and recovery of OBSs. survey activities). The report will also PAM streamer on the Langseth is a When a sighting is made, the include estimates of the number and digitial hydrophone streamer. Should following information about the sighting nature of exposures that could result in the digital streamer fail, back-up will be recorded: ‘‘takes’’ of marine mammals by systems should include an analog spare 1. Species, group size, age/size/sex harassment or in other ways. streamer and a hull-mounted categories (if determinable), behavior In the unanticipated event that the hydrophone. One PSAO will monitor when first sighted and after initial specified activity clearly causes the take

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77801

of a marine mammal in a manner Activities may continue while NMFS marine mammals that could be affected prohibited by this IHA, such as an reviews the circumstances of the during the proposed seismic program. injury (Level A harassment), serious incident. NMFS will work with L–DEO The estimates are based on a injury, or mortality (e.g., ship-strike, to determine whether modifications in consideration of the number of marine gear interaction, and/or entanglement), the activities are appropriate. mammals that could be disturbed L–DEO will immediately cease the In the event that L–DEO discovers an appreciably by operations with the 36 specified activities and immediately injured or dead marine mammal, and airgun array to be used during report the incident to the Chief of the the lead PSO determines that the injury approximately 2,800 km of survey lines Permits and Conservation Division, or death is not associated with or related in the CNMI. Office of Protected Resources, NMFS at to the activities authorized in the IHA L–DEO assumes that, during (301) 427–8401 and/or by email to (e.g., previously wounded animal, simultaneous operations of the airgun [email protected] and carcass with moderate to advanced array and the other sources, any marine [email protected], and the decomposition, or scavenger damage), mammals close enough to be affected by NMFS Pacific Islands Regional Office L–DEO will report the incident to the the MBES and SBP would already be Stranding Coordinator at (808) 944– Chief of the Permits and Conservation affected by the airguns. However, 2269 ([email protected]). The Division, Office of Protected Resources, whether or not the airguns are operating report must include the following NMFS, at (301) 427–8401, and/or by simultaneously with the other sources, information: email to [email protected] and marine mammals are expected to exhibit • Time, date, and location (latitude/ [email protected], and the no more than short-term and longitude) of the incident; NMFS Pacific Islands Regional Office inconsequential responses to the MBES • Name and type of vessel involved; (808) 944–2269), and/or by email to the and SBP given their characteristics (e.g., • Vessel’s speed during and leading Pacific Islands Regional Stranding narrow, downward-directed beam) and up to the incident; Coordinator other considerations described • Description of the incident; ([email protected]), within 24 previously. Such reactions are not • Status of all sound source use in the hours of discovery. L–DEO will provide considered to constitute ‘‘taking’’ 24 hours preceding the incident; photographs or video footage (if (NMFS, 2001). Therefore, L–DEO • Water depth; available) or other documentation of the provides no additional allowance for • Environmental conditions (e.g., stranded animal sighting to NMFS and animals that could be affected by sound wind speed and direction, Beaufort sea the Marine Mammal Stranding Network. sources other than airguns. The only systematic marine mammal state, cloud cover, and visibility); Estimated Take by Incidental • Description of all marine mammal survey conducted in the CNMI was a Harassment ship-based survey conducted for the observations in the 24 hours preceding U.S. Navy during January to April, 2007, the incident; Except with respect to certain in four legs: January 16 to February 2, • Species identification or activities not pertinent here, the MMPA February 6 to 25, March 1 to 20, and description of the animal(s) involved; defines ‘‘harassment’’ as: March 24 to 12 (SRS–Parsons et al., • Fate of the animal(s); and any act of pursuit, torment, or annoyance 2007; Fulling et al., 2011). The cruise • Photographs or video footage of the which (i) has the potential to injure a marine area was defined by the boundaries 10 animal(s) (if equipment is available). mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to 18° North and 142 to 148° East, Activities shall not resume until NMFS to disturb a marine mammal or marine encompassing an area approximately is able to review the circumstances of mammal stock in the wild by causing 585,000 km2 (170,558.7 nmi2) including the prohibited take. NMFS shall work disruption of behavioral patterns, including, the islands of Guam and the southern with L–DEO to determine what is but not limited to, migration, breathing, CNMI almost as far north as Pagan. The necessary to minimize the likelihood of nursing, breeding, feeding, or sheltering systematic line-transect survey effort further prohibited take and ensure [Level B harassment]. was conducted from the flying bridge MMPA compliance. L–DEO may not Only take by Level B harassment is (10.5 m [34.5 ft] above sea level) of the resume their activities until notified by anticipated and proposed to be 56 m (183.7 ft) long M/V Kahana using NMFS via letter or email, or telephone. authorized as a result of the proposed standard line-transect protocols In the event that L–DEO discovers an marine seismic survey in the CNMI. developed by NMFS Southwest injured or dead marine mammal, and Acoustic stimuli (i.e., increased Fisheries Science Center (SWFSC). the lead PSO determines that the cause underwater sound) generated during the Observers visually surveyed 11,033 km of the injury or death is unknown and operation of the seismic airgun array (5,957.3 nmi) of trackline, mostly in the death is relatively recent (i.e., in less may have the potential to cause marine high Beaufort sea states (88% of the than a moderate state of decomposition mammals in the survey area to be time in the Beaufort sea states 4 to 6). as described in the next paragraph), exposed to sounds at or greater than 160 L–DEO used the densities calculated L–DEO will immediately report the dB or cause temporary, short-term in Fulling et al. (2011) for the 12 species incident to the Chief of the Permits and changes in behavior. There is no sighted in that survey. For eight species Conservation Division, Office of evidence that the planned activities not sighted in that survey but expected Protected Resources, NMFS, at (301) could result in injury, serious injury, or to occur in the CNMI, relevant densities 427–8401, and/or by email to mortality within the specified are available for the ‘‘outer EEZ [email protected] and geographic area for which L–DEO seeks stratum’’ of Hawaiian waters, based on [email protected], and the the IHA. The required mitigation and a 13,500 km (7,289.4 nmi) survey NMFS Pacific Islands Regional Office monitoring measures will minimize any conducted by NMFS SWFSC in August (808) 944–2269) and/or by email to the potential risk for injury, serious injury, to November, 2002 (Barlow, 2006). Pacific Islands Regional Stranding or mortality. Another potential source of relevant Coordinator The following sections describe densities are the SWFSC surveys ([email protected]). The report L–DEO’s methods to estimate take by conducted in the ETP during summer/ must include the same information incidental harassment and present the fall 1986 to 1996 (Ferguson and Barlow, identified in the paragraph above. applicant’s estimates of the numbers of 2001, 2003). However, for five of the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77802 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

remaining seven species that could 160 dB re 1 mPa (rms) are precautionary, study area during the course of the occur in the survey area, there were no and probably overestimate the actual survey, the actual number of individuals sightings in more than 50 offshore numbers of marine mammals that might exposed could be underestimated. In tropical (< 20° latitude) 5° × 5° strata. be involved. These estimates also addition, the approach assumes that no The short-beaked common dolphin was assume that there will be no weather, cetaceans will move away from or sighted in a number of offshore tropical equipment, or mitigation delays, which toward the trackline as the Langseth strata, so its density was calculated as is highly unlikely. approaches in response to increasing the effort-weighted mean of densities in L–DEO estimated the number of sound levels prior to the time the levels the 17 offshore 5° × 5° strata between different individuals that may be reach 160 dB, which will result in 10° North and 20° North (Ferguson and exposed to airgun sounds with received overestimates for those species known Barlow, 2003). levels greater than or equal to 160 dB re to avoid seismic vessels. Table 2 (Table 3 of the IHA 1 mPa (rms) on one or more occasions by Table 3 (Table 4 of the IHA application) gives the estimated considering the total marine area that application) shows the estimates of the densities of each marine mammal would be within the 160 dB radius number of different individual marine species expected to occur in the waters around the operating airgun array on at mammals that potentially could be of the proposed survey area. L–DEO least one occasion and the expected exposed to greater than or equal to 160 used the densities reported by Fulling et density of marine mammals. The dB re 1 mPa (rms) during the seismic al. (2011), Barlow (2006), and Ferguson number of possible exposures survey if no animals moved away from and Barlow (2001, 2003), and those have (including repeated exposures of the the survey vessel. The requested take been corrected, by the original authors, same individuals) can be estimated by authorization, given in Table 3 (the far for detectability bias, and in two of the considering the total marine area that right column of Table 4 of the IHA three areas, for availability bias. would be within the 160 dB radius application), has been increased to the Detectability bias is associated with around the operating airguns, including mean group size for the particular diminishing sightability with increasing areas of overlap. In the proposed survey, species in cases where the calculated lateral distance from the trackline (ƒ[0]). the seismic lines are widely spaced in number of individuals exposed was Availability bias refers to the fact that the survey area, so few individual between one and the mean group size. there is less-than-100% probability of marine mammals would be exposed Mean group sizes are from the same sighting an animal that is present along more than once during the survey. The source as densities (see Table 3 of L– the survey trackline ƒ(0), and it is area including overlap is only 1.4 times DEO’s application). For the minke measured by g(0). Fulling et al. (2011) the area excluding overlap, so a marine whale, which was not sighted during did not correct the Marianas densities mammal that stayed in the survey area the January to April, 2007 survey in the for g(0), which, for all but large (≤ 20) during the entire survey could be waters of Guam and the southern CNMI, groups of dolphins (where g[0] = 1), exposed approximately two times, on but was the baleen whale species most resulted in underestimates of density. average. Thus, few individual marine frequently detected acoustically, the There is some uncertainty about the mammals would be exposed more than requested take authorization (given in representativeness of the density data once during the survey. However, it is the far right column of Table 5 of L– and the assumptions used in the unlikely that a particular animal would DEO’s application) has also been calculations. For example, the seasonal stay in the area during the entire survey. increased to the mean group size. timing of the surveys either overlapped The number of different individuals The estimate of the number of (Marianas) or followed (Hawaii and potentially exposed to received levels individual cetaceans that could be ETP) the proposed surveys. Also, most greater than or equal to 160 re 1 mPa exposed to seismic sounds with of the Marianas survey was in high sea (rms) was calculated by multiplying: received levels greater than or equal to states that would have presented (1) The expected species density, 160 dB re 1 mPa (rms) during the detection of many marine mammals, times proposed survey is 1,487 (see Table 4 of especially cryptic species such as (2) The anticipated area to be the IHA application). That total includes beaked whales and Kogia spp. However, ensonified to that level during airgun 14 baleen whales, 6 of which are sei the approach used here is believed to be operations excluding overlap. whales (0.06% of the regional the best available approach. The area expected to be ensonified population). In addition, 24 sperm L–DEO’s estimates of exposures to was determined by entering the planned whales or 0.08% of the regional various sound levels assume that the survey lines into a MapInfo GIS, using population, could be exposed during the proposed surveys will be fully the GIS to identify the relevant areas by survey, and 165 beaked whales, completed; in fact, the ensonified areas ‘‘drawing’’ the applicable 160 dB buffer including Cuvier’s, Longman’s, and calculated using the planned number of (see Table 1 of the IHA application) Blainville’s beaked whales. Most line-km have been increased by 25% to around each seismic line, and then (72.1%) of the cetaceans potentially accommodate lines that may need to be calculating the total area within the exposed are delphinids; pantropical repeated, equipment testing, etc. As is buffers. Areas of overlap (because of spotted, short-beaked common, striped, typical during offshore ship surveys, lines being closer together than the 160 and Fraser’s dolphins, and melon- inclement weather and equipment dB radius) were included only once headed whales are estimated to be the malfunctions are likely to cause delays when estimating the number of most common species in the area, with and may limit the number of useful line- individuals exposed. estimates of 443, 189, 121, 88, and 84, kilometers of seismic operations that Applying the approach described which would represent 0.06%, 0.01%, can be undertaken. Furthermore, any above, approximately 15,685 km 2 (4,573 0.01%, 0.03%, and 0.19% of the marine mammal sightings within or nmi 2) (approximately 19,607 km 2 regional populations, respectively. near the designated EZs will result in [5,716.5 nmi 2] including the 25% In monitoring reports for seismic the power-down or shut-down of contingency) would be within the 160 surveys, NMFS sometimes receives seismic operations as a mitigation dB isopleth on one or more occasions reports of unidentified species of marine measure. Thus, the following estimates during the survey. Because this mammals documented within areas of the numbers of marine mammals approach does not allow for turnover in around active airgun arrays and the potentially exposed to sound levels of the marine mammal populations in the animals may have been potentially

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77803

exposed to received levels of greater include the take unidentified large of takes for unidentified marine than or equal to 160 dB (rms) (i.e., the whales (i.e., minke, Bryde’s, sei, and mammals, NMFS added up all of the threshold for Level B harassment). sperm whales), unidentified beaked calculated exposures and requested These animals may be reported as an whales (i.e., Cuvier’s, Longman’s, and takes for each marine mammal species unidentified species of marine mammal Blainville’s beaked whales), in the determined ‘‘unidentified’’ by PSOs due to poor environmental unidentified Kogia spp. (i.e., pygmy and categories. The total estimated number conditions (e.g., high Beaufort sea state/ dwarf sperm whales), unidentified of unidentified large whales, wind force, sun glare, clouds, rain, fog, blackfish (i.e., melon-headed, pygmy unidentified Kogia spp. unidentified darkness, etc.), the distance of the killer, false killer, killer, and short- beaked whales, unidentified blackfish, animal(s) relative to the vessel, brief finned pilot whales), and unidentified and unidentified small dolphins are 38, activity of animal(s) at the surface, small dolphins (rough-toothed, 212, 165, 143, and 929, respectively, animal(s) avoidance behavior and/or bottlenose, pantropical spotted, spinner, which would represent less than 2% of lack of expertise of PSOs in identifying striped, Fraser’s, short-beaked common, the regional population for any species the species of marine mammals that and Risso’s dolphins) for L–DEO’s of marine mammals expected to occur may occur in the study area. Due to planned seismic survey in the CNMI. In in the proposed study area. these circumstances, NMFS proposes to order to estimate the potential number BILLING CODE 3510–22–P

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77804 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4725 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES EN14DE11.004 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77805

Encouraging and Coordinating (4) The status of stock or species of notice, the activity is not expected to Research marine mammals (i.e., depleted, not impact rates of recruitment or survival L–DEO and NSF will coordinate the depleted, decreasing, increasing, stable, for any affected species or stock. planned marine mammal monitoring impact relative to the size of the Additionally, the seismic survey will program associated with the seismic population); not adversely impact marine mammal survey in the CNMI with other parties (5) Impacts on habitat affecting rates habitat. that may have an interest in the area of recruitment/survival; and Many animals perform vital functions, and/or be conducting marine mammal (6) The effectiveness of monitoring such as feeding, resting, traveling, and studies in the same region during the and mitigation measures. socializing, on a diel cycle (i.e., 24 hr proposed seismic survey. L–DEO and For reasons stated previously in this cycle). Behavioral reactions to noise NSF have coordinated, and will document, the specified activities exposure (such as disruption of critical continue to coordinate with other associated with the marine seismic life functions, displacement, or applicable agencies, and will comply survey are not likely to cause PTS, or avoidance of important habitat) are with their requirements. Actions of this other non-auditory injury, serious more likely to be significant if they last type that are underway include (but are injury, or death because: more than one diel cycle or recur on not limited to) the following: (1) The likelihood that, given subsequent days (Southall et al., 2007). • Contact the U.S. Army Corps of sufficient notice through relatively slow While seismic operations are Engineers (ACOE), to confirm that no ship speed, marine mammals are anticipated to occur on consecutive permits will be required by the ACOE expected to move away from a noise days, the entire duration of the survey for the proposed survey. source that is annoying prior to its is not expected to last more than • Contact CNMI history preservation becoming potentially injurious; approximately 46 days (i.e., 16 days of office regarding the National Historic (2) The potential for temporary or seismic operations, 2 days of transit, Preservation Act. permanent hearing impairment is and 25 days of deployment and retrieval • Contact the CNMI Coastal relatively low and would likely be of OBSs and maintenance) and the Resources Management Office and avoided through the incorporation of Langseth will be continuously moving submit a Scientific Research Permit the required monitoring and mitigation along planned tracklines that are application. measures (described above); geographically spread-out. Therefore, • Contact U.S. Navy Pacific Fleet (3) The fact that cetaceans would have the seismic survey will be increasing Environmental and Geo-Marine, Inc. for to be closer than 940 m (3,084 ft) in sound levels in the marine environment recent information on cetacean surveys deep water when the 36 airgun array is in a relatively small area surrounding in the area. in use at 9 m tow depth, and 40 m the vessel, which is constantly (131.2 ft) in deep water when the single travelling over far distances, for a Negligible Impact and Small Numbers airgun is in use at 9 m from the vessel relatively short time period (i.e., several Analysis and Determination to be exposed to levels of sound weeks) in the study area. NMFS has defined ‘‘negligible believed to have even a minimal chance Of the 27 marine mammal species impact’’ in 50 CFR 216.103 as ‘‘ * * * of causing PTS; and under NMFS jurisdiction that are an impact resulting from the specified (4) The likelihood that marine known to or likely to occur in the study activity that cannot be reasonably mammal detection ability by trained area, six are listed as threatened or expected to, and is not reasonably likely PSOs is high at close proximity to the endangered under the ESA: North to, adversely affect the species or stock vessel. Pacific right, humpback, sei, fin, blue, through effects on annual rates of No injuries, serious injuries, or and sperm whales. These species are recruitment or survival.’’ In making a mortalities are anticipated to occur as a also considered depleted under the negligible impact determination, NMFS result of the L–DEO’s planned marine MMPA. Of these ESA-listed species, evaluated factors such as: seismic survey, and none are proposed incidental take has been requested to be (1) The number of anticipated to be authorized by NMFS. Only short- authorized for sei and sperm whales. injuries, serious injuries, or mortalities; term behavioral disturbance is There is generally insufficient data to (2) The number, nature, and intensity, anticipated to occur due to the brief and determine population trends for the and duration of Level B harassment (all sporadic duration of the survey other depleted species in the study area. relatively limited); and activities. Table 3 of this document To protect these animals (and other (3) The context in which the takes outlines the number of requested Level marine mammals in the study area), occur (i.e., impacts to areas of B harassment takes that are anticipated L–DEO must cease or reduce airgun significance, impacts to local as a result of these activities. Due to the operations if animals enter designated populations, and cumulative impacts nature, degree, and context of Level B zones. No injury, serious injury, or when taking into account successive/ (behavioral) harassment anticipated and mortality is expected to occur and due contemporaneous actions when added described (see ‘‘Potential Effects on to the nature, degree, and context of the to baseline data); Marine Mammals’’ section above) in this Level B harassment anticipated, the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES EN14DE11.005 77806 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

activity is not expected to impact rates have been mitigated to the lowest level NSF and L–DEO. The EA analyzes the of recruitment or survival. practicable. direct, indirect, and cumulative environmental impacts of the proposed As mentioned previously, NMFS Impact on Availability of Affected specified activities on marine mammals estimates that 22 species of marine Species or Stock for Taking for including those listed as threatened or mammals under its jurisdiction could be Subsistence Uses potentially affected by Level B endangered under the ESA. Prior to harassment over the course of the IHA. Section 101(a)(5)(D) also requires making a final decision on the IHA For each species, these numbers are NMFS to determine that the application, NMFS will either prepare small (each, less than one percent, authorization will not have an an independent EA, or, after review and except for dwarf sperm whales [1.3%] unmitigable adverse effect on the evaluation of the NSF EA for whales) relative to the regional availability of marine mammal species consistency with the regulations population size. The population or stocks for subsistence use. There are published by the Council of estimates for the marine mammal no relevant subsistence uses of marine Environmental Quality (CEQ) and species that may be taken by Level B mammals in the study area (offshore NOAA Administrative Order 216–6, harassment were provided in Table 2 of waters of the CNMI) that implicate Environmental Review Procedures for this document. MMPA section 101(a)(5)(D). Implementing the National NMFS’s practice has been to apply the Endangered Species Act Environmental Policy Act, adopt the NSF EA and make a decision of whether 160 dB re 1 mPa (rms) received level Of the species of marine mammals or not to issue a Finding of No threshold for underwater impulse sound that may occur in the proposed survey Significant Impact (FONSI). levels to determine whether take by area, several are listed as endangered Level B harassment occurs. Southall et under the ESA, including the North Proposed Authorization al. (2007) provide a severity scale for Pacific right, humpback, sei, fin, blue, ranking observed behavioral responses NMFS proposes to issue an IHA to L– and sperm whales. Under section 7 of DEO for conducting a marine seismic of both free-ranging marine mammals the ESA, NSF has initiated formal and laboratory subjects to various types survey in the CNMI, provided the consultation with the NMFS, Office of previously mentioned mitigation, of anthropogenic sound (see Table 4 in Protected Resources, Endangered Southall et al. [2007]). monitoring, and reporting requirements Species Act Interagency Cooperation are incorporated. The duration of the NMFS has preliminarily determined, Division, on this proposed seismic provided that the aforementioned IHA would not exceed one year from the survey. NMFS’s Office of Protected date of its issuance. mitigation and monitoring measures are Resources, Permits and Conservation implemented, that the impact of Division, has initiated formal Information Solicited conducting a marine seismic survey in consultation under section 7 of the ESA NMFS requests interested persons to the CNMI, February to March, 2012, with NMFS’s Office of Protected submit comments and information may result, at worst, in a temporary Resources, Endangered Species Act concerning this proposed project and modification in behavior and/or low- Interagency Cooperation Division, to NMFS’s preliminary determination of level physiological effects (Level B obtain a Biological Opinion evaluating issuing an IHA (see ADDRESSES). harassment) of small numbers of certain the effects of issuing the IHA on Concurrent with the publication of this species of marine mammals. See Table threatened and endangered marine notice in the Federal Register, NMFS is 3 (above) for the requested authorized mammals and, if appropriate, forwarding copies of this application to take numbers of cetaceans. authorizing incidental take. NMFS will the Marine Mammal Commission and While behavioral modifications, conclude formal section 7 consultation its Committee of Scientific Advisors. including temporarily vacating the area prior to making a determination on Dated: December 8, 2011. during the operation of the airgun(s), whether or not to issue the IHA. If the may be made by these species to avoid IHA is issued, NSF and L–DEO, in James H. Lecky, the resultant acoustic disturbance, the addition to the mitigation and Director, Office of Protected Resources, availability of alternate areas within monitoring requirements included in National Marine Fisheries Service. these areas and the short and sporadic the IHA, will be required to comply [FR Doc. 2011–32100 Filed 12–13–11; 8:45 am] duration of the research activities, have with the Terms and Conditions of the BILLING CODE 3510–22–P led NMFS to preliminary determine that Incidental Take Statement this action will have a negligible impact corresponding to NMFS’s Biological DEPARTMENT OF COMMERCE on the species in the specified Opinion issued to both NSF and geographic region. NMFS’s Office of Protected Resources. National Oceanic and Atmospheric Based on the analysis contained Administration herein of the likely effects of the National Environmental Policy Act specified activity on marine mammals With L–DEO’s complete application, RIN 0648–XA868 and their habitat, and taking into NSF provided NMFS a draft consideration the implementation of the ‘‘Environmental Assessment Pursuant to International Affairs; U.S. Fish Quotas mitigation and monitoring measures, the National Environmental Policy Act, in the Northwest Atlantic Fisheries NMFS preliminarily finds that L–DEO’s 42 U.S.C. 4321 et seq. and Executive Organization Regulatory Area planned research activities will result in Order 12114 Marine Seismic Survey in AGENCY: National Marine Fisheries the incidental take of small numbers of the Commonwealth of the Northern Service (NMFS), National Oceanic and marine mammals, by Level B Marian Islands, 2012,’’ which Atmospheric Administration (NOAA), harassment only, and that the total incorporates an ‘‘Environmental Commerce. taking from the marine seismic survey Assessment of a Marine Geophysical ACTION: Notification of U.S. fish quotas. will have a negligible impact on the Survey by the R/V Marcus G. Langseth affected species or stocks of marine in the Commonwealth of the Northern SUMMARY: NMFS announces that fish mammals; and that impacts to affected Mariana Islands, February–March quotas are available for harvest in the species or stocks of marine mammals 2012,’’ prepared by LGL on behalf of Northwest Atlantic Fisheries

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77807

Organization (NAFO) Regulatory Area. 427–8370, fax: (301) 713–2313, email: allowable catches (TACs) and member This action is necessary to make fishing [email protected]). nation quota allocations. The principal privileges available on an equitable Information relating to NAFO fish species managed are cod, flounder, basis. quotas, NAFO Conservation and redfish, American plaice, halibut, hake, Enforcement Measures, and the High capelin, shrimp, skates and squid. At DATES: Effective January 1, 2012, Seas Fishing Compliance Act (HSFCA) the 2011 NAFO Annual Meeting, the through December 31, 2012. Expressions Permit is available from Douglas United States received fish quota of interest regarding U.S. fish quota Christel, at the NMFS Northeast allocations for three NAFO stocks to be allocations for all species except Regional Office at 55 Great Republic fished during 2012. Please note that the Division 3L shrimp and Division 3M Drive, Gloucester, MA 01930 (phone: Division 3M shrimp effort allocation redfish will be accepted throughout (978) 281–9141, fax: (978) 281–9135, available in recent years remains 2012. Expressions of interest regarding email: [email protected]) and unavailable for 2012 due to the U.S. 3L shrimp and 3M redfish from NAFO on the World Wide Web at conservation concerns. Fishing quota allocations and the Division http://www.nafo.int. opportunities for this stock will be re- 3LNO yellowtail flounder to be FOR FURTHER INFORMATION CONTACT: opened when the NAFO Scientific transferred by Canada will be accepted Patrick E. Moran, (301) 427–8370. Council advice estimates that the stock through December 29, 2011. SUPPLEMENTARY INFORMATION: is showing signs of recovery. ADDRESSES: Expressions of interest The species, location, and allocation regarding U.S. quota allocations should Background (in metric tons) of 2012 U.S. fishing be made in writing to Patrick E. Moran NAFO has established and maintains opportunities, as found in Annexes I.A, in the NMFS Office of International conservation measures in its Regulatory I.B, and I.C of the 2011 NAFO Affairs, at 1315 East-West Highway, Area that include one effort limitation Conservation and Enforcement Silver Spring, MD 20910 (phone: (301) fishery as well as fisheries with total Measures, are as follows:

1. Redfish ...... NAFO Division 3M ...... 69 mt 2. Squid (Illex) ...... NAFO Subareas 3 & 4 ...... 453 mt 3. Shrimp ...... NAFO Division 3L ...... 133 mt

Additionally, the United States may E. Moran (see ADDRESSES). Letters of 1. The vessel operator has a letter of be transferred up to 1,000 mt of 3LNO interest from U.S. vessel owners should authorization issued by the Regional yellowtail flounder from Canada’s quota include the name, registration, and Administrator on board the vessel; allocation if requested before January 1 home port of the applicant vessel as 2. For the duration of the trip, the of 2012, or any succeeding year through required by NAFO in advance of fishing vessel fishes, except for transiting 2017. If such a request is made, an operations. Any available information purposes, exclusively in the NAFO additional 500 mt of 3LNO yellowtail on intended target species and dates of Regulatory Area and does not harvest flounder could be made available on the fishing operations should be included. fish in, or possess fish harvested in, or condition that the United States In addition, expressions of interest from, the U.S. EEZ; transfers its 3L shrimp allocation to should be accompanied by a detailed Canada or through some other 3. When transiting the U.S. EEZ, all description of anticipated benefits to the gear is properly stowed in accordance arrangement. Participants in this fishery United States. Such benefits might will be restricted to an overall bycatch with one of the applicable methods include, but are not limited to, the use specified in § 648.23(b); and harvest limit for American plaice equal of U.S. processing facilities/personnel; to 15% of the total yellowtail fishery. the use of U.S. fishing personnel; other 4. The vessel operator complies with the HSFCA permit and all NAFO Fishing opportunities may also be specific positive effects on U.S. conservation and enforcement measures authorized for U.S. fishermen in the employment; evidence that fishing by while fishing in the NAFO Regulatory ‘‘Others’’ category for: Division 3NO the applicant vessel actually would take Area. white hake (295 mt); Division 3LNO place; and documentation of the skates (314 mt); Division 3M cod (37 physical characteristics and economics NAFO Conservation and Management mt), 3LN redfish (36 mt) and Division of the fishery for future use by the U.S. Measures 3O redfish (100 mt). Procedures for fishing industry. To ensure equitable obtaining NMFS authorization are access by U.S. vessel owners, NMFS Relevant NAFO Conservation and specified below. may promulgate regulations designed to Enforcement Measures include, but are not limited to, maintenance of a fishing U.S. Fishing Vessel Applicants choose one or more U.S. applicants from logbook with NAFO-designated entries; among expressions of interest. Expressions of interest to fish for any adherence to NAFO hail system or all of the 2012 U.S. fish quota Note that vessels issued valid HSFCA requirements; presence of an on-board allocations, including the up to 1,500 mt permits under 50 CFR part 300 are observer; deployment of a functioning, of yellowtail flounder to be transferred exempt from multispecies permit, mesh autonomous vessel monitoring system; by Canada under the circumstances size, effort-control, and possession limit and adherence to all relevant minimum described above, and ‘‘Others’’ category restrictions, specified in §§ 648.4, size, gear, bycatch, and other allocations in NAFO will be considered 648.80, 648.82 and 648.86, respectively, requirements. Further details regarding from U.S. vessels in possession of, or while transiting the U.S. exclusive these requirements are available from eligible for, a valid HSFCA permit, economic zone (EEZ) with multispecies the NMFS Northeast Regional Office, which is available from the NMFS on board the vessel, or landing and can also be found in the current Northeast Regional Office (see multispecies in U.S. ports that were NAFO Conservation and Enforcement ADDRESSES). All expressions of interest caught while fishing in the NAFO Measures on the Internet (see should be directed in writing to Patrick Regulatory Area, provided: ADDRESSES).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77808 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Transfer and Chartering of U.S. Quota the NAFO Executive Secretary: NMFS will immediately take Allocations Provisional monthly catches within 30 appropriate steps to notify NAFO to take In the event that no adequate days following the calendar month in appropriate action. expressions of interest in harvesting the which the catches were made; After reviewing all requests for U.S. portion of the 2012 NAFO Division provisional daily catches of shrimp allocations submitted, NMFS may decide not to grant any allocations if it 3M redfish quota allocation are made on taken from Division 3L; observer reports is determined that no requests meet the behalf of U.S. vessels, expressions of within 30 days following the criteria described in this notice. All interest will be considered from U.S. completion of a fishing trip; and an individuals/companies submitting fishing interests intending to make use annual statement of actions taken in expressions of interest to NMFS will be of vessels of other NAFO Parties order to comply with the NAFO contacted if an allocation has been through a transfer of quota allocated to Convention; and notification to NMFS awarded. the United States. Under NAFO rules in of the termination of the charter fishing activities. Furthermore, the United effect for 2012, the United States may Chartering Operations for Division States may also consider a Contracting transfer fishing possibilities with the 3LNO Yellowtail Flounder Transferred Party’s previous compliance with NAFO consent of the receiving Contracting From Canada bycatch, reporting and other provisions, Party and with prior notification to the as outlined in the NAFO Conservation In the event that no adequate NAFO Executive Secretary. Expressions and Enforcement Measures, before expressions of interest in harvesting of interest from U.S. fishing interests entering into a chartering arrangement. NAFO Division 3LNO yellowtail intending to make use of vessels from Expressions of interest from U.S. flounder transferred from Canada during another NAFO Contracting Party fishing interests intending to make use 2012 are made on behalf of U.S. vessels, through a transfer of quota allocated to of vessels from another NAFO expressions of interest will be the United States should include a letter Contracting Party under chartering considered from U.S. processors and of consent from the vessel’s flag state. In arrangements should include other fishing interests intending to make addition, expressions of interest for information required by NAFO use of a Canadian vessel under a transfers should be accompanied by a regarding the proposed chartering chartering arrangement. Under the detailed description of anticipated operation, including: The name, bilateral arrangement with Canada, the benefits to the United States. Such registration and flag of the intended United States may enter into a benefits might include, but are not vessel; a copy of the charter; the fishing chartering (or other) arrangement with a limited to, the use of U.S. processing opportunities granted; a letter of consent Canadian vessel to harvest the facilities/personnel; the use of U.S. from the vessel’s flag state; the date from transferred yellowtail flounder. Prior fishing personnel; other specific which the vessel is authorized to notification to the NAFO Executive positive effects on U.S. employment; commence fishing on these Secretary is necessary in this case. evidence that fishing by the recipient opportunities; and the duration of the Expressions of interest from U.S. NAFO Contracting Party actually would charter (not to exceed six months). More processors and other fishing interests take place; and any available details on NAFO requirements for intending to make use of a Canadian documentation of the physical chartering operations are available from vessel under chartering arrangements characteristics and economics of the NMFS (see ADDRESSES). In addition, should provide the following fishery for future use by the U.S. fishing expressions of interest for chartering information: The name and registration industry. operations should be accompanied by a number of the intended vessel; a copy In the event that no adequate detailed description of anticipated of the charter; a detailed fishing plan, expressions of interest in harvesting the benefits to the United States. Such and a written letter of consent from the U.S. portion of the 2012 NAFO Division benefits might include, but are not Department of Fisheries and Oceans, 3L shrimp quota allocation are made on limited to, the use of U.S. processing Canada. In addition, expressions of behalf of U.S. vessels, expressions of facilities/personnel; the use of U.S. interest using a Canadian vessel under interest will be considered from U.S. fishing personnel; other specific charter should be accompanied by a fishing interests intending to make use positive effects on U.S. employment; detailed description of anticipated of vessels of other NAFO Parties under evidence that fishing by the chartered benefits to the United States. Such chartering arrangements to fish the 2012 vessel actually would take place; and benefits might include, but are not U.S. quota allocation for 3L shrimp. documentation of the physical limited to, the use of U.S. processing Under NAFO rules in effect through characteristics and economics of the facilities/personnel; the use of U.S. 2012, a vessel registered to another fishery for future use by the U.S. fishing fishing personnel; marketing of the NAFO Contracting Party may be industry. product in the United States; other chartered to fish the U.S. shrimp quota In the event that multiple expressions specific positive effects on U.S. provided that written consent for the of interest are made by U.S. fishing employment; evidence that fishing by charter is obtained from the vessel’s flag interests proposing the transfer of the Canadian vessel will actually take state and the U.S. allocation is Division 3M redfish quota allocated to place; and any available documentation transferred to that flag state. NAFO the United States, or chartering of the physical characteristics and Parties must be notified of such a operations to fish Division 3L shrimp economics of the fishery for future use chartering operation through a mail quota allocated to the United States, the by the U.S. fishing industry. notification process. information submitted regarding Any Canadian vessel wishing to enter A NAFO Contracting Party wishing to benefits to the United States will be into a chartering arrangement with the enter into a chartering arrangement with used in making a selection. In the event United States must be in full current the United States must be in full current that applications by U.S. fishing compliance with the requirements compliance with the requirements interests proposing transfer or the use of outlined in the NAFO Convention and outlined in the NAFO Convention and chartering operations are considered, all Conservation and Enforcement Conservation and Enforcement applicants will be made aware of the Measures including, but not limited to, Measures including, but not limited to, allocation decision as soon as possible. submission of the following reports to submission of the following reports to Once the allocation has been awarded, the NAFO Executive Secretary:

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77809

Provisional monthly catches within 30 has been made regarding the disposition ACTION: Notice. days following the calendar month in of the fishing opportunity, NMFS will which the catches were made; observer immediately take appropriate steps to SUMMARY: The Department of Defense is reports within 30 days following the notify all applicants and will contact publishing the unclassified text of a completion of a fishing trip; and an Canada and NAFO to take appropriate section 36(b)(1) arms sales notification. annual statement of actions taken in action. Please note that if any 3LNO This is published to fulfill the order to comply with the NAFO yellowtail flounder is transferred from requirements of section 155 of Public Convention; and notification to NMFS Canada and subsequently awarded to a Law 104–164 dated July 21, 1996. of the termination of the charter fishing U.S. vessel or a specified chartering activities. Furthermore, the United operation during 2012, it may not be FOR FURTHER INFORMATION CONTACT: Ms. States may also consider the vessel’s transferred without the express, written B. English, DSCA/DBO/CFM, (703) 601– previous compliance with NAFO consent of NMFS. 3740. bycatch, reporting and other provisions, Dated: December 9, 2011. The following is a copy of a letter to as outlined in the NAFO Conservation the Speaker of the House of and Enforcement Measures, before Rebecca Lent, Representatives, Transmittals 11–43 entering into a chartering arrangement. Director, Office of International Affairs, with attached transmittal and policy More details on NAFO requirements are National Marine Fisheries Service. justification. available from NMFS (see ADDRESSES). [FR Doc. 2011–32099 Filed 12–13–11; 8:45 am] In the event that multiple expressions BILLING CODE 3510–22–P Dated: December 9, 2011. of interest are made by U.S. fishing Aaron Siegel, interests to fish for NAFO Division Alternate OSD Federal Register Liaison 3LNO yellowtail in 2012, the DEPARTMENT OF DEFENSE Officer, Department of Defense. information submitted regarding benefits to the United States will be Office of the Secretary BILLING CODE 5001–06–P used in making a selection. After reviewing all requests for allocations [Transmittal Nos. 11–43] submitted, NMFS may decide not to 36(b)(1) Arms Sales Notification grant any allocations if it is determined that no requests meet the criteria AGENCY: Defense Security Cooperation described in this notice. Once a decision Agency, Department of Defense.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77810 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

BILLING CODE 5001–06–C Total ...... $426 million. Radar, Night Vision Devices, simulators, Transmittal No. 11–43 * as defined in Section 47(6) of the Arms spare and repair parts, support and test Export Control Act. equipment, publications and technical Notice of Proposed Issuance of Letter of documentation, personnel training and Offer Pursuant to Section 36(b)(1) of the (iii) Description and Quantity or training equipment, U.S. Government Arms Export Control Act, as Amended Quantities of Articles or Services under and contractor engineering, technical Consideration for Purchase: and logistics support services, and other (i) Prospective Purchaser: Hungary modification and inspection of 32 UH– related elements of logistical and (ii) Total Estimated Value: 1N Utility Helicopters and 20 T–400 program support. Major Defense Equipment * $0 million. spare engines being provided as grant Other ...... $426 million. Excess Defense Articles (EDA). Also (iv) Military Department: Navy (SAA, provided are Forward Looking Infrared TAA, AAF)

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES EN14DE11.000 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77811

(v) Prior Related Cases, if any: None DEPARTMENT OF DEFENSE VA 22202–4512, or by telephone at (vi) Sales Commission, Fee, etc., Paid, (703) 607–2943. Offered, or Agreed to be Paid: None Office of the Secretary SUPPLEMENTARY INFORMATION: Pursuant (vii) Sensitivity of Technology [Docket ID; DOD–2011–OS–0144] to subsection (o) of the Privacy Act of Contained in the Defense Article or 1974, as amended, (5 U.S.C. 552a), the Defense Services Proposed to be Sold: Privacy Act of 1974; Notice of a None Computer Matching Program DMDC and VA have concluded an agreement to conduct a computer (viii) Date Report Delivered to AGENCY: Defense Manpower Data Congress: 6 December 2011 matching program between the agencies. Center, Department of Defense (DoD). The purpose of this agreement is to POLICY JUSTIFICATION ACTION: Notice of a Computer Matching verify an individual’s continuing Hungary—UH–1N Helicopters Program. eligibility for VA benefits by identifying VA disability benefit recipients who The Government of Hungary has SUMMARY: Subsection (e)(12) of the return to active duty and to ensure that requested a possible sale of the Privacy Act of 1974, as amended, (5 benefits are terminated if appropriate. modification and inspection of 32 UH– U.S.C. 552a) requires agencies to The parties to this agreement have 1N Utility Helicopters and 20 T–400 publish advance notice of any proposed determined that a computer matching spare engines being provided as grant or revised computer matching program program is the most efficient, Excess Defense Articles (EDA). Also by the matching agency for public provided are Forward Looking Infrared comment. The DoD, as the matching expeditious, and effective means of Radar, Night Vision Devices, simulators, agency under the Privacy Act is hereby obtaining the information needed by the spare and repair parts, support and test giving notice to the record subjects of a VA to identify ineligible VA disability equipment, publications and technical computer matching program between compensation recipients who have documentation, personnel training and the Department of Veterans Affairs (VA) returned to active duty. This matching training equipment, U.S. Government and DoD, Defense Manpower Data agreement will identify those veterans and contractor engineering, technical Center (DMDC) that their records are who have returned to active duty, but and logistics support services, and other being matched by computer. The are still receiving disability related elements of logistical and purpose of this agreement is to verify an compensation. If this identification is program support. The estimated cost is individual’s continuing eligibility for not accomplished by computer $426 million. VA benefits by identifying VA disability matching, but is done manually, the cost This proposed sale will contribute to benefit recipients who return to active would be prohibitive and it is possible the foreign policy and national security duty and to ensure that benefits are that not all individuals would be of the United States by helping to terminated if appropriate. identified. improve the military capabilities of DATES: This proposed action will A copy of the computer matching Hungary and furthering NATO become effective January 13, 2012 and agreement between VA and DMDC is standardization and interoperability matching may commence unless available upon request to the public. between United States and other NATO changes to the matching program are Requests should be submitted to the allies. required due to public comments or by Director for Privacy, Defense Privacy The proposed sale will help improve Congressional or Office of Management and Civil Liberties Office, 1901 South Hungary’s overall ability to conduct and Budget objections. Any public Bell Street, Suite 920, Arlington, VA humanitarian and search and rescue comment must be received before the 22202–4512 or to the Department of medical evacuation missions. The effective date. Veterans Affairs, Veterans Benefit proposed sale would further enhance ADDRESSES: You may submit comments, Administration, 810 Vermont Avenue and enable interoperability with U.S. identified by docket number and title, NW., Washington, DC 20420. Armed Forces and other coalition by any of the following methods: partners in the region. Similar items • Federal eRulemaking Portal: http:// Set forth below is the notice of the have not previously been provided to www.regulations.gov. Follow the establishment of a computer matching Hungary. instructions for submitting comments. program required by paragraph 6.c. of The proposed sale of this equipment • Mail: Federal Docket Management the Office of Management and Budget and support will not alter the basic System Office, 4800 Mark Center Drive, Guidelines on computer matching military balance in the region. East Tower, 2nd floor, Suite 02G09, published in the Federal Register at 54 The prime contractor will be the U.S. Alexandria, VA 22350–3100. FR 25818 on June 19, 1989. Navy, Naval Air Systems Command. Instructions: All submissions received The matching agreement, as required There are no known offset agreements must include the agency name, docket by 5 U.S.C. 552a(r) of the Privacy Act, proposed in connection with this number and title for this Federal and an advance copy of this notice was potential sale. Register document. The general policy Implementation of this proposed sale for comments and other submissions submitted on December 8, 2011, to the will require multiple U.S. Government from members of the public is to make House Committee on Government and contractor representatives to travel these submissions available for public Reform, the Senate Committee on to Hungary for one week intervals, semi- viewing on the Internet at http:// Governmental Affairs, and the annually, for a period of three years for www.regulations.gov as they are Administrator of the Office of program and technical reviews, and received without change, including any Information and Regulatory Affairs, training and maintenance support. personal identifiers or contact Office of Management and Budget There will be no adverse impact on information. pursuant to paragraph 4d of Appendix I to OMB Circular No. A–130, ‘Federal U.S. defense readiness as a result of this FOR FURTHER INFORMATION CONTACT: Mr. proposed sale. Samuel P. Jenkins, Director, Defense Agency Responsibilities for Maintaining [FR Doc. 2011–32049 Filed 12–13–11; 8:45 am] Privacy and Civil Liberties Office, 1901 Records about Individuals,’ dated BILLING CODE 5001–06–P South Bell Street, Suite 920, Arlington, February 8, 1996 (61 FR 6435).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77812 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Dated: December 9, 2011. published at 74 FR 29275 (June 19, other by written request to terminate or Aaron Siegel, 2009), and last amended at 75 FR 22187 modify the agreement. Alternate OSD Federal Register Liaison (April 27, 2010). G. Address for Receipt of Public Officer, Department of Defense. DoD will use the system of records Comments or Inquiries: Director, identified as DMDC 01, entitled, Defense Privacy and Civil Liberties Notice of a Computer Matching ‘‘Defense Manpower Data Center Data Office, 1901 South Bell Street, Suite Program Between the Department of Base’’, published November 23, 2011, 76 Veterans Affairs and the Department of 920, Arlington, VA 22202–4512. FR 72391. Telephone (703) 607–2943. Defense for Verification of Disability E. Description of Computer Matching [FR Doc. 2011–32071 Filed 12–13–11; 8:45 am] Compensation Program: The Veterans Benefits A. Participating Agencies: Administration will provide DMDC BILLING CODE 5001–06–P Participants in this computer matching with an electronic file that contains program are the Department of Veterans specified data elements of individual Affairs (VA) and the Defense Manpower VA disability compensation recipients. DEPARTMENT OF EDUCATION Data Center (DMDC) of the Department Upon receipt of the electronic file, Notice of Submission for OMB Review of Defense (DoD). The VA is the source DMDC will perform a computer match agency, i.e., the activity disclosing the using all nine digits of the SSNs in the AGENCY: Department of Education. records for the purpose of the match. VA file against a DMDC computer ACTION: Comment Request. The DMDC is the specific recipient database. The DMDC database consists activity or matching agency, i.e., the of pay records of active duty (including SUMMARY: The Acting Director, agency that actually performs the full-time National Guard and Reserve) Information Collection Clearance computer matching. military members. Matching records, Division, Privacy, Information and B. Purpose of the Match: The purpose ‘‘hits’’ based on the SSN, will produce Records Management Services, Office of of this agreement is to verify an the member’s name, branch of service, Management, invites comments on the individual’s continuing eligibility for and unit designation, and other submission for OMB review as required VA benefits by identifying VA disability pertinent data elements. The hits will be by the Paperwork Reduction Act of 1995 benefit recipients who return to active furnished to the Veterans Benefits (Pub. L. 104–13). duty and to ensure that benefits are Administration, which is responsible for DATES: Interested persons are invited to terminated if appropriate. verifying and determining that the data submit comments on or before January VA will provide identifying on the electronic reply file are 13, 2012. information on disability compensation consistent with the source file and for ADDRESSES: Written comments should recipients to DMDC to match against a resolving all discrepancies or be addressed to the Office of file of active duty (including full-time inconsistencies on an individual basis. Information and Regulatory Affairs, National Guard and Reserve) personnel. The Veterans Benefits Administration Attention: Education Desk Officer, The purpose is to identify those will also be responsible for making final Office of Management and Budget, 725 recipients who have returned to active determinations as to positive 17th Street NW., Room 10222, New duty and are ineligible to receive VA identification, eligibility for benefits, Executive Office Building, Washington, compensation so that benefits can be and verifying any other information DC 20503, be faxed to (202) 395–5806 or adjusted or terminated, if in order. with respect thereto. _ C. Authority for Conducting the The listing will be sorted by VA file emailed to oira [email protected]. Match: The legal authority for number by Regional Office number. VA gov with a cc: to [email protected]. conducting the matching program for will then take necessary action to Please note that written comments use in the administration of VA’s terminate compensation payments of received in response to this notice will Compensation and Pension Benefits any benefit recipient identified as being be considered public records. Program is contained in 38 U.S.C. on active duty while receiving SUPPLEMENTARY INFORMATION: Section 5304(c), Prohibition Against Duplication compensation pay after following the 3506 of the Paperwork Reduction Act of of Benefits, which precludes pension, verification of procedures detailed in 1995 (44 U.S.C. Chapter 35) requires compensation, or retirement pay on this agreement. that the Office of Management and account of any person’s own service, for F. Inclusive Dates of the Matching Budget (OMB) provide interested any period for which he receives active Program: This computer matching Federal agencies and the public an early duty pay. The head of any Federal program is subject to public comment opportunity to comment on information department or agency shall provide, and review by Congress and the Office collection requests. The OMB is pursuant to 38 U.S.C. 5106, such of Management and Budget. If the particularly interested in comments information as requested by VA for the mandatory 30 day period for comment which: (1) Evaluate whether the purpose of determining eligibility for, or has expired and no comments are proposed collection of information is amount of benefits, or verifying other received and if no objections are raised necessary for the proper performance of information which respect thereto. by either Congress or the Office of the functions of the agency, including D. Records to be Matched: The Management and Budget within 40 days whether the information will have systems of records maintained by the of being notified of the proposed match, practical utility; (2) Evaluate the respective agencies under the Privacy the computer matching program accuracy of the agency’s estimate of the Act of 1974, as amended, 5 U.S.C. 552a, becomes effective and the respective burden of the proposed collection of from which records will be disclosed for agencies may begin the exchange at a information, including the validity of the purpose of this computer match are mutually agreeable time and thereafter the methodology and assumptions used; as follows: on a quarterly basis. By agreement (3) Enhance the quality, utility, and VA will use the system of records between VA and DMDC, the matching clarity of the information to be identified as ‘‘VA Compensation, program will be in effect for 18 months collected; and (4) Minimize the burden Pension, Education and Vocational with an option to renew for 12 of the collection of information on those Rehabilitation and Employment additional months unless one of the who are to respond, including through Records—VA’’ (58 VA 21/22/28), parties to the agreement advises the the use of appropriate automated,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77813

electronic, mechanical, or other Relay Service (FIRS) at 1–(800) 877– Description: Western’s Work technological collection techniques or 8339. Performance Agreement under PG&E other forms of information technology. [FR Doc. 2011–32082 Filed 12–13–11; 8:45 am] Rate Schedule FERC No. 228 to be Dated: December 9, 2011. BILLING CODE 4000–01–P effective 12/9/2011. Kate Mullan, Filed Date: 12/5/11. Accession Number: 20111205–5121. Acting Director, Information Collection Comments Due: 5 p.m. ET 12/27/11. Clearance Division, Privacy, Information and DEPARTMENT OF ENERGY Records Management Services, Office of Docket Numbers: ER12–537–000. Management. Federal Energy Regulatory Applicants: Ohio Valley Electric Commission Corporation. Institute of Education Sciences Description: Transmission Planning Type of Review: Pending. Combined Notice of Filings #1 Process (Attachment M) Compliance Title of Collection: Evaluation of Take notice that the Commission Filing to be effective 9/10/2010. Response to Intervention Practices for received the following electric corporate Filed Date: 12/5/11. Elementary School Reading (School and filings: Accession Number: 20111205–5130. Staff Practices). Comments Due: 5 p.m. ET 12/27/11. Docket Numbers: EC12–43–000. OMB Control Number: 1850—New. Applicants: El Paso Marketing Docket Numbers: ER12–538–000. Agency Form Number(s): N/A. Company, L.L.C., Sherpa Acquisition, Applicants: Southern California Frequency of Responses: On LLC. Edison Company. Occasion. Description: Application for Description: LGIA Antelope Valley Affected Public: State, Local or Tribal authorization for disposition of Solar PV2 Project—Solar Star California Government. jurisdictional facilities of El Paso XX, LLC to be effective 12/6/2011. Total Estimated Number of Annual Marketing Company, L.L.C., et al. Filed Date: 12/5/11. Responses: 4,720. Filed Date: 12/5/11. Accession Number: 20111205–5132. Total Estimated Annual Burden Accession Number: 20111205–5186. Comments Due: 5 p.m. ET 12/27/11. Hours: 11,886. Comments Due: 5 p.m. ET 12/27/11 Docket Numbers: ER12–539–000. Abstract: The Evaluation of Response Take notice that the Commission Applicants: CPI Energy Services (US) to Intervention (RtI) Practices for received the following electric rate LLC. Elementary School Reading will inform filings: Description: Notice of Non-Material the National Assessment of Individuals Docket Numbers: ER10–1414–001; Change to be effective 2/3/2012. With Disabilities Education ER11–1881–003; ER10–3166–001; Filed Date: 12/5/11. Improvement Act of 2004, and the ER11–1890–003; ER01–138–009; ER11– Accession Number: 20111205–5133. choices of districts and schools, by 1882–003; ER10–1406–002; ER11–1883– Comments Due: 5 p.m. ET 12/27/11. studying the implementation and 003; ER11–1885–003; ER10–1416–002; Docket Numbers: ER12–540–000. impact of practices to identify and ER11–1892–003; ER11–1886–003; Applicants: CPIDC, Inc. intervene early with struggling readers, ER11–1893–003; ER11–1887–003; Description: Notice of Non-Material and when needed, determine students’ ER11–1889–003; ER11–1894–003; Change to be effective 2/3/2012. eligibility for special education. The ER10–1345–003; ER10–1343–003; Filed Date: 12/5/11 Department seeks clearance for ER10–1346–002; ER10–1348–002; Accession Number: 20111205–5137. instruments to collect data for an in- ER11–2534–002. Comments Due: 5 p.m. ET 12/27/11. depth study of the design, Applicants: Burley Butte Wind Park, Docket Numbers: ER12–541–000. implementation, and impact of RtI LLC, Cadillac Renewable Energy LLC, Applicants: Frederickson Power L.P. programs. Camp Reed Wind Park, LLC, CPI Energy Description: Notice of Non-Material Copies of the information collection Services (US) LLC, CPIDC, Inc., Delta Change to be effective 2/3/2012. submission for OMB review may be Person Limited Partnership, Filed Date: 12/5/11. accessed from the RegInfo.gov Web site Frederickson Power L.P., Golden Valley Accession Number: 20111205–5142. at http://www.reginfo.gov/public/do/ Wind Park, LLC, Lake Cogen Ltd., Comments Due: 5 p.m. ET 12/27/11. PRAMain or from the Department’s Web ManChief Power Company LLC, Milner site at http://edicsweb.ed.gov, by Docket Numbers: ER12–542–000. Dam Wind Park, LLC, Morris Applicants: Manchief Power selecting the ‘‘Browse Pending Cogeneration, LLC, Oregon Trail Wind Collections’’ link and by clicking on Company LLC. Park, LLC, Pasco Cogen, Ltd., Payne’s Description: Notice of Non-Material link number 4734. When you access the Ferry Wind Park, LLC, Pilgrim Stage information collection, click on Change to be effective 2/3/2012. Station Wind Park, LLC, Salmon Falls Filed Date: 12/5/11. ‘‘Download Attachments’’ to view. Wind Park, LLC, Thousand Springs Written requests for information should Accession Number: 20111205–5146. Wind Park, LLC, Tuana Gulch Wind Comments Due: 5 p.m. ET 12/27/11. be addressed to U.S. Department of Park, LLC, Yahoo Creek Wind Park, Education, 400 Maryland Avenue SW., LLC, Auburndale Power Partners, Docket Numbers: ER12–543–000. LBJ, Washington, DC 20202–4537. Limited Partnership. Applicants: Ethical Electric Benefit Requests may also be electronically Description: Auburndale Power Co. mailed to the Internet address Partners, L.P., et al. Notice of Non- Description: Ethical Electric Benefit [email protected] or faxed to (202) Material Change in Status and Request Co. Market Based Rate Filing—Clone to 401–0920. Please specify the complete for Category 1 Seller Determination. be effective 12/6/2011. title of the information collection and Filed Date: 12/5/11. Filed Date: 12/5/11. OMB Control Number when making Accession Number: 20111205–5187. Accession Number: 20111205–5150. your request. Comments Due: 5 p.m. ET 12/27/11. Comments Due: 5 p.m. ET 12/27/11. Individuals who use a Docket Numbers: ER12–536–000. Docket Numbers: ER12–544–000. telecommunications device for the deaf Applicants: Pacific Gas and Electric Applicants: Morris Cogeneration, (TDD) may call the Federal Information Company. LLC.

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77814 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Description: Notice of Non-Material intervention is necessary to become a Cameron Parish, Louisiana. According Change to be effective 2/3/2012. party to the proceeding. to Cameron LNG, the BOG Liquefaction Filed Date: 12/5/11. eFiling is encouraged. More detailed Project would provide a more Accession Number: 20111205–5151. information relating to filing economical means of maintaining Comments Due: 5 p.m. ET 12/27/11. requirements, interventions, protests, sufficient LNG in each of the terminal’s Docket Numbers: ER12–545–000. service, and qualifying facilities filings storage tanks. Currently, BOG is sent out Applicants: Lake Cogen, Ltd. can be found at: http://www.ferc.gov/ via delivery into the Cameron Interstate Description: Notice of Non-Material docs-filing/efiling/filing-req.pdf. For Pipeline. Change to be effective 2/3/2012. other information, call (866) 208–3676 The proposed BOG Liquefaction Filed Date: 12/5/11. (toll free). For TTY, call (202) 502–8659. Project would consist of the following Accession Number: 20111205–5152. Dated: December 6, 2011. facilities: • An electric-motor driven centrifugal Comments Due: 5 p.m. ET 12/27/11. Nathaniel J. Davis, Sr., Docket Numbers: ER12–546–000. refrigeration compressor; Deputy Secretary. • A cryogenic plate-fin heat Applicants: Pasco Cogen, Ltd. [FR Doc. 2011–31979 Filed 12–13–11; 8:45 am] Description: Notice of Non-Material exchanger; BILLING CODE 6717–01–P • Ancillary aerial coolers, knockout Change to be effective 2/3/2012. Filed Date: 12/5/11. vessels, pumps, and piping for the Accession Number: 20111205–5153. closed loop refrigeration cycle; DEPARTMENT OF ENERGY • Four small (less than 10,000 pounds Comments Due: 5 p.m. ET 12/27/11. each) pressure vessels for refrigerant; Federal Energy Regulatory Docket Numbers: ER12–547–000. • Interconnecting gas piping (4-inch- Commission Applicants: Auburndale Power diameter) from the existing pipeline Partners, Limited Partnership. [Docket No. CP12–15–000] compressors to the liquefaction unit; Description: Notice of Non-Material and Change to be effective 2/3/2012. Cameron LNG, LLC; Notice of Intent To • A single 3-inch-diameter Filed Date: 12/5/11. Prepare an Environmental Assessment interconnecting LNG line from the Accession Number: 20111205–5154. for the Proposed BOG Liquefaction liquefaction unit back to the terminal’s Comments Due: 5 p.m. ET 12/27/11. Project, and Request for Comments on LNG return header. Docket Numbers: ER12–548–000. Environmental Issues The general location of the project Applicants: CP Energy Marketing (US) facilities is shown in appendix 1.1 Inc. The staff of the Federal Energy Description: Request for Category 1 Regulatory Commission (FERC or Land Requirements for Construction Status of CP Energy Marketing (US) Inc. Commission) will prepare an The BOG Liquefaction Project would to be effective 11/5/2011. environmental assessment (EA) that will occupy an area approximately 1 acre in Filed Date: 12/5/11. discuss the environmental impacts of size wholly within the existing terminal Accession Number: 20111205–5155. the BOG Liquefaction Project involving and would not require any new land. Comments Due: 5 p.m. ET 12/27/11. construction and operation of facilities by Cameron LNG, LLC (Cameron LNG) The EA Process Docket Numbers: ER12–549–000. in Cameron Parish, Louisiana. This EA Applicants: CPI USA North Carolina The National Environmental Policy will be used by the Commission in its LLC. Act (NEPA) requires the Commission to decision-making process to determine Description: Request for Category 1 take into account the environmental whether the project is in the public Seller Status of CPI USA North Carolina impacts that could result from an action interest. LLC to be effective 11/5/2011. whenever it considers an authorization This notice announces the opening of 2 Filed Date: 12/5/11 of a project. NEPA also requires us to the scoping process the Commission Accession Number: 20111205–5156. discover and address concerns the will use to gather input from the public Comments Due: 5 p.m. ET 12/27/11. public may have about proposals. This and interested agencies on the project. process is referred to as ‘‘scoping.’’ The Docket Numbers: ER12–550–000. Your input will help the Commission main goal of the scoping process is to Applicants: Southwest Power Pool, staff determine what issues need to be focus the analysis in the EA on the Inc. evaluated in the EA. Comments may be important environmental issues. By this Description: Order No. 719 submitted in written form or verbally. notice, the Commission requests public Compliance Filing—Docket Nos. ER09– Further details on how to submit comments on the scope of the issues to 1050, ER09–748, and ER09–1192 to be written comments are provided in the address in the EA. We will consider all effective 12/5/2011. Public Participation section of this filed comments during the preparation Filed Date: 12/5/11. notice. Please note that the scoping of the EA. Accession Number: 20111205–5161. period will close on January 13, 2012. In the EA we will discuss impacts that Comments Due: 5 p.m. ET 12/27/11. This notice is being sent to the could occur as a result of the The filings are accessible in the Commission’s current environmental construction and operation of the Commission’s eLibrary system by mailing list for this project. State and clicking on the links or querying the local government representatives are 1 The appendices referenced in this notice will docket number. asked to notify their constituents of this not appear in the Federal Register. Copies of Any person desiring to intervene or appendices were sent to all those receiving this proposed project and encourage them to notice in the mail and are available at http:// protest in any of the above proceedings comment on their areas of concern. www.ferc.gov using the link called ‘‘eLibrary’’ or must file in accordance with Rules 211 from the Commission’s Public Reference Room, 888 and 214 of the Commission’s Summary of the Proposed Project First Street NE., Washington, DC 20426, or call Regulations (18 CFR 385.211 and Cameron LNG plans to construct and (202) 502–8371. For instructions on connecting to eLibrary, refer to the last page of this notice. 385.214) on or before 5 p.m. Eastern operate facilities necessary to liquefy 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the time on the specified comment date. boil-off gas (BOG) at its existing environmental staff of the Commission’s Office of Protests may be considered, but liquefied natural gas (LNG) terminal in Energy Projects.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77815

proposed project under these general (1) You can file your comments appeal the Commission’s final ruling. headings: electronically using the eComment An intervenor formally participates in • Geology and soils; feature on the Commission’s Web site at the proceeding by filing a request to • Land use; http://www.ferc.gov under the link to intervene. Instructions for becoming an • Air quality and noise; and Documents and Filings. This is an easy intervenor are in the User’s Guide under • Public safety. method for interested persons to submit the ‘‘e-filing’’ link on the Commission’s We will also evaluate possible brief, text-only comments on a project; Web site. alternatives to the proposed project or (2) You can file your comments Additional Information portions of the project, and make electronically by using the eFiling recommendations on how to lessen or feature on the Commission’s Web site at Additional information about the avoid impacts on the various resource http://www.ferc.gov under the link to project is available from the areas. Documents and Filings. With eFiling, Commission’s Office of External Affairs, The EA will present our independent you can provide comments in a variety at (866) 208–FERC, or on the FERC Web analysis of the issues. It will be of formats by attaching them as a file site (http://www.ferc.gov) using the available in the public record through with your submission. New eFiling eLibrary link. Click on the eLibrary link, eLibrary. Depending on the comments users must first create an account by click on ‘‘General Search’’ and enter the received during the scoping process, we clicking on ‘‘eRegister.’’ You must select project docket number, excluding the may also publish and distribute the EA the type of filing you are making. If you last three digits in the Docket Number to the public for an allotted comment are filing a comment on a particular field (i.e., CP12–15). Be sure you have period. We will consider all comments project, please select ‘‘Comment on a selected an appropriate date range. For on the EA before making our Filing’’; or assistance, please contact FERC Online recommendations to the Commission. (3) You can file a paper copy of your Support at [email protected] To ensure we have the opportunity to comments by mailing them to at the or toll free at (866) 208–3676, or for consider and address your comments, following address: Kimberly D. Bose, TTY, contact (202) 502–8659. The please carefully follow the instructions Secretary, Federal Energy Regulatory eLibrary link also provides access to the in the Public Participation section Commission, 888 First Street NE., Room texts of formal documents issued by the below. 1A, Washington, DC 20426. Commission, such as orders, notices, With this notice, we are asking Environmental Mailing List and rulemakings. agencies with jurisdiction by law and/ In addition, the Commission offers a The environmental mailing list or special expertise with respect to the free service called eSubscription which includes federal, state, and local environmental issues of this project to allows you to keep track of all formal government representatives and formally cooperate with us in the issuances and submittals in specific agencies; elected officials; preparation of the EA.3 Agencies that dockets. This can reduce the amount of environmental and public interest would like to request cooperating time you spend researching proceedings groups; Native American Tribes; other agency status should follow the by automatically providing you with interested parties; and local libraries instructions for filing comments notification of these filings, document and newspapers. This list also includes provided under the Public Participation summaries, and direct links to the all affected landowners (as defined in section of this notice. documents. Go to http://www.ferc.gov/ the Commission’s regulations) who own esubscribenow.htm. Public Participation homes within certain distances of Finally, public meetings or site visits You can make a difference by aboveground facilities, and anyone who will be posted on the Commission’s providing us with your specific submits comments on the project. We calendar located at http://www.ferc.gov/ comments or concerns about the project. will update the environmental mailing EventCalendar/EventsList.aspx along Your comments should focus on the list as the analysis proceeds to ensure with other related information. potential environmental effects, that we send the information related to this environmental review to all Dated: December 7, 2011. reasonable alternatives, and measures to Kimberly D. Bose, avoid or lessen environmental impacts. individuals, organizations, and Secretary. The more specific your comments, the government entities interested in and/or more useful they will be. To ensure that potentially affected by the proposed [FR Doc. 2011–31938 Filed 12–13–11; 8:45 am] your comments are timely and properly project. BILLING CODE 6717–01–P If we publish and distribute the EA, recorded, please send your comments so copies will be sent to the environmental that they will be received in mailing list for public review and DEPARTMENT OF ENERGY Washington, DC on or before January 13, comment. If you would prefer to receive 2012. a paper copy of the document instead of Federal Energy Regulatory For your convenience, there are three the CD version or would like to remove Commission methods you can use to submit your your name from the mailing list, please comments to the Commission. In all [Docket No. ER12–543–000] return the attached Information Request instances, please reference the project (appendix 2). docket number (CP12–15–000) with Ethical Electric Benefit Co.; your submission. The Commission Becoming an Intervenor Supplemental Notice That Initial Market-Based Rate Filing Includes encourages electronic filing of In addition to involvement in the EA comments and has expert eFiling staff Request for Blanket Section 204 scoping process, you may want to Authorization available to assist you at (202) 502–8258 become an ‘‘intervenor’’ which is an or [email protected]. official party to the Commission’s This is a supplemental notice in the proceeding. Intervenors play a more above-referenced proceeding of Ethical 3 The Council on Environmental Quality regulations addressing cooperating agency formal role in the process and are able Electric Benefit Co.’s application for responsibilities are at Title 40, Code of Federal to file briefs, appear at hearings, and be market-based rate authority, with an Regulations, part 1501.6. heard by the courts if they choose to accompanying rate tariff, noting that

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77816 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

such application includes a request for ENVIRONMENTAL PROTECTION in the docket index available at http:// blanket authorization, under 18 CFR AGENCY www.regulations.gov. Although listed in part 34, of future issuances of securities the index, some information is not [EPA–HQ–OPPT–2003–0004; FRL–9329–2] and assumptions of liability. publicly available, e.g., CBI or other information whose disclosure is Any person desiring to intervene or to Access to Confidential Business restricted by statute. Certain other protest should file with the Federal Information by Guident Technologies, material, such as copyrighted material, Energy Regulatory Commission, 888 Inc. and Subcontractor, Impact Innovations Systems, Inc. will be publicly available only in hard First Street, NE., Washington, DC 20426, copy. Publicly available docket in accordance with Rules 211 and 214 AGENCY: Environmental Protection materials are available electronically at of the Commission’s Rules of Practice Agency (EPA). http://www.regulations.gov, or, if only and Procedure (18 CFR 385.211 and ACTION: Notice. available in hard copy, at the OPPT 385.214). Anyone filing a motion to Docket. The OPPT Docket is located in intervene or protest must serve a copy SUMMARY: EPA has authorized its the EPA Docket Center (EPA/DC) at Rm. of that document on the Applicant. contractor, Guident Technologies, Inc. 3334, EPA West Bldg., 1301 Notice is hereby given that the of Herndon, VA and subcontractor, Constitution Ave. NW., Washington, deadline for filing protests with regard Impact Innovations Systems, Inc. of DC. The EPA/DC Public Reading Room to the applicant’s request for blanket Manassas, VA to access information hours of operation are 8:30 a.m. to 4:30 authorization, under 18 CFR part 34, of which has been submitted to EPA under p.m., Monday through Friday, excluding legal holidays. The telephone number of future issuances of securities and all sections of the Toxic Substances the EPA/DC Public Reading Room is assumptions of liability, is December 27, Control Act (TSCA). Some of the information may be claimed or (202) 566–1744, and the telephone 2011. determined to be Confidential Business number for the OPPT Docket is (202) The Commission encourages Information (CBI). 566–0280. Docket visitors are required electronic submission of protests and DATES: Access to the confidential data to show photographic identification, interventions in lieu of paper, using the will occur on or about November 23, pass through a metal detector, and sign FERC Online links at http:// 2011. the EPA visitor log. All visitor bags are www.ferc.gov. To facilitate electronic processed through an X-ray machine service, persons with Internet access FOR FURTHER INFORMATION CONTACT: For and subject to search. Visitors will be who will eFile a document and/or be technical information contact: Pamela provided an EPA/DC badge that must be Moseley, Information Management listed as a contact for an intervenor visible at all times in the building and Division (7407M), Office of Pollution must create and validate an returned upon departure. Prevention and Toxics, Environmental eRegistration account using the Protection Agency, 1200 Pennsylvania II. What action is the agency taking? eRegistration link. Select the eFiling Ave. NW., Washington, DC 20460–0001; Under EPA contract number GS–35F– link to log on and submit the telephone number: (202) 564–8956; fax 0799M, Order Number EP–B12D–00005, intervention or protests. number: (202) 564–8955; email address: contractor Guident Technologies, Inc. of Persons unable to file electronically [email protected]. 198 Van Buren Street, Herndon VA; and should submit an original and 14 copies For general information contact: The subcontractor, Impact Innovations of the intervention or protest to the TSCA–Hotline, ABVI–Goodwill, 422 Systems, Inc. of 9720 Capital Court, Federal Energy Regulatory Commission, South Clinton Ave., Rochester, NY Suite 403, Manassas, VA will assist the 888 First Street, NE., Washington, DC 14620; telephone number: (202) 554– Office of Pollution Prevention and 20426. 1404; email address: TSCA– Toxics (OPPT) by developing/modifying [email protected]. the scanning capability for MTS Phase The filings in the above-referenced 1 and Phase 2. Development will be SUPPLEMENTARY INFORMATION: proceeding are accessible in the transferred (Captiva) from the Commission’s eLibrary system by I. General Information development environment to the EPA clicking on the appropriate link in the confidential business environment. above list. They are also available for A. Does this notice apply to me? They will also provide maintenance review in the Commission’s Public This action is directed to the public support of production-level CBITS Reference Room in Washington, DC. in general. This action may, however, be application. In accordance with 40 CFR There is an eSubscription link on the of interest to all who manufacture, 2.306(j), EPA has determined that under Web site that enables subscribers to process, or distribute industrial EPA contract number GS–35F–0799M, receive email notification when a chemicals. Since other entities may also Order Number EP–B12D–00005, document is added to a subscribed be interested, the Agency has not Guident and Impact Innovations will docket(s). For assistance with any FERC attempted to describe all the specific require access to CBI submitted to EPA Online service, please email entities that may be affected by this under all sections of TSCA to perform [email protected]. or call action. If you have any questions successfully the duties specified under (866) 208–3676 (toll free). For TTY, call regarding the applicability of this action the contract. Guident and Impact (202) 502–8659. to a particular entity, consult the Innovations Systems, Inc.’s personnel technical person listed under FOR will be given access to information Dated: December 7, 2011. FURTHER INFORMATION CONTACT. submitted to EPA under all sections of Nathaniel J. Davis, Sr., TSCA. Some of the information may be B. How can I get copies of this document claimed or determined to be CBI. Deputy Secretary. and other related information? [FR Doc. 2011–31978 Filed 12–13–11; 8:45 am] EPA is issuing this notice to inform EPA has established a docket for this all submitters of information under all BILLING CODE 6717–01–P action under docket identification (ID) sections of TSCA that EPA may provide number EPA–HQ–OPPT–2003–0004. Guident and Impact Innovations access All documents in the docket are listed to these CBI materials on a need-to-

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77817

know basis only. All access to TSCA 1404; email address: TSCA– routine system administration (SA) and CBI under this contract will take place [email protected]. database administration (DBA) as at EPA Headquarters in accordance with SUPPLEMENTARY INFORMATION: required to support OPPT computer EPA’s TSCA CBI Protection Manual. applications, OPPT staff, and their Access to TSCA data, including CBI, I. General Information development staff. Specific types of will continue until November 9, 2012. If A. Does this notice apply to me? duties will be configuration changes, the contract is extended, this access will assistance in backups/restoration of also continue for the duration of the This action is directed to the public data, installation of operating systems extended contract without further in general. This action may, however, be maintenance, database maintenance, notice. of interest to all who manufacture, troubleshooting problems, and security Guident and Impact Innovations process, or distribute industrial fixes. In accordance with 40 CFR Systems, Inc.’s personnel will be chemicals. Since other entities may also 2.306(j), EPA has determined that under required to sign nondisclosure be interested, the Agency has not EPA contract number GS–35F–4797H, agreements and will be briefed on attempted to describe all the specific Task Order Number EP–G11D–00168, appropriate security procedures before entities that may be affected by this CGI and subcontractor, Innovate, Inc. they are permitted access to TSCA CBI. action. If you have any questions will require access to CBI submitted to regarding the applicability of this action List of Subjects EPA under all sections of TSCA to to a particular entity, consult the perform successfully the duties Environmental protection, technical person listed under FOR specified under the contract. CGI and Confidential business information. FURTHER INFORMATION CONTACT. Innovate, Inc.’s personnel will be given Dated: December 1, 2011. B. How can I get copies of this document access to information submitted to EPA Matthew G. Leopard, and other related information? under all sections of TSCA. Some of the Director, EPA has established a docket for this information may be claimed or Information Management Division, Office action under docket identification (ID) determined to be CBI. of Pollution Prevention and Toxics. number EPA–HQ–OPPT–2003–0004. EPA is issuing this notice to inform [FR Doc. 2011–31826 Filed 12–13–11; 8:45 am] All documents in the docket are listed all submitters of information under all BILLING CODE 6560–50–P in the docket index available at http:// sections of TSCA that EPA may provide www.regulations.gov. Although listed in CGI and Innovate, Inc. access to these the index, some information is not CBI materials on a need-to-know basis ENVIRONMENTAL PROTECTION publicly available, e.g., CBI or other only. All access to TSCA CBI under this AGENCY information whose disclosure is contract will take place at EPA Headquarters and the Research Triangle [EPA–HQ–OPPT–2003–0004; FRL–9329–1] restricted by statute. Certain other material, such as copyrighted material, Park facilities in accordance with EPA’s Access to Confidential Business will be publicly available only in hard TSCA CBI Protection Manual. Information by CGI Federal, Inc. and copy. Publicly available docket Access to TSCA data, including CBI, Subcontractor, Innovate, Inc. materials are available electronically at will continue until September 30, 2016. http://www.regulations.gov, or, if only If the contract is extended, this access AGENCY: Environmental Protection available in hard copy, at the OPPT will also continue for the duration of the Agency (EPA). Docket. The OPPT Docket is located in extended contract without further ACTION: Notice. the EPA Docket Center (EPA/DC) at Rm. notice. CGI and Innovate, Inc.’s personnel SUMMARY: EPA has authorized its 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, will be required to sign nondisclosure contractor, CGI Federal Inc. (CGI) of agreements and will be briefed on Fairfax, VA, and subcontractor, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 appropriate security procedures before Innovate, Inc. of Alexandria, VA, to they are permitted access to TSCA CBI. access information which has been p.m., Monday through Friday, excluding submitted to EPA under all sections of legal holidays. The telephone number of List of Subjects the EPA/DC Public Reading Room is the Toxic Substances Control Act Environmental protection, (202) 566–1744, and the telephone (TSCA). Some of the information may be Confidential business information. claimed or determined to be number for the OPPT Docket is (202) Dated: December 1, 2011. Confidential Business Information (CBI). 566–0280. Docket visitors are required to show photographic identification, Matthew G. Leopard, DATES: Access to the confidential data pass through a metal detector, and sign Director, Information Management Division, will occur on or about November 23, the EPA visitor log. All visitor bags are Office of Pollution Prevention and Toxics. 2011. processed through an X-ray machine [FR Doc. 2011–31647 Filed 12–13–11; 8:45 am] FOR FURTHER INFORMATION CONTACT: For and subject to search. Visitors will be BILLING CODE 6560–50–P technical information contact: Pamela provided an EPA/DC badge that must be Moseley, Information Management visible at all times in the building and Division (7407M), Office of Pollution returned upon departure. ENVIRONMENTAL PROTECTION Prevention and Toxics, Environmental AGENCY Protection Agency, 1200 Pennsylvania II. What action is the agency taking? [FRL–9327–8] Ave. NW., Washington, DC 20460–0001; Under EPA contract number GS–35F– telephone number: (202) 564–8956; fax 4797H, Task Order Number EP–G11D– Agency Information Collection number: (202) 564–8955; email address: 00168, contractor CGI of 12601 Fair Activities; Proposed Renewal of [email protected]. Lakes Circle, Fairfax, VA, and Several Currently Approved For general information contact: The subcontractor, Innovate, Inc. of 5835 Collections; Comment Request TSCA–Hotline, ABVI–Goodwill, 422 Valley View Drive, Alexandria, VA, will South Clinton Ave., Rochester, NY assist the Office of Pollution Prevention AGENCY: Environmental Protection 14620; telephone number: (202) 554– and Toxics (OPPT) by conducting Agency (EPA).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77818 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

ACTION: Notice. to EPA without going through 3. Enhance the quality, utility, and regulations.gov, your email address will clarity of the information to be SUMMARY: In compliance with the be automatically captured and included collected. Paperwork Reduction Act (PRA) (44 as part of the comment that is placed in 4. Minimize the burden of the U.S.C. 3501 et seq.), this document the docket and made available on the collection of information on those who announces that EPA is planning to Internet. If you submit an electronic are to respond, including through the submit requests to renew several comment, EPA recommends that you use of appropriate automated electronic, currently approved Information include your name and other contact mechanical, or other technological Collection Request (ICR) to the Office of information in the body of your collection techniques or other forms of Management and Budget (OMB). The comment and with any disk or CD–ROM information technology, e.g., permitting ICRs are specifically identified in this you submit. If EPA cannot read your electronic submission of responses. In document by their corresponding titles, comment due to technical difficulties particular, EPA is requesting comments EPA ICR numbers, OMB Control and cannot contact you for clarification, from very small businesses (those that numbers, and related docket EPA may not be able to consider your employ less than 25) on examples of identification (ID) numbers. Before comment. Electronic files should avoid specific additional efforts that EPA submitting these ICRs to OMB for the use of special characters, any form could make to reduce the paperwork review and approval, EPA is soliciting of encryption, and be free of any defects burden for very small businesses comments on specific aspects of the or viruses. affected by this collection. information collection activities. Docket: All documents in the docket DATES: Comments must be received on are listed in the docket index available II. What should I consider when I or before February 13, 2012. in http://www.regulations.gov. Although prepare my comments for EPA? ADDRESSES: Submit your comments, listed in the index, some information is You may find the following identified by the docket ID number for not publicly available, e.g., CBI or other suggestions helpful for preparing your the corresponding ICR as identified in information whose disclosure is comments: this document, by one of the following restricted by statute. Certain other 1. Explain your views as clearly as methods: material, such as copyrighted material, possible and provide specific examples. • Federal eRulemaking Portal: http:// is not placed on the Internet and will be 2. Describe any assumptions that you www.regulations.gov. Follow the on-line publicly available only in hard copy used. instructions for submitting comments. form. Publicly available docket 3. Provide copies of any technical • Mail: Office of Pesticide Programs materials are available either in the information and/or data you used that (OPP) Regulatory Public Docket (7502P), electronic docket at http:// support your views. Environmental Protection Agency, 1200 www.regulations.gov, or, if only 4. If you estimate potential burden or Pennsylvania Ave., NW., Washington, available in hard copy, at the OPP costs, explain how you arrived at the DC 20460–0001. Regulatory Public Docket in Rm. estimate that you provide. • Delivery: OPP Regulatory Public S–4400, One Potomac Yard (South 5. Provide specific examples to Docket (7502P), Environmental Bldg.), 2777 S. Crystal Dr., Arlington, illustrate your concerns. Protection Agency, Rm. S–4400, One VA. The hours of operation of this 6. Offer alternative ways to improve Potomac Yard (South Bldg.), 2777 S. Docket Facility are from 8:30 a.m. to 4 the collection activity. Crystal Dr., Arlington, VA. Deliveries p.m., Monday through Friday, excluding 7. Make sure to submit your are only accepted during the Docket legal holidays. The Docket Facility comments by the deadline identified Facility’s normal hours of operation telephone number is (703) 305–5805. under DATES. (8:30 a.m. to 4 p.m., Monday through FOR FURTHER INFORMATION CONTACT: 8. To ensure proper receipt by EPA, Friday, excluding legal holidays). Rame Cromwell, Field and External be sure to identify the docket ID number Special arrangements should be made Affairs Division (7506P), Office of assigned to this action in the subject for deliveries of boxed information. The Pesticide Programs, Environmental line on the first page of your response. Docket Facility telephone number is Protection Agency, 1200 Pennsylvania You may also provide the name, date, (703) 305–5805. Ave., NW., Washington, DC 20460– and Federal Register citation. Instructions: Direct your comments to 0001; telephone number: (703) 308– III. What do I need to know about PRA? the docket ID number for the 9068; fax number: (703) 308–5884; corresponding ICR as identified in this email address: [email protected]. An Agency may not conduct or document. EPA’s policy is that all sponsor, and a person is not required to SUPPLEMENTARY INFORMATION: comments received will be included in respond to, a collection of information the docket without change and may be I. What information is EPA particularly subject to PRA approval unless it made available on-line at http:// interested in? displays a currently valid OMB control www.regulations.gov, including any Pursuant to section 3506(c)(2)(A) of number. The OMB control numbers for personal information provided, unless PRA, EPA specifically solicits EPA’s regulations in title 40 of the Code the comment includes information comments and information to enable it of Federal Regulations (CFR), after claimed to be Confidential Business to: appearing in the preamble of the final Information (CBI) or other information 1. Evaluate whether the proposed rule, are further displayed either by whose disclosure is restricted by statute. collection of information is necessary publication in the Federal Register or Do not submit information that you for the proper performance of the by other appropriate means, such as on consider to be CBI or otherwise functions of the Agency, including the related collection instruments or protected through regulations.gov or whether the information will have form, if applicable. The display of OMB email. The regulations.gov Web site is practical utility. control numbers for certain EPA an ‘‘anonymous access’’ system, which 2. Evaluate the accuracy of the regulations is consolidated in a list at 40 means EPA will not know your identity Agency’s estimates of the burden of the CFR 9.1. or contact information unless you proposed collection of information, Under PRA, burden means the total provide it in the body of your comment. including the validity of the time, effort, or financial resources If you send an email comment directly methodology and assumptions used. expended by persons to generate,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77819

maintain, retain, or disclose or provide EPA to grant unregistered pesticide use B. Docket ID Number EPA–HQ–OPP– information to or for a Federal agency. exemptions for public health and 2011–0843 This includes the time needed to review quarantine reasons. Title: Notice of Arrival of Pesticides instructions; develop, acquire, install, Most requests for emergency and Devices under Section 17(c) of and utilize technology and systems for exemptions are made by state lead FIFRA. the purposes of collecting, validating, agricultural agencies, although agencies ICR numbers: EPA ICR No. 0152.10, and verifying information, processing such as the United States Departments OMB Control No. 2070–0020. and maintaining information, and of Agriculture (USDA), Defense (DOD) ICR status: The approval for this ICR disclosing and providing information; and Interior (USDI) also request is scheduled to expire on August 31, adjust the existing ways to comply with exemptions. This process is generally 2012. any previously applicable instructions initiated when growers in particular Affected entities: Entities potentially and requirements which have regions identify an urgent, non-routine affected by this ICR are individuals or subsequently changed; train personnel situation which registered pesticides entities that import pesticides into the to be able to respond to a collection of will not alleviate. The growers contact United States. The North American information; search data sources; their state lead agency (usually a state’s Industrial Classification System complete and review the collection of department of agriculture) and request (NAICS) codes assigned to the parties information; and transmit or otherwise that the state agency apply to EPA for responding to this information disclose the information. a section 18 emergency exemption for a collection include NAICS code 236220 IV. Which ICRs are being renewed? particular use. The state agency (commercial and institutional building evaluates the requests and submits construction), sector 11 (agriculture, EPA is planning to submit a number requests to EPA for emergency forestry, fishing, and hunting), and of currently approved ICRs to OMB for exemptions they believe are warranted. sector 42 (wholesale trade). The review and approval under PRA. In The uses are requested for a limited majority of responses come from entities addition to specifically identifying the period of time to address the emergency that fall under NAICS code 325300 ICRs by title and corresponding ICR, situation only. (pesticide and other agricultural OMB and docket ID numbers, this unit chemical manufacturing). provides a brief summary of the Burden statement: The annual public Abstract: The Customs and Border information collection activity and the reporting and recordkeeping burden for Protection (CBP) regulations at 19 CFR Agency’s estimated burden. The this collection of information is 12.112 require that an importer desiring Supporting Statement for each ICR, a estimated to average 15,741 for state to import a pesticide or device into the copy of which is available in the government applicants for FIFRA United States shall, prior to the corresponding docket, provides a more section 18 program. The ICR, a copy of shipment’s arrival in the United States, detailed explanation. which is available in the docket, provides a detailed explanation of this submit a Notice of Arrival of Pesticides A. Docket ID Number EPA–HQ–OPP– estimate, which is only briefly and Devices (EPA Form 3540–1) to EPA. 2011–0737 summarized here: EPA Form 3540–1 requires the Title: Application and Summary Estimated total number of potential identification and contact information Report for an Emergency Exemption for respondents: 60. of parties involved in the importation of Pesticides. Frequency of response: On occasion. the pesticide or device and information on the identity of the imported pesticide ICR numbers: EPA ICR No. 0596.10, Estimated total average number of or device shipment. EPA will review the OMB Control No. 2070–0032. responses for each respondent: 2–3. ICR status: The approval for this ICR form and indicate the disposition of the Estimated total annual burden hours: is scheduled to expire on July 31, 2012. shipment upon its arrival in the United Affected entities: Entities potentially 15,741 hours. States. Upon completing Form 3540–1, affected by this ICR include Estimated total annual costs: EPA returns the form to the importer of Administration of Environmental $917,993. This is the estimated burden record or authorized agent, who must Quality Programs, subsector groups, or cost; there is no cost for capital present the form to CBP upon arrival of government establishments primarily investment or maintenance and the shipment at the port of entry. This engaged in the administration of operational costs in this information is necessary to ensure that EPA is environmental quality. collection. notified of the arrival of pesticides and Abstract: This Information Collection Changes in the estimates from the last devices as required under the FIFRA Request (ICR) is a renewal of an existing approval: The renewal of this ICR will section 17(c), and that EPA has the ICR that is currently approved by OMB result in an overall decrease of 33,759 ability to examine such shipments to and is due to expire July 31, 2012. hours in the total estimated respondent determine compliance with FIFRA. Section 18 of the Federal Insecticide, burden identified in the currently Upon the arrival of the shipment, the Fungicide, and Rodenticide Act (FIFRA) approved ICR. The total annual importer presents the completed notice authorizes EPA to grant emergency respondent burden cost has decreased of arrival (NOA) to the CBP District exemptions to states and Federal due to a change in the average number Director at the port of entry. CBP agencies to allow an unregistered use of of section 18s requested per year from compares entry documents for the a pesticide for a limited time if EPA 494 to 159. For the next renewal cycle shipment with the NOA and notifies the determines that emergency conditions the Agency projects it will receive EPA regional office of any exist. A section 18 action arises when approximately 159 section 18 discrepancies. growers and others encounter a pest applications each year over the next During this renewal of this problem on a site for which there is three years. The Agency believes that information collection, EPA proposes to either no registered pesticide available, respondents will experience some amend Form 3540–1. The proposed or for which there is a registered burden reduction over the next three amendments clarify the instructions for pesticide that would be effective but is years due to the streamlined completing the form, revise the data not yet approved for use on that recertification process for section 18 items, and update the terminology used particular site. Section 18 also allows applications. on the form to be consistent with those

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77820 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

used by CBP. In addition, EPA is ICR numbers: EPA ICR No. 0277.16, operational costs in this information capturing the burden of providing OMB Control No. 2070–0060. collection. supplemental information submitted ICR status: The approval for this ICR Changes in the estimates from the last with Form 3540–1 to the Agency by is scheduled to expire on July 31, 2012. approval: The renewal of this ICR will most importers on a voluntary basis. Affected entities: Entities potentially result in an overall decrease of 20,768 Burden statement: The annual public affected by this ICR are individuals or hours in the total estimated respondent reporting and recordkeeping burden for entities engaged in activities related to burden identified in the currently this collection of information is the registration of pesticide products. approved ICR. This decrease reflects estimated to average 0.43 hours per The NAICS code assigned to the entities fewer expected responses across all response. The ICR, a copy of which is responding to this information is response types. The reduction in EPA’s available in the docket, provides a 325300 (pesticide and other agricultural response estimate is primarily from a detailed explanation of this estimate, and chemical manufacturing). reduction in ‘‘Type B’’ activities, which which is only briefly summarized here: Abstract: This ICR renewal will allow include amendments and notifications, Estimated total number of potential EPA to collect necessary data to in the Antimicrobial Division. Based on respondents: 28,000. evaluate an application of a pesticide experience over the past three years, the Frequency of response: On occasion. product as required under section 3 of Agency has reduced the number of Estimated total average number of FIFRA, and the Federal Food, Drug, and responses to reflect estimates closer to responses for each respondent: 1. Cosmetic Act (FFDCA), as amended by actual number of responses. In addition, Estimated total annual burden hours: the Food Quality Protection Act (FQPA) due to some industry consolidation and 12,040 hours. of August 3, 1996. Under FIFRA, EPA based on registration maintenance fee Estimated total annual costs: must evaluate pesticides thoroughly data, EPA has identified 42 fewer ICR $685,146. This is the estimated burden before they can be marketed and used in respondents. This change is an cost; there is no cost for capital the United States, to ensure that they adjustment. investment or maintenance and will not pose unreasonable adverse V. What is the Next Step in the Process operational costs in this information effects to human health and the for these ICRs? collection. environment. Pesticides that meet this test are granted a license or EPA will consider the comments Changes in the estimates from the last received and amend the individual ICRs approval: The renewal of this ICR will ‘‘registration’’ which permits their distribution, sale, and use according to as appropriate. The final ICR packages result in an overall increase of 4,540 will then be submitted to OMB for hours in the total estimated respondent requirements set by EPA to protect human health and the environment. The review and approval pursuant to 5 CFR burden identified in the currently 1320.12. EPA will issue another Federal approved ICR. This increase is a result producer of the pesticide must provide data from tests done according to EPA Register notice pursuant to 5 CFR of an increase in the annual number of 1320.5(a)(1)(iv) to announce the NOAs submitted and an increase in the guidelines or other test methods that provide acceptable data. These tests submission of these ICRs to OMB and burden hours per response. The annual the opportunity for the public to submit number of NOAs submitted to EPA must determine whether a pesticide has the potential to cause adverse effects on additional comments for OMB increased from 25,000 to 28,000. The consideration. If you have any questions average burden hours per response will humans, wildlife, fish and plants, including endangered species and non- about any of these ICRs or the approval change from 0.3 hours for the previous process in general, please contact the ICR renewal to 0.43 hours for this ICR target organisms, as well as possible person listed under FOR FURTHER renewal. This change in burden hours contamination of surface water or INFORMATION CONTACT. per response is a result of changes to the groundwater from leaching, runoff and data items on Form 3450–1, as well as spray drift. EPA also must approve the List of Subjects language that appears on each pesticide an accounting of the burden of Environmental protection, Reporting label. A pesticide product can only be voluntarily submitting certain and recordkeeping requirements. information. Specifically, this burden used according to the directions on the estimate accounts for the new burdens labeling accompanying it at the time of Dated: December 7, 2011. related to providing information for the sale, through its use and disposal. James Jones, telephone numbers and email addresses Burden statement: The annual public Acting Assistant Administrator, Office of of the shipper, importer of record, reporting and recordkeeping burden for Chemical Safety and Pollution Prevention. licensed broker, and ultimate consignee this collection of information is [FR Doc. 2011–32075 Filed 12–13–11; 8:45 am] when supplying name and address estimated to range from 14 hours to 840 BILLING CODE 6560–50–P information, and that the complete hours, depending upon the type of address, including telephone and email response. The ICR, a copy of which is address, of the carrier be provided. In available in the docket, provides a ENVIRONMENTAL PROTECTION addition, EPA is accounting for the detailed explanation of this estimate, AGENCY burden of voluntarily providing active which is only briefly summarized here: [EPA–HQ–OAR–2004–0015 and EPA–HQ– ingredients and percentage of each, Estimated total number of potential OAR–2004–0016; FRL–9506–5] supporting documentation for registered respondents: 1,758. and unregistered pesticides, as well as Frequency of response: On occasion. Agency Information Collection intended use information for Estimated total average number of Activities; Proposed Collections; unregistered pesticides. This change is responses for each respondent: 1. Comment Request; State Operating an adjustment. Estimated total annual burden hours: Permit Program (Renewal) and Federal 55,412 hours. Operating Permit Program (Renewal) C. Docket ID Number EPA–HQ–OPP– Estimated total annual costs: 2011–0886 AGENCY: Environmental Protection $4,101,100. This is the estimated burden Agency (EPA). Title: Application for New and cost; there is no cost for capital ACTION: Notice. Amended Pesticide Registration. investment or maintenance and

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77821

SUMMARY: In compliance with the an ‘‘anonymous access’’ system, which What information is the EPA Paperwork Reduction Act (PRA) (44 means the EPA will not know your particularly interested in? U.S.C. 3501 et seq.), this document identity or contact information unless Pursuant to section 3506(c)(2)(A) of announces that the EPA is planning to you provide it in the body of your the PRA, the EPA specifically solicits submit a request to renew two existing comment. If you send an email comments and information to enable it approved Information Collection comment directly to the EPA without to: Requests (ICR) to the Office of going through http://www.regulations. (i) Evaluate whether the proposed Management and Budget (OMB). The gov, your email address will be collection of information is necessary two ICRs are scheduled to expire on automatically captured and included as for the proper performance of the April 30, 2012. Before submitting the part of the comment that is placed in the functions of the agency, including two ICRs to OMB for review and public docket and made available on the whether the information will have approval, the EPA is soliciting Internet. If you submit an electronic practical utility; comments on specific aspects of the comment, the EPA recommends that (ii) Evaluate the accuracy of the proposed information collections as you include your name and other agency’s estimate of the burden of the described below. contact information in the body of your proposed collection of information, DATES: Comments must be submitted on comment and with any disk or CD–ROM including the validity of the or before February 13, 2012. you submit. If the EPA cannot read your methodology and assumptions used; ADDRESSES: Submit your comments, comment due to technical difficulties (iii) Enhance the quality, utility and identified by Docket ID No. EPA–HQ– and cannot contact you for clarification, clarity of the information to be OAR–2004–0015 (for the part 70 state the EPA may not be able to consider collected; and program) or Docket ID No. EPA–HQ– your comment. Electronic files should (iv) Minimize the burden of the OAR–2004–0016 (for the part 71 Federal avoid the use of special characters, any collection of information on those who program), by one of the following form of encryption and be free of any are to respond, including through the methods: defects or viruses. For additional use of appropriate automated electronic, • http://www.regulations.gov: Follow information about the EPA’s public mechanical or other technological the on-line instructions for submitting docket, visit the EPA Docket Center collection techniques or other forms of comments. homepage at http://www.epa.gov/ information technology, e.g., permitting • Email: [email protected]. epahome/dockets.htm. electronic submission of responses. In • Fax: (202) 566–9744. FOR FURTHER INFORMATION CONTACT: Mr. particular, the EPA is requesting • Mail: U.S. Environmental Jeff Herring, Air Quality Policy Division, comments from very small businesses Protection Agency, Air and Radiation Office of Air Quality Planning and (those that employ less than 25) on Docket and Information Center, Standards (C504–05), Environmental examples of specific additional efforts Mailcode: 2822T, 1200 Pennsylvania Protection Agency, Research Triangle that the EPA could make to reduce the Ave. NW., Washington, DC 20460. Park, North Carolina 27711; telephone paperwork burden for very small Attention: Docket ID No. EPA–HQ– number: (919) 541–3195; fax number: businesses affected by this collection. OAR–2004–0015 (for Part 70) or Docket (919) 541–5509; email address: herring. ID No. EPA–HQ–OAR–2004–0016 (for [email protected]. What should I consider when I prepare my comments for the EPA? Part 71). Please include a total of two SUPPLEMENTARY INFORMATION: copies. You may find the following • How can I access the docket and/or Hand Delivery: EPA Docket Center, suggestions helpful for preparing your submit comments? Public Reading Room, EPA West, Room comments: 3334, 1301 Constitution Ave. NW., The EPA has established a public 1. Explain your views as clearly as Washington, DC 20460. Such deliveries docket for the Part 70 ICR renewal possible and provide specific examples. are only accepted during the Docket’s under Docket ID No. EPA–HQ–OAR– 2. Describe any assumptions that you normal hours of operation, and special 2004–0015 and a public docket for the used. arrangements should be made for Part 71 ICR renewal under Docket ID 3. Provide copies of any technical deliveries of boxed information. No. EPA–HQ–OAR–2004–0016, which information and/or data you used that Instructions: Direct your comments to are available for online viewing at support your views. Docket ID No. EPA–HQ–OAR–2004– http://www.regulations.gov, or in person 4. If you estimate potential burden or 0015 for the ICR renewal for the part 70 viewing at the Air and Radiation Docket costs, explain how you arrived at the state permitting program or EPA–HQ– in the EPA Docket Center (EPA/DC), estimate that you provide. OAR–2004–0016 for the ICR renewal for EPA West, Room 3334, 1301 5. Offer alternative ways to improve the part 71 Federal (EPA) permitting Constitution Ave., NW., Washington, the collection activity. program. The EPA’s policy is that all DC The EPA/DC Public Reading Room 6. Make sure to submit your comments received will be included in is open from 8:30 a.m. to 4:30 p.m., comments by the deadline identified the public docket without change and Monday through Friday, excluding legal under DATES. may be made available online at holidays. The telephone number for the 7. To ensure proper receipt by the http://www.regulations.gov, including Public Reading Room is (202) 566–1744. EPA, be sure to identify the docket ID any personal information provided, Use http://www.regulations.gov to number assigned to this action in the unless the comment includes obtain a copy of the draft collection of subject line on the first page of your information claimed to be Confidential information, submit or view public response. You may also provide the Business Information (CBI) or other comments, access the index listing of name, date, and Federal Register information whose disclosure is the contents of the docket and access citation. restricted by statute. Do not submit those documents in the public docket information that you consider to be CBI that are available electronically. Once in What information collection activity or otherwise protected through http:// the system, select ‘‘search,’’ then key in does this apply to? www.regulations.gov or email. The the docket ID number identified in this Affected entities: Entities potentially http://www.regulations.gov Web site is document. affected by this action are those which

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77822 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

must apply for and obtain an operating local agencies do not have jurisdiction, necessary during the term of the permit. permit under title V of the Clean Air Act such as Indian Country and offshore The second rule establishes levels (Act). These, in general, include sources beyond states’ seaward boundaries. where GHG emissions trigger permitting which are defined as ‘‘major’’ under any In order to receive an operating requirements. The information title of the Act. permit for a major or other source collection requirements for these Title: Part 70 State Operating Permit subject to either of the permitting regulatory revisions were approved by Program (Renewal) and Part 71 Federal programs, the applicant must conduct OMB after the approval of the 2007 ICR Operating Permit Program (Renewal). the necessary research, perform the renewal and those approved changes are ICR number: For the Part 70 appropriate analyses and prepare the included and updated in these ICR regulations, EPA ICR No. 1587.12 and permit application with documentation renewals. Also, the previous part 71 ICR OMB Control No. 2060–0243. For the to demonstrate that their project meets renewal identifed the EPA as the sole Part 71 regulations, EPA ICR No. all applicable statutory and regulatory permitting authority, while this part 71 1713.10 and OMB Control No. 2060– requirements. Specific activities and renewal identifies the EPA and one 0336. requirements are listed and described in delegate agency, the Navajo Nation, as ICR status: The two ICRs are both the Supporting Statements for the two permitting authorities (the EPA scheduled to expire on April 30, 2012. ICRs. continues to serve as a permitting Abstract: Title V of the Act requires State and local agencies under part 70 authority in all areas, while the delegate states to develop and implement a and the EPA (or a delegate agency) agency serves as a permitting authority program for issuing operating permits to under part 71 review permit in a limited portion of Indian country). all sources that fall under any Act applications, provide for public review definition of ‘‘major’’ and certain other of proposed permits, issue permits Information that is collected is non-major sources that are subject to based on consideration of all technical handled according to the EPA’s policies federal air quality regulations. The Act factors and public input, and review set forth in title 40, chapter 1, part 2, further requires the EPA to develop information submittals required of subpart B—Confidentiality of Business regulations that establish the minimum sources during the term of the permit. Information (see 40 CFR part 2). See also requirements for those state operating Also, under part 70, the EPA reviews section 114(c) of the Act. permits programs, to oversee certain actions of the state and local Burden Statement: Burden means the implementation of the state programs, agencies and provides oversight of the total time, effort or financial resources and to operate a federal operating programs to ensure that they are being expended by persons to generate, permits program in areas not subject to adequately implemented and enforced. maintain, retain or disclose or provide an approved state program. An agency Under part 71, the EPA reviews certain information to or for a federal agency. may not conduct or sponsor, and a actions and performs oversight for any This includes the time needed to review person is not required to respond to, a delegate agency, consistent with the instructions; develop, acquire, install collection of information request unless terms of a delegation agreement. and utilize technology and systems for it displays a currently valid OMB Consequently, information prepared and control number. The OMB control the purposes of collecting, validating submitted by sources is essential for and verifying information, processing numbers for the EPA’s regulations in 40 sources to receive permits, and for and maintaining information and CFR are listed in 40 CFR part 9 and 48 Federal, state, and local permitting disclosing and providing information; CFR chapter 15. The EPA regulations agencies to adequately review the adjust the existing ways to comply with setting forth requirements for the state permit applications and thereby any previously applicable instructions operating permit program are at 40 CFR properly administer and manage the part 70 and the EPA regulations setting program. and requirements; train personnel to be forth the requirements for the federal Since the previous renewal of this able to respond to a collection of (EPA) operating permit program are at ICR, the EPA has promulgated two information; search data sources; 40 CFR part 71. The part 70 program is changes to the part 70 and 71 complete and review the collection of designed to be implemented primarily regulations: the Flexible Air Permits information; and transmit or otherwise by state and local permitting authorities rule and the Greenhouse Gas (GHG) disclose the information. in all areas where they have Tailoring rule. The first rule provides a The annual public reporting and jurisdiction. The part 71 program is mechanism for sources to establish recordkeeping burden for the collection designed to be implemented primarily provisions in their operating permits of information under parts 70 and part by the EPA in all areas where state and that result in fewer permit revisions 71 is broken down as follows:

Type of permit action Part 70 Part 71

Permitting Authority: Number of Sources ...... 15,940 174 Burden Hours per Response: Sources ...... 250 215 Permitting Authority ...... 84 94 Total Annual Burden Hours: Sources ...... 3,977,118 37,413 Permitting Authority ...... 1,334,766 1,318 a

Any minor discrepencies are due to rounding. a Only delegate agency burden is shown for part 71.

Respondents/Affected Entities: Estimated Number of Respondents: authorities. For part 71, there are 174 Industrial plants (sources); state, local, For part 70, there are 15,940 sources and industry sources and 1 tribal delegate and tribal permitting authorities. 112 state and local permitting permitting authority (the EPA serves as

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77823

a permitting authority but is not a another Federal Register notice NW., Washington, DC 20460; telephone respondent). pursuant to 5 CFR 1320.5(a)(1)(iv) to number: (202) 564–4113; fax number: Estimated Total Annual Burden: For announce the submission of the ICRs to (202) 564–0050; email address: part 70, the total annual burden for OMB and the opportunity to submit [email protected]. sources and state and local permitting additional comments to OMB. If you SUPPLEMENTARY INFORMATION: EPA has authorities is 5,311,884 hours and the have any questions about this ICR or the submitted the following ICR to OMB for total annual cost is $226,736,622. For approval process, please contact the review and approval according to the part 71, the total annual burden for FOR technical person listed under procedures prescribed in 5 CFR 1320.12. sources and the one delegate agency FURTHER INFORMATION CONTACT. On May 9, 2011 (76 FR 26900), EPA (tribal) is 38,731 hours and the total Dated: December 8, 2011. sought comments on this ICR pursuant annual cost is $1,865,183. Mary E. Henigin, to 5 CFR 1320.8(d). EPA received no Are there changes in the estimates from Acting Office Director, Office of Air Quality comments. Any additional comments on the last approval? Planning and Standards. this ICR should be submitted to both Since the last renewal of the part 70 [FR Doc. 2011–32062 Filed 12–13–11; 8:45 am] EPA and OMB within 30 days of this ICR (in 2007), there is a decrease of 214 BILLING CODE 6560–50–P notice. thousand hours (or about a 4 percent EPA has established a public docket decrease) of annual respondent burden. for this ICR under docket ID number This change is primarily due to an ENVIRONMENTAL PROTECTION EPA–HQ–OECA–2011–0218, which is updated estimate of the number of AGENCY available for public viewing online at permits expected compared to the last [EPA–HQ–OECA–2011–0218; FRL–9501–2] http://www.regulations.gov, in person ICR renewal. To a lesser extent, this viewing at the Enforcement and decrease is due to reduced permit Agency Information Collection Compliance Docket in the EPA Docket renewal activity related to Activities; Submission to OMB for Center (EPA/DC), EPA West, Room implementation of the Flexible Permits Review and Approval; Comment 3334, 1301 Constitution Avenue NW., rule. Although the GHG Tailoring rule Request; NSPS for Metallic Mineral Washington, DC. The EPA Docket increased the number of source Processing Plants (Renewal) Center Public Reading Room is open respondents by 552, the increase in from 8:30 a.m. to 4:30 p.m., Monday AGENCY: Environmental Protection through Friday, excluding legal burden was more than offset by the Agency (EPA). decrease in burden from the updated holidays. The telephone number for the ACTION: estimate of the number of permits and Notice. Reading Room is (202) 566–1744, and the decreased burden from the SUMMARY: In compliance with the the telephone number for the implementation of the Flexible Air Paperwork Reduction Act (44 U.S.C. Enforcement and Compliance Docket is Permits rule. Also, the annual per 3501 et seq.), this document announces (202) 566–1752. respondent burden has changed very that an Information Collection Request Use EPA’s electronic docket and little since the last part 70 ICR renewal (ICR) has been forwarded to the Office comment system at http:// (248 hours previously compared to the of Management and Budget (OMB) for www.regulations.gov, to either submit or new estimate of 250 hours or about a 1 review and approval. This is a request view public comments, access the index percent increase). to renew an existing approved listing of the contents of the docket, and Since the last renewal of the part 71 collection. The ICR which is abstracted to access those documents in the docket ICR (in 2007), there is an increase of 10 below describes the nature of the that are available electronically. Once in thousand hours of total annual collection and the estimated burden and the system, select ‘‘docket search,’’ then respondent burden (about a 36 percent cost. key in the docket ID number identified above. Please note that EPA’s policy is increase). This is primarily due to an DATES: Additional comments may be that public comments, whether updated estimate of the number of submitted on or before January 13, 2012. permits expected (123 permits in the submitted electronically or in paper, ADDRESSES: Submit your comments, prior renewal versus 174 permits in this will be made available for public referencing docket ID number EPA–HQ– renewal or a 42 percent increase), which viewing at http://www.regulations.gov OECA–2011–0218, to: (1) EPA online is due to increased energy development as EPA receives them and without using www.regulations.gov (our (oil and gas exploration and alternative change, unless the comment contains preferred method), or by email to energy development) in offshore areas copyrighted material, Confidential [email protected], or by mail to: EPA under the EPA jurisdiction. In the Business Information (CBI), or other Docket Center (EPA/DC), Environmental current part 71 renewal, the Flexible Air information whose public disclosure is Protection Agency, Enforcement and Permits rule and the GHG Tailoring rule restricted by statute. For further Compliance Docket and Information result in nearly offseting decreases and information about the electronic docket, Center, mail code 2822IT, 1200 increases in burden. Also, even though go to http://www.regulations.gov. Pennsylvania Avenue NW., Washington, the total annual burden has increased Title: NSPS for Metallic Mineral DC 20460; and (2) OMB at: Office of compared to the prior ICR renewal, the Processing Plants (Renewal). Information and Regulatory Affairs, annual per source burden has decreased ICR Numbers: EPA ICR Number Office of Management and Budget by about 3 percent. 0982.10, OMB Control Number 2060– (OMB), Attention: Desk Officer for EPA, 0016. What is the next step in the process for 725 17th Street NW., Washington, DC ICR Status: This ICR is scheduled to this ICR? 20503. expire on December 31, 2011. Under The EPA will consider the comments FOR FURTHER INFORMATION CONTACT: OMB regulations, the Agency may received and amend the ICR as Learia Williams, Monitoring, continue to conduct or sponsor the appropriate. The final ICR package will Assistance, and Media Programs collection of information while this then be submitted to OMB for review Division, Office of Compliance, Mail submission is pending at OMB. and approval pursuant to 5 CFR Code 2223A, Environmental Protection Abstract: The New Source 1320.12. At that time, the EPA will issue Agency, 1200 Pennsylvania Avenue Performance Standards (NSPS) for

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77824 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Metallic Mineral Processing Plants (40 technology and systems for the purposes (FIFRA), as amended. This cancellation CFR part 60, subpart LL) were of collecting, validating, and verifying order follows a June 22, 2011 Federal promulgated on February 21, 1984, and information, processing and Register Notice of Receipt of Requests amended on October 17, 2000. This maintaining information, and disclosing from the registrants listed in Table 3 of NSPS affects both owners and operators and providing information; adjust the Unit II to voluntarily cancel these of metallic mineral processing plants. existing ways to comply with any product registrations. These are the last Owners and operators must conduct previously applicable instructions and products containing this pesticide initial performance tests, maintain requirements which have subsequently registered for use in the United States. records of startups, shutdowns, changed; train personnel to be able to In the June 22, 2011 notice, EPA malfunctions, and continuous respond to a collection of information; indicated that it would issue an order monitoring system parameters, and search data sources; complete and implementing the cancellations, unless submit semiannual reports. These review the collection of information; the Agency received substantive notifications, reports, and records are and transmit or otherwise disclose the comments within the 30 day comment essential in determining compliance; information. period that would merit its further and, in general, are required of all Respondents/Affected Entities: review of these requests, or unless the sources subject to NSPS. Metallic mineral processing plants. registrants withdrew their requests. The Notifications are to inform the Agency Estimated Number of Respondents: Agency did not receive any comments or delegated authority when a source 20. on the notice. Further, the registrants becomes subject to the standard. The Frequency of Response: Initially, did not withdraw their requests. reviewing authority may then inspect occasionally, and semiannually. Accordingly, EPA hereby issues in this the source to check if the pollution Estimated Total Annual Hour Burden: notice a cancellation order granting the control devices are properly installed 2,306. requested cancellations. Any and operating, and that the standards Estimated Total Annual Cost: distribution, sale, or use of the products are being met. Performance test reports $233,712, which includes $220,712 in subject to this cancellation order is are required as these are the Agency’s labor costs, no capital/startup costs, and permitted only in accordance with the records of a source’s initial capability to $13,000 in operation and maintenance terms of this order. 11P–1531 comply with the emission standards and (O&M) costs. DATES: The cancellation of the technical to serve as a record of the operating Changes in the Estimates: There is no dicofol product is effective December conditions under which compliance are change in the labor hours to the 14, 2011. The cancellations of the end to be achieved. The information respondents in this ICR compared to the use registrations are effective October generated by monitoring, recordkeeping, previous ICR. After consulting the 31, 2013. and reporting requirements described in Office of Air Quality Planning and FOR FURTHER INFORMATION CONTACT: this ICR are used by the Agency to Standards (OAQPS) and trade Susan M. Bartow, Pesticide Re- ensure that facilities affected by the associations, our data indicates that evaluation Division (7508P), Office of standard continue to operate the control there are approximately 20 sources Pesticide Programs, Environmental equipment and achieve continuous subject to the rule, with no additional Protection Agency, 1200 Pennsylvania compliance with the regulation. new sources over the next three years. All reports are sent to the delegated Ave. NW., Washington, DC 20460–0001; However, there is an increase in the telephone number: (703) 603–0065; state or local authority. In the event that estimated burden cost as currently there is no such delegated authority, the email address: [email protected]. identified in the OMB Inventory of reports are sent directly to the EPA SUPPLEMENTARY INFORMATION: approved Burdens. The increase is not regional office. This information is due to any program changes, but the I. General Information being collected to assure compliance change in burden is due to the use of the with 40 CFR part 63, subpart LL, as A. Does this action apply to me? most updated labor rates. authorized in section 112 and 114(a) of This action is directed to the public the Clean Air Act. The required John Moses, in general, and may be of interest to a information consists of emissions data Director, Collection Strategies Division. wide range of stakeholders including and other information that have been [FR Doc. 2011–32088 Filed 12–13–11; 8:45 am] environmental, human health, and determined to be private. BILLING CODE 6560–50–P agricultural advocates; the chemical An agency may not conduct or industry; pesticide users; and members sponsor, and a person is not required to of the public interested in the sale, respond to, a collection of information ENVIRONMENTAL PROTECTION distribution, or use of pesticides. Since unless it displays a currently valid OMB AGENCY others also may be interested, the Control Number. The OMB Control Agency has not attempted to describe all [EPA–HQ–OPP–2005–0220; FRL–9326–5] Numbers for the EPA regulations are the specific entities that may be affected listed in 40 CFR part 9 and 48 CFR Dicofol; Cancellation Order for Certain by this action. If you have any questions chapter 15, and are identified on the Pesticide Registrations regarding the applicability of this action form and/or instrument, if applicable. to a particular entity, consult the person Burden Statement: The annual public AGENCY: Environmental Protection listed under FOR FURTHER INFORMATION reporting and recordkeeping burden for Agency (EPA). CONTACT. this collection of information is ACTION: Notice. estimated to average 52 hours per B. How can I get copies of this document response. Burden means the total time, SUMMARY: This notice announces EPA’s and other related information? effort, or financial resources expended order for the cancellations, voluntarily EPA has established a docket for this by persons to generate, maintain, retain, requested by the registrants and action under docket identification (ID) or disclose or provide information to or accepted by the Agency, of products number EPA–HQ–OPP–2005–0220. for a Federal agency. This includes the containing dicofol, pursuant to section Publicly available docket materials are time needed to review instructions; 6(f)(1) of the Federal Insecticide, available either in the electronic docket develop, acquire, install, and utilize Fungicide, and Rodenticide Act at http://www.regulations.gov, or, if only

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77825

available in hard copy, at the Office of voluntary cancellations of products registrants is permitted until December Pesticide Programs (OPP) Regulatory listed in Tables 1 and 2 of Unit II. 31, 2013. Thereafter, sale and Public Docket in Rm. S–4400, One distribution of end use products by IV. Cancellation Order Potomac Yard (South Bldg.), 2777 S. persons other than registrants is Crystal Dr. Arlington, VA. The hours of Pursuant to FIFRA section 6(f), EPA prohibited except for export consistent operation of this Docket Facility are hereby approves the requested with the requirements of FIFRA section from 8:30 a.m. to 4 p.m., Monday cancellations and amendments to 17 or for purposes of proper disposal. through Friday, excluding legal terminate the uses of dicofol d. Use of existing stocks of any end- holidays. The Docket Facility telephone registrations identified in Tables 1 and use product consistent with the terms of number is (703) 305–5805. 2 of Unit II. Accordingly, the the previously approved labeling on, or cancellation of the technical dicofol accompanied by, the deleted products II. What action is the agency taking? product is effective immediately. The identified shall be allowed until October This notice announces the cancellation of the end use registrations 31, 2016, and thereafter, only for the cancellation of dicofol products, as is effective October 31, 2013. Any purposes of proper disposal. distribution, sale, or use of existing requested by registrants, pursuant to List of Subjects section 6(f) of FIFRA. These stocks of the products identified in registrations are listed in sequence by Tables 1 and 2 of Unit II in a manner Environmental protection, Pesticides registration number in Table 1 and inconsistent with any of the provisions and pests. Table 2 of this unit. for disposition of existing stocks set Dated: December 6, 2011. forth in Unit VI will be a violation of Richard P. Keigwin, Jr., FIFRA. TABLE 1—DICOFOL TECHNICAL Director, Pesticide Re-evaluation Division, PRODUCT CANCELLATION V. What is the agency’s authority for Office of Pesticide Programs. taking this action? [FR Doc. 2011–31987 Filed 12–13–11; 8:45 am] EPA registration BILLING CODE 6560–50–P No. Product name Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may 11603–26 ...... Mitigan (Dicofol) Tech- at any time request that any of its nical. pesticide registrations be canceled or ENVIRONMENTAL PROTECTION amended to terminate one or more uses. AGENCY FIFRA further provides that, before [EPA–HQ–ORD–2011–0953; FRL–9506–6] TABLE 2—DICOFOL END USE acting on the request, EPA must publish PRODUCT CANCELLATIONS a notice of receipt of any such request Human Studies Review Board; in the Federal Register. Thereafter, Notification of a Public Teleconference EPA registration Product name following the public comment period, No. AGENCY: Environmental Protection the EPA Administrator may approve Agency. 66222–21 ...... MANA Dicofol 4E. such a request. The notice of receipt for 66222–56 ...... Dicofol 4E. this action was published for comment ACTION: Notice. 66222–95 ...... Dicofol 50WSB. on June 22, 2011 (76 FR 36535) (FRL– SUMMARY: The EPA Office of the Science 8875–7). The comment period closed on Advisor announces a public Table 3 of this unit includes the July 22, 2011. teleconference of the HSRB to discuss names and addresses of record for all VI. Provisions for Disposition of its draft report from the October 19–20, registrants of the products listed in Existing Stocks 2011 HSRB meeting. Tables 1 and 2 of this unit, in sequence DATES: The teleconference will be held by EPA company number. Existing stocks are those stocks of registered pesticide products which are on Wednesday, January 11, 2012 from approximately 1 p.m. to approximately TABLE 3—REGISTRANTS OF currently in the United States and 4 p.m. Eastern Time. Comments may be CANCELLED PRODUCTS which were packaged, labeled, and released for shipment prior to the submitted on or before Wednesday, January 4, 2012. EPA company Company name and effective date of the action. The existing No. address stocks provision for the products subject ADDRESSES: Submit your written to this order is as follows: comments, identified by Docket ID No. 11603 ...... Agan Chemical Manufac- a. Sale, distribution and use of the EPA–HQ–ORD–2011–0953, by one of turing Ltd, 4515 Falls of technical dicofol is prohibited, except: the following methods: Neuse Rd. Suite 300, Registrants of dicofol end-use products Internet: http://www.regulations.gov: Raleigh, NC 27609. Follow the Web site instructions for 66222 ...... Makhteshim Agan of shall be allowed to reformulate existing North America, Inc, stocks of dicofol technical into products submitting comments. 4515 Falls of Neuse identified in Table 2 of Unit II, until Email: [email protected]. Rd. Suite 300, Raleigh, October 31, 2013, or for products Mail: Environmental Protection NC 27609. intended for export consistent with the Agency, EPA Docket Center EPA/DC, requirements of FIFRA section 17 or for ORD Docket, Mail Code 28221T, 1200 III. Summary of Public Comments purposes of proper disposal. Pennsylvania Avenue NW., Washington, Received and Agency Response to b. Sale and distribution by registrants DC 20460. Comments of end use products after October 31, Hand Delivery: The EPA/DC Public 2013 is prohibited except for export Reading Room is located in the EPA During the public comment period consistent with the requirements of Headquarters Library, Room Number provided, EPA received no comments in FIFRA section 17 or for purposes of 3334 in the EPA West Building, located response to the June 22, 2011 Federal proper disposal. at 1301 Constitution Avenue NW., Register notice announcing the c. Sale and distribution of end use Washington, DC 20460. The hours of Agency’s receipt of the requests for products by persons other than operation are 8:30 a.m. to 4:30 p.m.

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77826 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Eastern Time, Monday through Friday, SUPPLEMENTARY INFORMATION: the ORD Docket, EPA/DC Public excluding Federal holidays. Please call Location: The meeting will take place Reading Room. The EPA/DC Public (202) 566–1744 or email the ORD via telephone only. Reading Room is located in the EPA Docket at [email protected] for Meeting access: For information on Headquarters Library, Room Number instructions. Updates to Public Reading access or services for individuals with 3334 in the EPA West Building, located Room access are available online at disabilities, please contact Lu-Ann at 1301 Constitution Avenue NW., http://www.epa.gov/epahome/ Kleibacker at least ten business days Washington, DC 20460; its hours of dockets.htm. prior to the meeting using the operation are 8:30 a.m. to 4:30 p.m. Instructions: Direct your comments to information under FOR FURTHER Eastern Time, Monday through Friday, Docket ID No. EPA–HQ–ORD–2011– INFORMATION CONTACT, so that excluding Federal holidays. Please call 0953. The Agency’s policy is that all appropriate arrangements can be made. (202) 566–1744, or email the ORD comments received will be included in Procedures for providing public input: Docket at [email protected] for the public docket without change and Interested members of the public may instructions. Updates regarding the may be made available online at submit relevant written or oral Public Reading Room access are http://www.regulations.gov, including comments for the HSRB to consider available at http://www.epa.gov/ any personal information provided, during the advisory process. Additional epahome/dockets.htm. unless the comments includes information concerning submission of C. What should I consider as I prepare information claimed to be Confidential relevant written or oral comments is my comments for EPA? Business Information or other provided in section I, ‘‘Public Meeting,’’ information the disclosure of which is under subsection D, ‘‘How May I You may find the following restricted by statute. Do not submit Participate in this Meeting?’’ of this suggestions helpful for preparing your information that you consider to be CBI notice. comments: 1. Explain your views as clearly as or otherwise protected through http:// I. Public Meeting www.regulations.gov or email. The possible. http://www.regulations.gov Web site is A. Does this action apply to me? 2. Describe any assumptions that you used. an ‘‘anonymous access’’ system, which This action is directed to the public means the EPA will not know your 3. Provide copies of any technical in general. This action may, however, be information and/or data used that identity or contact information unless of particular interest to persons who you provide it in the body of your support your views. conduct or assess human studies, 4. Provide specific examples to comment. If you send an email especially studies on substances illustrate your concerns and suggest comment directly to the EPA without regulated by the EPA, or to persons who alternatives. going through http:// are, or may be required to conduct 5. To ensure proper receipt by the www.regulations.gov, your email testing of chemical substances under the EPA, be sure to identify the docket ID address will be automatically captured Federal Food, Drug, and Cosmetic Act number assigned to this action in the and included as part of the comment or the Federal Insecticide, Fungicide, subject line on the first page of your that is placed in the public docket and and Rodenticide Act. Since other response. You may also provide the made available on the Internet. If you entities may also be interested, the name, date and Federal Register submit an electronic comment, the EPA Agency has not attempted to describe all citation. recommends that you include your the specific entities that may be affected name and other contact information in by this action. If you have any questions D. How may I participate in this the body of your comments and with regarding the applicability of this action meeting? any disk or CD–ROM you submit. If the to a particular entity, consult Jim You may participate in this meeting EPA cannot read your comment due to Downing or Lu-Ann Kleibacker listed by following the instructions in this technical difficulties and cannot contact under FOR FURTHER INFORMATION section. To ensure proper receipt by the you for clarification, the EPA may not CONTACT. EPA, it is imperative that you identify be able to consider your comment. Docket ID No. EPA–HQ–ORD–2011– Electronic files should avoid the use of B. How can I access electronic copies of 0953 in the subject line on the first page special characters, any form of this document and other related of your request. encryption, and be free of any defects or information? 1. Oral comments. Requests to present viruses. You may use http:// oral comments will be accepted up to FOR FURTHER INFORMATION CONTACT: Any www.regulations.gov, or you may access and including Wednesday, January 4, members of the public who wish to this Federal Register document via the 2012. To the extent that time permits, receive further information should EPA’s Internet site under the ‘‘Federal interested persons who have not pre- contact Jim Downing on telephone Register’’ listings at http:// registered may be permitted by the number (202) 564–2468; fax (202) 564– www.epa.gov/fedrgstr. Chair of the HSRB to present oral 2070; email address Docket: All documents in the docket comments during the meeting. Each [email protected] or Lu-Ann are listed in the http:// individual or group wishing to make Kleibacker on telephone number (202) www.regulations.gov index. Although brief oral comments to the HSRB is 564–7189; fax: (202) 564–2070; email listed in the index, some information is strongly advised to submit their request address [email protected]; not publicly available, e.g., CBI or other (preferably via email) to Jim Downing or mailing address Environmental information whose disclosure is Lu-Ann Kleibacker under FOR FURTHER Protection Agency, Office of the Science restricted by statute. Certain other INFORMATION CONTACT no later than Advisor, Mail Code 8105R, 1200 material, such as copyrighted material, noon, Eastern Time, Wednesday, Pennsylvania Avenue NW., Washington, will be publicly available only in hard January 4, 2012, in order to be included DC 20460. General information copy. Publicly available docket on the meeting agenda and to provide concerning the EPA HSRB can be found materials are available either sufficient time for the HSRB Chair and on the EPA Web site at http:// electronically at http:// HSRB Designated Federal Official to www.epa.gov/osa/hsrb. www.regulations.gov or in hard copy at review the meeting agenda to provide an

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77827

appropriate public comment period. research. The HSRB reports to the EPA December 10, 2009 petition, submitted The request should identify the name of Administrator through the EPA Science by Tulane Environmental Law Clinic on the individual making the presentation Advisor. behalf of Concerned Citizens Around and the organization (if any) the 1. Topics for Discussion. The HSRB Murphy (Petitioners). The petition individual will represent. Oral will be reviewing its draft report from asked the Administrator to object to the comments before the HSRB are the October 19–20, 2011, HSRB meeting. October 15, 2009 operating permit that generally limited to five minutes per The Board may also discuss planning LDEQ issued to Murphy Oil, USA, Inc. individual or organization. Please note for future HSRB meetings. Background (Murphy Oil) for the Meraux Refinery. that this includes all individuals on the October 19–20, 2011 HSRB Pursuant to sections 307(b) and appearing either as part of, or on behalf meeting can be found at the HSRB Web 505(b)(2) of the Clean Air Act (CAA), a of, an organization. While it is our site: http://www.epa.gov/osa/hsrb. The petition for judicial review of those intent to hear a full range of oral October 19–20, 2011 meeting draft parts of the Order that deny issues in comments on the science and ethics report is now available. You may obtain the petition may be filed in the United issues under discussion, it is not our electronic copies of this document, and States Court of Appeals for the intent to permit organizations to expand certain other related documents that appropriate circuit within 60 days from the time limitations by having might be available electronically, from the date this notice appears in the numerous individuals sign up regulations.gov Web site and the HSRB Federal Register. separately to speak on their behalf. If Web site at http://www.epa.gov/osa/ ADDRESSES: You may review copies of additional time is available, further hsrb. For questions on document the final Order, the petition, and other public comments may be possible. availability or if you do not have supporting information at EPA Region 6, 2. Written comments. Please submit Internet access, consult the persons 1445 Ross Avenue Dallas, Texas 75202– written comments prior to the meeting. listed under FOR FURTHER INFORMATION 2733. For the HSRB to have the best CONTACT. EPA requests that if at all possible, opportunity to review and consider your 2. Meeting minutes and reports. you contact the individual listed in the comments as it deliberates on its report, Minutes of the meeting, summarizing FOR FURTHER INFORMATION CONTACT you should submit your comments at the matters discussed and section to view copies of the final Order, least five business days prior to the recommendations, if any, made by the petition, and other supporting beginning of this teleconference. If you advisory committee regarding such information. You may view the hard submit comments after this date, those matters, will be released within 90 copies Monday through Friday, from 9 comments will be provided to the Board calendar days of the meeting. Such a.m. to 3 p.m., excluding Federal members, but you should recognize that minutes will be available at http:// holidays. If you wish to examine these the Board members may not have www.epa.gov/osa/hsrb/ and http:// documents, you should make an adequate time to consider those www.regulations.gov. In addition, appointment at least 24 hours before comments prior to making a decision. information regarding the Board’s final visiting day. Additionally the final order Thus, if you plan to submit written meeting report will be found at http:// for the Murphy Oil, Meraux Refinery is comments, the Agency strongly www.epa.gov/osa/hsrb or from the available electronically at: http:// encourages you to submit such persons listed under FOR FURTHER www.epa.gov/region07/air/title5/ comments no later than noon, Eastern INFORMATION CONTACT. petitiondb/petitions/ Time, Wednesday, January 4, 2012. You murphy_response2011.pdf. should submit your comments using the Dated: December 7, 2011. FOR FURTHER INFORMATION CONTACT: instructions in section I, under Paul T. Anastas, Bonnie Braganza at (214) 665–7340, subsection C, ‘‘What Should I Consider EPA Science Advisor. email address braganza.bonnie as I Prepare My Comments for EPA?’’ In [FR Doc. 2011–32060 Filed 12–13–11; 8:45 am] @epa.gov, or the above EPA, Region 6 addition, the Agency also requests that BILLING CODE 6560–50–P address. persons submitting comments directly to the docket also provide a copy of SUPPLEMENTARY INFORMATION: The CAA their comments to Jim Downing or Lu- ENVIRONMENTAL PROTECTION affords EPA a 45-day period to review, Ann Kleibacker listed under FOR AGENCY and object to as appropriate, a Title V FURTHER INFORMATION CONTACT. There is operating permit proposed by State [FRL–9506–2] no limit on the length of written permitting authorities. Section 505(b)(2) comments for consideration by the Clean Air Act Operating Permit of the Act authorizes any person to HSRB. Program; Petition for Objection to petition the EPA Administrator, within 60 days after the expiration of this E. Background State Operating Permit for Murphy Oil USA, Inc., Meraux Refinery in St. review period, to object to a Title V The HSRB is a Federal advisory Bernard Parish, LA operating permit if EPA has not done so. committee operating in accordance with Petitions must be based only on the Federal Advisory Committee Act 5 AGENCY: Environmental Protection objections to the permit that were raised U.S.C. App.2 section 9. The HSRB Agency (EPA). with reasonable specificity during the provides advice, information, and ACTION: Notice of final action. public comment period provided by the recommendations to EPA on issues State, unless the petitioner demonstrates related to scientific and ethical aspects SUMMARY: This document announces that it was impracticable to raise these of human subjects research. The major that the EPA Administrator has issues during the comment period or the objectives of the HSRB are to provide responded to a citizen petition asking grounds for the issue arose after this advice and recommendations on: (1) EPA to object to an operating permit period. Research proposals and protocols; (2) (Permit Number 2500–00001–V5) issued EPA received a petition from the reports of completed research with by the Louisiana Department of Petitioners dated December 10, 2009, human subjects; and (3) how to Environmental Quality (LDEQ). requesting that EPA object to the strengthen EPA’s programs for Specifically, the Administrator has issuance of the Title V operating permit protection of human subjects of granted in part and denied in part the to Murphy Oil, for the operation of the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77828 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Meraux Refinery in St. Bernard Parish, ADDRESSES: Submit your comments, listed in the index, some information is Louisiana for the following reasons: (1) identified by Docket ID Number EPA– not publicly available, e.g., CBI or other Murphy Oil did not provide information HQ–OAR–2011–0893, by one of the information whose disclosure is sufficient to evaluate the source and its following methods: restricted by statute. Certain other application and to determine applicable • http://www.regulations.gov: Follow material, such as copyrighted material, requirements; (2) the netting analysis the on-line instructions for submitting will be publicly available only in hard fails to include emergency flaring comments. copy. Publicly available docket emissions; (3) the project triggers NSR • Email: [email protected]. materials are available either review for sulfur dioxide and volatile • Fax: (202) 566–9744. • electronically in http:// organic compounds; and (4) the netting Mail: ‘‘EPA–HQ–OAR–2011–0893, www.regulations.gov or in hard copy at analyses relies on limitations that are Environmental Protection Agency, the Air Docket, EPA Headquarters not practically enforceable. Mailcode: 2822T, 1301 Constitution Library, Mail Code: 2822T, EPA West On September 21, 2011, the Ave. NW., Washington, DC 20460.’’ Building, 1301 Constitution Ave. NW., • Hand Delivery: EPA Headquarters Administrator issued an order granting Washington, DC. The Public Reading Library, Room 3334, EPA West in part and denying in part the petition. Room is open from 8:30 a.m. to 4:30 Building, 1301 Constitution Ave. NW., The order explains the reasons behind p.m., Monday through Friday, excluding Washington, DC. Such deliveries are EPA’s decisions. holidays. The Public Reading Room is only accepted during the Docket’s open from 8:30 a.m. to 4:30 p.m., Dated: December 5, 2011. normal hours of operation, and special Monday through Friday, excluding Al Armendariz, arrangements should be made for holidays. The telephone number for the Regional Administrator, Region 6. deliveries of boxed information. [FR Doc. 2011–32061 Filed 12–13–11; 8:45 am] Instructions: Direct your comments to Public Reading Room is (202) 566–1742, and the facsimile number for the Air BILLING CODE 6560–50–P Docket ID Number EPA–HQ–OAR– 2011–0893. EPA’s policy is that all Docket is (202) 566–9744. comments will be included in the FOR FURTHER INFORMATION CONTACT: For ENVIRONMENTAL PROTECTION public docket without change and may information regarding this proposal AGENCY be made available online at http:// contact, Joseph R. Sopata, U.S. Environmental Protection Agency, [FRL–9506–4] www.regulations.gov, including any personal information provided, unless Office of Air and Radiation, Office of Regulation of Fuel and Fuel Additives: the comment includes information Transportation and Air Quality, (202) Modification to Octamix Waiver claimed to be Confidential Business 343–9034. Information (CBI) or other information SUPPLEMENTARY INFORMATION: AGENCY: Environmental Protection whose disclosure is restricted by statute. Agency (EPA). Do not submit information that you I. Background ACTION: Notice. consider to be CBI or otherwise Section 211(f)(1) of the Clean Air Act (‘‘CAA’’ or ‘‘the Act’’) makes it unlawful SUMMARY: On February 1, 1988, the protected through http:// for any manufacturer of any fuel or fuel Environmental Protection Agency (EPA) www.regulations.gov or email. The conditionally granted a waiver http://www.regulations.gov Web site is additive to first introduce into requested by the Texas Methanol an ‘‘anonymous access’’ system, which commerce, or to increase the Corporation (Texas Methanol) for a means EPA will not know your identity concentration in use of, any fuel or fuel gasoline-alcohol fuel, pursuant to or contact information unless you additive for use by any person in motor section 211(f) of the Clean Air Act.1 A provide it in the body of your comment. vehicles manufactured after model year minor correction was made on May 12, If you send an email comment directly 1974, which is not substantially similar 1988.2 A modification to the original to EPA without going through http:// to any fuel or fuel additive utilized in conditions was made on October 21, www.regulations.gov your email address the certification of any model year 1975, 1988.3 Spirit of 21st Century LLC will be automatically captured and or subsequent model year, vehicle or submitted a request to modify the included as part of the comment that is engine under section 206 of the Act. The waiver. The new request seeks approval placed in the public docket and made Environmental Protection Agency on an alternative corrosion inhibitor, available on the Internet. If you submit (‘‘EPA’’ or ‘‘the Agency’’) last issued an TXCeed, to be used within Texas an electronic comment, EPA interpretive rule on the phrase Methanol’s gasoline-alcohol fuel, also recommends that you include your ‘‘substantially similar’’ at 73 FR 22281 known as OCTAMIX. EPA considers name and other contact information in (April 25, 2008). Generally speaking, this to be a request for modification of the body of your comment and with any this interpretive rule describes the types the waiver under 211(f) of the Clean Air disk or CD–ROM you submit. If EPA of unleaded gasoline that are likely to be Act (Act). cannot read your comment due to considered ‘‘substantially similar’’ to DATES: Comments or a request for a technical difficulties and cannot contact the unleaded gasoline utilized in EPA’s public hearing must be received on or you for clarification, EPA may not be certification program by placing limits before January 13, 2012. EPA does not able to consider your comment. on a gasoline’s chemical composition as plan to hold a public hearing on this Electronic files should avoid the use of well as its physical properties, notice, unless one is requested. If special characters, any form of including the amount of alcohols and requested by December 29, 2011, a encryption, and be free of any defects or ethers (oxygenates) that may be added to public hearing will be held. If such a viruses. For additional instructions on gasoline. Fuels that are found to be hearing is held, comments must be submitting comments, go to Unit 1.B of ‘‘substantially similar’’ to EPA’s received within 90 days after the date of the SUPPLEMENTARY INFORMATION section certification fuels may be registered and such hearing. of this document: http://www.epa.gov/ introduced into commerce. The current epahome/dockets.htm. ‘‘substantially similar’’ interpretive rule 1 53 FR 3636, February 8, 1988. Docket: All documents in the docket for unleaded gasoline allows oxygen 2 53 FR 17977, May 19, 1988. are listed in the http:// content up to 2.7 weight for certain 3 53 FR 43768, October 28, 1988. www.regulations.gov index. Although ethers and alcohols.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77829

Section 211(f)(4) of the Act provides 23rd request with additional ENVIRONMENTAL PROTECTION that upon application of any fuel or fuel information on May 17, 2011 and AGENCY additive manufacturer, the August 15, 2011.910 TXCeed is a fuel Administrator may waive the [FRL–9506–7; Docket ID No. EPA–HQ–ORD– additive formulation consisting of a 2011–0895] prohibitions of section 211(f)(1) if the corrosion inhibitor. The physical Administrator determines that the properties of TXCeed are shown in Draft Research Report: Investigation of applicant has established that the fuel or Docket ID Number EPA–HQ–OAR– Ground Water Contamination Near fuel additive, or a specified 2011–0893. Pavillion, Wyoming concentration thereof, will not cause or contribute to a failure of any emission One of the major areas of concern to AGENCY: Environmental Protection control device or system (over the useful EPA in reviewing any waiver request is Agency (EPA). life of the motor vehicle, motor vehicle the problem of materials compatibility. ACTION: Notice of Public Comment engine, nonroad engine or nonroad Materials compatibility data could show Period. vehicle in which such device or system a potential failure of fuel systems, is used) to achieve compliance by the emissions related parts and emission SUMMARY: EPA is announcing a 45-day vehicle or engine with the emission control parts from use of the fuel or fuel public comment period for the external standards to which it has been certified additive. Any failure could result in review of the draft research report titled, pursuant to sections 206 and 213(a) of greater emissions that would cause or ‘‘Investigation of Ground Water the Act. The statute requires that the contribute to the engines or vehicles Contamination near Pavillion, Administrator shall take final action to exceeding their emissions standards. Wyoming.’’ The draft research report grant or deny an application after public Initially, Texas Methanol requested the was prepared by the National Risk notice and comment, within 270 days of use of TOLAD MFA–10 or an Management Research Laboratory receipt of the application. appropriate concentration of any other (NRMRL), within the EPA Office of The Texas Methanol Corporation corrosion inhibitor such that the fuel Research and Development (ORD), and received a waiver under CAA section will pass the National Association of EPA Region 8. EPA is releasing this 211(f)(4) for a gasoline-alcohol fuel Corrosion Engineer’s TM–01–72 (NACE draft research report solely for the 4 purpose of pre-dissemination peer blend, known as OCTAMIX, provided RUST TEST). However, EPA concluded that the resultant fuel is composed of a review. This draft research report has that compliance with the NACE Rust maximum of 3.7 percent by weight fuel not been formally disseminated by EPA. Test alone was not adequate in oxygen, a maximum of 5 percent by It does not represent and should not be volume methanol, a minimum of 2.5 determining suitability of a corrosion construed to represent any Agency percent by volume co-solvents 5 and inhibitor for use under the OCTAMIX policy or determination. Eastern 11 42.7 milligrams per liter (mg/l) of waiver. The Agency decided, Research Group, Inc. (ERG), an EPA Petrolite TOLAD MFA–10 corrosion therefore, to look at corrosion inhibitors contractor for external peer review, will inhibitor 6. In the OCTAMIX waiver, the on a case-by-case basis to establish convene an independent panel of Agency invited other corrosion inhibitor whether each formulation would be experts for peer review of this draft manufacturers to submit test data to acceptable as an alternative to the research report. Public comments establish, on a case-by-case basis, formulation of the original corrosion submitted during the public comment whether their fuel additive formulations inhibitor used in the OCTAMIX period will be made available to the are acceptable as alternatives to TOLAD waiver.12 peer review panel for consideration in MFA–10.7 Therefore, pursuant to section their review. In preparing a final report, EPA will consider the recommendations II. Today’s Announcement 211(f)(4), EPA will examine the data submitted by Spirit of 21st Century LLC, of the peer review panel. On March 23, 2011, Spirit of 21st DATES: The public comment period Century LLC requested EPA allow the along with all comments received from interested parties, to determine whether begins December 14, 2011, and ends use of its alternative corrosion inhibitor, January 27, 2011. Comments should be TXCeed, in the OCTAMIX gasoline- use of the corrosion inhibitor, TXCeed, in place of the original corrosion submitted to the docket or received in alcohol fuel blend which otherwise writing by EPA by January 27, 2011. would not be allowed under the inhibitor TOLAD MFA–10, would cause ADDRESSES: The draft ‘‘Investigation of waiver.8 Spirit of 21st Century LLC or contribute to vehicles or engines Ground Water Contamination near subsequently followed up its March failing to meet their emissions standards when using OCTAMIX. If use of TXCeed Pavillion, Wyoming’’ is available via the 4 OCTAMIX decision, 53 FR 3636 (February 8, does not cause or contribute to such Internet on the EPA Region 8 home page 1988). failures, EPA will modify the OCTAMIX under the Key Issues menu, Pavillion 5 The co-solvents are any one or a mixture of waiver to allow the use of TXCeed as an Groundwater Investigation at http:// ethanol, propanols, butanols, pentanols, hexanols, alternative corrosion inhibitor to www.epa.gov/region8/superfund/wy/ heptanols and octanols with the following pavillion/. constraints; the ethanol, propanols and butanols or TOLAD MFA–10. mixtures thereof must compose a minimum of 60 Comments may be submitted percent by weight of the co-solvent mixture; a Dated: December 7, 2011. electronically via http:// maximum limit of 40 percent by weight of the co- Gina McCarthy, www.regulations.gov, by email, by mail, solvents mixture is placed on the pentanols, by facsimile, or by hand delivery/ hexanols, heptanols and octanols; and the Assistant Administrator. heptanols and octanols are limited to 5 percent by [FR Doc. 2011–32056 Filed 12–13–11; 8:45 am] courier. Please follow the detailed weight of the co-solvent mixture. instructions provided in the BILLING CODE 6560–50–P 6 Additional conditions were the final fuel must SUPPLEMENTARY INFORMATION section of meet ASTM volatility specifications contained in this notice. ASTM D439–85a, as well as phase separation 9 conditions specified in ASTM D–2 Proposal P–176 EPA–HQ–OAR–2011–0893–02. Additional Information: For and Texas Methanol alcohol purity specifications. 10 EPA–HQ–OAR–2011–0893–03. information on the docket, http:// 7 53 FR at 3637. 11 53 FR at 3637. www.regulations.gov, or the public 8 EPA–HQ–OAR–2011–0893–01. 12 53 FR at 3637. comment period, please contact the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77830 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Office of Environmental Information copies of the comments. For made available on the Internet. If you (OEI) Docket (Mail Code: 2822T), U.S. attachments, provide an index, number submit electronic comments, EPA Environmental Protection Agency, 1200 pages consecutively with the comments, recommends that you include your Pennsylvania Ave. NW., Washington, and submit an unbound original and name and other contact information in DC 20460; telephone: (202) 566–1752; three copies. the body of your comments and with facsimile: (202) 566–1753; or email: • Hand Delivery: The OEI Docket is any disk or CD–ROM you submit. If EPA [email protected]. located in the EPA Headquarters Docket cannot read your comments due to For information on the draft research Center, EPA West Building, Room 3334, technical difficulties and cannot contact report, please contact Rebecca Foster, 1301 Constitution Ave. NW., you for clarification, EPA may not be U.S. Environmental Protection Agency, Washington, DC. The EPA Docket able to consider your comments. P.O. Box 1198, Ada, OK 74821; Center Public Reading Room is open Electronic files should avoid the use of telephone: (580) 436–8750; facsimile: from 8:30 a.m. to 4:30 p.m., Monday special characters and any form of (580) 436–8529; or email: through Friday, excluding legal encryption and be free of any defects or [email protected]. holidays. The telephone number for the viruses. For additional information Public Reading Room is (202) 566–1744. SUPPLEMENTARY INFORMATION: about EPA’s public docket, visit the EPA Deliveries are only accepted during the Docket Center homepage at http:// I. Information About Pavillion Ground docket’s normal hours of operation, and www.epa.gov/epahome/dockets.htm. Water Investigation special arrangements should be made Docket: All documents in the docket for deliveries of boxed information. If Pavillion, Wyoming is located in are listed in the http:// you provide comments by hand Fremont County, about 20 miles www.regulations.gov index. Although delivery, please submit one unbound northwest of Riverton. The concern at listed in the index, some information is original with pages numbered the site is potential ground water not publicly available, e.g., CBI or other consecutively, and three copies of the contamination, based on resident information whose disclosure is complaints about smells, tastes, and comments. For attachments, provide an index, number pages consecutively with restricted by statute. Other material, adverse changes in the quality of the such as copyrighted material, will be water in their domestic wells. In the comments, and submit an unbound original and three copies. publicly available only in hard copy. collaboration with ORD, Region 8 has Publicly available docket materials are been conducting a ground water Instructions: Direct your comments to Docket ID No. EPA–HQ–ORD–2011– available either electronically at http:// investigation. The purpose of this 0895. Please ensure that your comments www.regulations.gov or in hard copy at ground water investigation is to better are submitted within the specified the OEI Docket in the EPA Headquarters understand the basic ground water comment period. It is EPA’s policy to Docket Center. hydrology and how the constituents of include all comments it receives in the Dated: December 5, 2011. concern may be occurring in the aquifer. public docket without change and to More information is available at http:// Cynthia Sonich-Mullin, make the comments available online at www.epa.gov/region8/superfund/wy/ Director, National Risk Management Research http://www.regulations.gov, including pavillion/. Laboratory. any personal information provided, [FR Doc. 2011–32064 Filed 12–13–11; 8:45 am] II. How To Submit Comments to the unless comments include information BILLING CODE 6560–50–P Docket at http://www.regulations.gov claimed to be Confidential Business Submit your comments, identified by Information (CBI) or other information Docket ID No. EPA–HQ–ORD–2011– whose disclosure is restricted by statute. 0895, by one of the following methods: Do not submit information that you FEDERAL COMMUNICATIONS • http://www.regulations.gov: Follow consider to be CBI or otherwise COMMISSION the on-line instructions for submitting protected through http:// comments. www.regulations.gov or email. The Sunshine Act Meeting; Open • Email: [email protected]. http://www.regulations.gov Web site is Commission Meeting; Tuesday, • Facsimile: (202) 566–1753. an ‘‘anonymous access’’ system, which December 13, 2011 • Mail: Office of Environmental means that EPA will not know your Information (OEI) Docket (Mail Code: identity or contact information unless December 6, 2011. 2822T), U.S. Environmental Protection you provide it in the body of your The Federal Communications Agency, 1200 Pennsylvania Ave. NW., comments. If you send email comments Commission will hold an Open Meeting Washington, DC 20460. The telephone directly to EPA without going through on the subjects listed below on Tuesday, number is (202) 566–1752. If you http://www.regulations.gov, your email December 13, 2011. This meeting is provide comments by mail, please address will be automatically captured scheduled to commence at 10:45 a.m. in submit one unbound original with pages and included as part of the comments Room TW–C305, at 445 12th Street SW., numbered consecutively, and three that are placed in the public docket and Washington, DC.

Item Nos. Bureau Subject

1 Media ...... Title: Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act (MB Docket No. 11–93) Summary: The Commission will consider a Report and Order that protects consumers by implementing the Commercial Advertisement Loudness Mitigation (CALM) Act to prevent digital television commercial advertise- ments from being transmitted at louder volumes than the program material they accompany. 2 International ...... Title: Third Report and Analysis of Competitive Market Conditions with Respect to Domestic and International Satellite Communications Services (IB Docket No. 09–16) and Report and Analysis of Competitive Market Conditions with Respect to Domestic and International Satellite Communications Services (IB Docket No. 10– 99)

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77831

Item Nos. Bureau Subject

Summary: The Commission will consider the Third Report to the U.S. Congress on the status of competition in domestic and international satellite communications services as required by Section 703 of the Communica- tions Satellite Act of 1962, as amended. The Report covers calendar years 2008, 2009 and 2010.

The meeting site is fully accessible to FEDERAL ELECTION COMMISSION Treasury Department shows the balance people using wheelchairs or other in the fund as of October 31, 2011 was [NOTICE 2011–17] mobility aids. Sign language $198,123,942 and the Commission interpreters, open captioning, and 2012 Presidential Candidate Matching estimates that funds will be available for assistive listening devices will be Fund Submission Dates and Post Date matching payments in January 2012. provided on site. Other reasonable of Ineligibility Dates To Submit During 2012 and 2013, certifications accommodations for people with Statements of Net Outstanding will be made on a monthly basis. The disabilities are available upon request. Campaign Obligations last date a candidate may make a In your request, include a description of submission is March 1, 2013. AGENCY: Federal Election Commission. The submission dates specified in the the accommodation you will need and ACTION: Notice of matching fund following list pertain to non-threshold a way we can contact you if we need submission dates and submission dates matching fund submissions and more information. Last minute requests for statements of net outstanding resubmissions after the candidate will be accepted, but may be impossible campaign obligations for 2012 establishes eligibility. The threshold to fill. Send an email to: [email protected] presidential candidates. submission on which that eligibility or call the Consumer & Governmental will be determined may be filed at any Affairs Bureau at (202) 418–0530 SUMMARY: The Federal Election time and will be processed within (voice), (202) 418–0432 (tty). Commission is publishing matching fifteen business days, unless review of fund submission dates for publicly Additional information concerning the threshold submission determines funded 2012 presidential primary this meeting may be obtained from that eligibility has not been met. candidates. Eligible candidates may Audrey Spivack or David Fiske, Office present one submission and/or NOCO Submissions of Media Relations, (202) 418–0500; resubmission per month on the Under 11 CFR 9034.5, a candidate TTY 1–(888) 835–5322. Audio/Video designated date. The Commission is also who received Federal matching funds coverage of the meeting will be publishing the dates on which publicly must submit a NOCO statement to the broadcast live with open captioning funded 2012 presidential primary Commission within 15 calendar days over the Internet from the FCC Live Web candidates must submit their statements after the candidate’s date of ineligibility, page at http://www.fcc.gov/live. of net outstanding campaign obligations as determined under 11 CFR 9033.5. For a fee this meeting can be viewed (‘‘NOCO statement’’) after their dates of The candidate’s net outstanding live over George Mason University’s ineligibility (‘‘DOI’’). Candidates are campaign obligations is equal to the Capitol Connection. The Capitol required to submit a NOCO statement total of all outstanding obligations for Connection also will carry the meeting prior to each regularly scheduled date qualified campaign expenses plus live via the Internet. To purchase these on which they receive federal matching estimated necessary winding down funds, on dates set forth in the services call (703) 993–3100 or go to costs less cash on hand, the fair market SUPPLEMENTARY INFORMATION below. http://www.capitolconnection.gmu.edu. value of capital assets, and accounts FOR FURTHER INFORMATION CONTACT: Mr. receivable. 11 CFR 9034.5(a). Copies of materials adopted at this Marty Kuest, Audit Division, 999 E Candidates will be notified of their DOI meeting can be purchased from the Street NW., Washington, DC 20463, by the Commission. FCC’s duplicating contractor, Best Copy (202) 694–1200 or (800) 424–9530. A Candidate who has net outstanding and Printing, Inc. (202) 488–5300; Fax SUPPLEMENTARY INFORMATION: campaign obligations post-DOI may (202) 488–5563; TTY (202) 488–5562. continue to submit matching payment These copies are available in paper Matching Fund Submissions requests as long as the candidate format and alternative media, including Presidential candidates eligible to certifies that the remaining net large print/type; digital disk; and audio receive federal matching funds may outstanding campaign obligations equal and video tape. Best Copy and Printing, present submissions and/or or exceed the amount submitted for Inc. may be reached by email at resubmissions to the Federal Election matching. 11 CFR 9034.5(f)(1). If the [email protected]. Commission once a month on candidate so certifies, the Commission designated submission dates. The will process the request and certify the Federal Communications Commission. Commission will review the appropriate amount of matching funds. Bulah P. Wheeler, submissions/resubmissions and forward Candidates must also file revised Deputy Manager, Office of the Secretary, certifications for eligible candidates to NOCO statements in connection with Office of Managing Director. the Secretary of Treasury. Because no each matching fund request submitted [FR Doc. 2011–32193 Filed 12–12–11; 4:15 pm] payments can be made during 2011, after the candidate’s DOI. These BILLING CODE 6712–01–P submissions received during 2011 will statements are due just before the next be certified in late December 2011, for regularly scheduled payment date, on a payment in 2012. 11 CFR 9036.2(c). date to be determined by the Treasury Department regulations require Commission. They must reflect the that funds for the convention and financial status of the campaign as of general election grants be set aside the close of business three business days before any matching fund payments are before the due date of the statement and made. Information provided by the must also contain a brief explanation of

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77832 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

each change in the committee’s assets scheduled for peer review by an NTP prepared and made available on the and obligations from the most recent Technical Reports Peer-Review Panel at NTP Web site. Information about the NOCO statement. 11 CFR 9034.5(f)(2). a meeting on February 8–9, 2012. The NTP testing program is found at The Commission will review the meeting is open to the public with time http://ntp.niehs.nih.gov/go/test. revised NOCO statement and adjust the scheduled for oral public comment. The Attendance and Registration committee’s certification to reflect any NTP also invites written comments on change in the committee’s financial the draft reports (see ‘‘Request for The meeting is scheduled for position that occurs after submission of Comments’’ below). Information about February 8–9, 2012, from 8:30 a.m. EST the matching payment request and the this meeting, including draft reports and to adjournment at approximately 4:30 date of the revised NOCO statement. preliminary agenda, will be available on p.m. on February 8 and approximately The following schedule includes both the NTP Web site (http:// noon on February 9 and is open to the matching fund submission dates and ntp.niehs.nih.gov/go/36051). Summary public with attendance limited only by submission dates for revised NOCO minutes from the peer review will be the space available. Individuals who statements. posted on the NTP Web site following plan to attend are encouraged to register the meeting. online at the NTP Web site (http:// SCHEDULE OF MATCHING FUND SUB- DATES: The meeting will be held on ntp.niehs.nih.gov/go/36051) by MISSION DATES AND DATES TO SUB- February 8–9, 2012. The draft NTP TRs February 1, 2012, to facilitate access to the NIEHS campus. A photo ID is MIT REVISED STATEMENTS OF NET should be available for public comment by December 19, 2011. The deadline to required to access the NIEHS campus. OUTSTANDING CAMPAIGN OBLIGA- The NTP is making plans to webcast the TIONS (NOCO) FOR 2012 PRESI- submit written comments is January 25, 2012, and the deadline for pre- meeting at http://www.niehs.nih.gov/ DENTIAL CANDIDATES registration to attend the meeting and/ news/video/live. Registered attendees or provide oral comments at the meeting are encouraged to access the meeting Matching fund Revised NOCO page to stay abreast of the most current submission dates submission dates is February 1, 2012. information regarding the meeting. ADDRESSES: The meeting will be held at January 3, 2012 ...... December 23, 2011. the Rodbell Auditorium, Rall Building, Request for Comments February 1, 2012 ...... January 25, 2012. NIEHS, 111 T.W. Alexander Drive, The NTP invites written comments on March 1, 2012 ...... February 23, 2012. Research Triangle Park, NC 27709. April 2, 2012 ...... March 26, 2012. the draft reports, which should be May 1, 2012 ...... April 24, 2012. Public comments and any other received by January 25, 2012, to enable June 1, 2012 ...... May 24, 2012. correspondence on the draft TRs should review by the peer-review panel and July 2, 2012 ...... June 25, 2012. be sent to Danica Andrews, Designated NTP staff prior to the meeting. Persons August 1, 2012 ...... July 25, 2012. Federal Official, Office of Liaison, submitting written comments should September 4, 2012 ..... August 27, 2012. Policy and Review, Division of the NTP, include their name, affiliation, mailing October 1, 2012 ...... September 24, 2012. NIEHS, P.O. Box 12233, MD K2–03, November 1, 2012 ...... October 25, 2012. address, phone, email, and sponsoring Research Triangle Park, NC 27709, FAX: organization (if any) with the document. December 3, 2012 ...... November 26, 2012. (919) 541–0295, or January 2, 2013 ...... December 24, 2012. Written comments received in response February 1, 2013 ...... January 25, 2013. [email protected]. Courier to this notice will be posted on the NTP March 1, 2013 ...... February 22, 2013. address: 530 Davis Drive, Room 2136, Web site, and the submitter will be Morrisville, NC 27560. Persons needing identified by name, affiliation, and/or interpreting services in order to attend sponsoring organization. On behalf of the Commission. should contact (301) 402–8180 (voice) Dated: December 8, 2011. Public input at this meeting is also or (301) 435–1908 (TTY). Requests invited, and time is set aside for the Cynthia L. Bauerly, should be made at least five business presentation of oral comments on the Chair, Federal Election Commission. days in advance of the meeting. draft reports. In addition to in-person [FR Doc. 2011–31996 Filed 12–13–11; 8:45 am] FOR FURTHER INFORMATION CONTACT: oral comments at the meeting at the BILLING CODE 6715–01–P Danica Andrews, Designated Federal NIEHS, public comments can be Official, (919) 541–2595, presented by teleconference line. There [email protected]. will be 50 lines for this call; availability DEPARTMENT OF HEALTH AND SUPPLEMENTARY INFORMATION: will be on a first-come, first-served HUMAN SERVICES basis. The available lines will be open Preliminary Agenda Topics and from 8 a.m. until adjournment on Availability of Draft NTP Technical Availability of Meeting Materials February 8 and 9, although public Reports; Request for Comments; The agenda topic is the peer review of comments will be received only during Announcement of a Public Meeting To the findings and conclusions of draft the formal public comment period for Peer Review Draft NTP Technical NTP TRs of toxicology and each draft report. Each organization is Reports carcinogenesis studies in conventional allowed one time slot per draft report. AGENCY: National Toxicology Program or genetically modified rodent models. At least 7 minutes will be allotted to (NTP), National Institute of The preliminary agenda listing the draft each speaker, and if time permits, may Environmental Health Sciences reports and electronic files (PDF) of the be extended to 10 minutes at the (NIEHS), National Institutes of Health, draft reports should be available on the discretion of the chair. Persons wishing HHS. NTP Web site by December 19, 2011. to make an oral presentation are asked ACTION: Availability of Draft Reports; Any additional information, when to register via online registration at Request for Comments; and available, will be posted on the NTP http://ntp.niehs.nih.gov/go/36051, Announcement of a Public Meeting. Web site (http://ntp.niehs.nih.gov/go/ phone, or email (see ADDRESSES above) 36051) or may be requested in hardcopy by February 1, 2012, and if possible, to SUMMARY: The NTP announces the from the Designated Federal Official send a copy of the statement or talking availability of seven draft NTP (see ADDRESSES above). Following the points at that time to Ms. Andrews. Technical Reports (TRs) tentatively meeting, summary minutes will be Written statements can supplement and

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77833

may expand the oral presentation. Platelet Reactivity for Guiding events, as specified in the key questions Registration for oral comments will also Antiplatelet Treatment, which is detailed below. The entire research be available at the meeting, although currently being conducted by the protocol, including the key questions, is time allowed for presentation by on-site Evidence-based Practice Centers for the also available online at: http://effective registrants may be less than that for pre- AHRQ Effective Health Care Program. healthcare.AHRQ.gov/index.cfm/ registered speakers and will be Access to published and unpublished search-for-guides-reviews-and-reports/ determined by the number of persons pertinent scientific information on this ?pageaction=displayproduct&product who register on-site. device will improve the quality of this id=854#3962. comparative effectiveness review. This notice is a request for industry Background Information on NTP Panels AHRQ is requesting this scientific stakeholders to submit the following: NTP panels are technical, scientific information and conducting this • A current product label, if advisory bodies established on an ‘‘as comparative effectiveness review applicable (preferably an electronic PDF needed’’ basis to provide independent pursuant to Section 1013 of the file). scientific peer review and to advise the Medicare Prescription Drug, • Information identifying published NTP on agents of public health concern, Improvement, and Modernization Act of randomized controlled trials and new/revised toxicological test methods, 2003, Public Law 108–173. observational studies relevant to the or other issues. These panels help DATES: Submission Deadline on or clinical outcomes. Please provide both a ensure transparent, unbiased, and before January 13, 2012. list of citations and reprints if possible. • scientifically rigorous input to the ADDRESSES: Online submissions: http:// Information identifying program for its use in making credible effectivehealthcare.AHRQ.gov/index. unpublished randomized controlled decisions about human hazard, setting cfm/submit-scientific-information- trials and observational studies relevant research and testing priorities, and packets/. Please select the study for to the clinical outcomes. If possible, providing information to regulatory which you are submitting information please provide a summary that includes agencies about alternative methods for from the list of current studies and the following elements: study number, toxicity screening. The NTP welcomes complete the form to upload your study period, design, methodology, nominations of scientific experts for documents. indication and diagnosis, proper use upcoming panels. Scientists interested Email submissions: [email protected] instructions, inclusion and exclusion in serving on an NTP panel should (please do not send zipped files—they criteria, primary and secondary provide a current curriculum vita to Ms. are automatically deleted for security outcomes, baseline characteristics, Andrews (see ADDRESSES). The authority reasons). number of patients screened/eligible/ for NTP panels is provided by 42 U.S.C. Print submissions: Robin Paynter, enrolled/lost to withdrawn/follow-up/ 217a; section 222 of the Public Health Oregon Health and Science University, analyzed, and effectiveness/efficacy and Service (PHS) Act, as amended. The Oregon Evidence-based Practice Center, safety results. • panel is governed by the Federal 3181 SW Sam Jackson Park Road, Mail Registered ClinicalTrials.gov Advisory Committee Act, as amended (5 Code: BICC, Portland, OR 97239–3098. studies. Please provide a list including U.S.C. Appendix 2), which sets forth FOR FURTHER INFORMATION CONTACT: the ClinicalTrials.gov identifier, standards for the formation and use of Robin Paynter, Research Librarian, condition, and intervention. advisory committees. Telephone: (503) 494–0147 or Email: Your contribution is very beneficial to ehcsrcohsu.edu. this program. AHRQ is not requesting Dated: December 7, 2011. and will not consider marketing John R. Bucher, SUPPLEMENTARY INFORMATION: In material, health economics information, Associate Director, National Toxicology accordance with Section 1013 of the or information on other indications. Program. Medicare Prescription Drug, This is a voluntary request for [FR Doc. 2011–32106 Filed 12–13–11; 8:45 am] Improvement, and Modernization Act of information, and all costs for complying BILLING CODE 4140–01–P 2003, Public Law 108–173, the Agency with this request must be borne by the for Healthcare Research and Quality has submitter. commissioned the Effective Health Care In addition to your scientific DEPARTMENT OF HEALTH AND (EHC) Program Evidence-based Practice information please submit an index HUMAN SERVICES Centers to complete a comparative document outlining the relevant effectiveness review of the evidence for information in each file along with a Agency for Healthcare Research and testing of CYP2C19 variants and platelet statement regarding whether or not the Quality reactivity for guiding antiplatelet submission comprises all of the treatment. complete information available. Scientific Information Request on The EHC Program is dedicated to Please Note: The contents of all CYP2C19 Variants and Platelet identifying as many studies as possible Reactivity Tests submissions, regardless of format, will be that are relevant to the questions for available to the public upon request unless AGENCY: Agency for Healthcare Research each of its reviews. In order to do so, we prohibited by law.The draft of this review and Quality (AHRQ), HHS. are supplementing the usual manual will be posted on AHRQ’s EHC program Web site and available for public comment for a ACTION: Request for Scientific and electronic database searches of the period of 4 weeks. If you would like to be Information Submissions. literature by systematically requesting information (e.g., details of studies notified when the draft is posted, please sign up for the email list at: http://effectivehealth SUMMARY: The Agency for Healthcare conducted) from medical device care.AHRQ.gov/index.cfm/join-the-email- Research and Quality (AHRQ) is seeking industry stakeholders through public list1/. scientific information submissions from information requests, including via the manufacturers of CYP2C19 variants and Federal Register and direct postal and/ The Key Questions platelet reactivity tests. Scientific or online solicitations. We are looking information is being solicited to inform for studies that report on CYP2C19 Key Question 1 our Comparative Effectiveness Review variants and platelet reactivity tests, In patient populations who are of Testing of CYP2C19 Variants and including those that describe adverse candidates for clopidogrel therapy, does

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77834 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

genetic testing for CYP2C19 variants iii. Phenotypic testing for platelet information and conducting this predict intermediate and clinical reactivity. comparative effectiveness review outcomes following treatment iv. No testing. pursuant to Section 1013 of the initiation? b. How do modifying factors (e.g., race Medicare Prescription Drug, a. What is the analytic validity or ethnicity, age, sex, comorbidities, Improvement, and Modernization Act of (technical test performance) of the diet, or the time between conducting the 2003, Public Law 108–173. various assays used for CYP2C19 test and obtaining results) affect the DATES: Submission Deadline on or genetic testing? association of alternative phenotypic or before January 13, 2012. b. What is the clinical validity genetic test-and-treat strategies and ADDRESSES: (predictive accuracy) of genetic testing patient outcomes? Alternative test- Online submissions: http://effective for predicting intermediate and clinical guided treatments can include non- healthcare.AHRQ.gov/index.cfm/ outcomes in patients who are receiving clopidogrel antiplatelet agents or high- submit-scientific-information-packets/. clopidogrel therapy? dose clopidogrel regimens. Please select the study for which you c. Do the following factors modify the Key Question 4 are submitting information from the list association between genetic test results of current studies and complete the and clinical outcomes? What are the potential adverse effects form to upload your documents. i. Co-medications. or harms from genetic or phenotypic Email submissions: [email protected] ii. Patient-level factors (e.g., race or testing per se or from test-directed (please do not send zipped files—they ethnicity, age, sex, disease severity, or treatments? are automatically deleted for security comorbidities). Dated: December 2, 2011. reasons). iii. Test-related factors (e.g., between- Carolyn M. Clancy, Print submissions: Robin Paynter, assay differences). Oregon Health and Science University, iv. System-level factors (e.g., settings AHRQ, Director. Oregon Evidence-based Practice Center, where testing is performed). [FR Doc. 2011–32047 Filed 12–13–11; 8:45 am] 3181 SW Sam Jackson Park Road, Mail BILLING CODE 4160–90–M Key Question 2 Code: BICC, Portland, OR 97239–3098. In patient populations receiving FOR FURTHER INFORMATION CONTACT: clopidogrel therapy, does phenotypic DEPARTMENT OF HEALTH AND Robin Paynter, Research Librarian, testing of platelet reactivity predict HUMAN SERVICES Telephone: (503) 494–0147 or Email: intermediate and clinical outcomes? [email protected]. a. What is the analytic validity Agency for Healthcare Research and SUPPLEMENTARY INFORMATION: In (technical test performance) of the Quality accordance with Section 1013 of the various assays used in phenotypic Scientific Information Request on Medicare Prescription Drug, testing of platelet reactivity? Improvement, and Modernization Act of b. What is the clinical validity Intravascular Diagnostic and Imaging Medical Devices 2003, Public Law 108–173, the Agency (predictive accuracy) of phenotypic for Healthcare Research and Quality has testing for predicting intermediate and AGENCY: Agency for Healthcare Research commissioned the Effective Health Care clinical outcomes in patients who are and Quality (AHRQ), HHS. (EHC) Program Evidence-based Practice receiving clopidogrel therapy? ACTION: Centers to complete a comparative c. Do the following factors modify the Request for Scientific Information Submissions. effectiveness review of the evidence for association between phenotypic test intravascular diagnostic procedures and results and clinical outcomes? SUMMARY: The Agency for Healthcare imaging techniques versus angiography i. Co-medications. Research and Quality (AHRQ) is seeking ii. Patient-level factors (e.g., race or alone. scientific information submissions from The EHC Program is dedicated to ethnicity, age, sex, disease severity, or manufacturers of intravascular identifying as many studies as possible comorbidities). diagnostic and imaging medical devices, iii. Test-related factors (e.g., between- that are relevant to the questions for including: Fractional Flow Reserve assay differences). each of its reviews. In order to do so, we iv. System-level factors (e.g., settings (FFR), Coronary Flow Reserve (CFR), are supplementing the usual manual where testing is performed). Intravascular Ultrasound (IVUS), and electronic database searches of the Intravascular Ultrasound (VH–IVUS) literature by systematically requesting Key Question 3 with Virtual Histology, Optical Coherent information (e.g., details of studies What is the comparative effectiveness Tomography (OCT), Near-Infrared conducted) from medical device of alternative test-and-treat strategies Spectroscopy (NIR), Angioscopy, industry stakeholders through public (including a no-testing strategy) for Intravascular Magnetic Resonance information requests, including via the therapeutic decision making regarding Imaging (MRI), Elastrography, and Federal Register and direct postal and/ antiplatelet therapy among patients who Thermography. Scientific information is or online solicitations. We are looking are candidates for clopidogrel-based being solicited to inform our for studies that report on intravascular treatment? Comparative Effectiveness Review of diagnostic and imaging medical devices, a. What is the comparative Intravascular Diagnostic Procedures and including those that describe adverse effectiveness of the following testing Imaging Techniques versus events, as specified in the key questions strategies on therapeutic decision Angiography Alone, which is currently detailed below. The entire research making, platelet reactivity during being conducted by the Evidence-based protocol, including the key questions, is followup, and clinical outcomes in Practice Centers for the AHRQ Effective also available online at: http:// patients who are candidates for Health Care Program. Access to www.effectivehealthcare.AHRQ.gov/ antiplatelet treatment? published and unpublished pertinent index.cfm/search-for-guides-reviews- i. Genetic testing for CYP2C19. scientific information on this device and-reports/?pageaction=display ii. Genetic testing for CYP2C19 will improve the quality of this product&productid=766#3456. followed by phenotypic testing for comparative effectiveness review. This notice is a request for industry platelet reactivity. AHRQ is requesting this scientific stakeholders to submit the following:

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77835

• A current product label, if using an Intravascular Diagnostic Device information collection requests under applicable (preferably an electronic PDF (IVDx) technique to guide the PCI review by the Office of Management and file). procedure (either immediately prior to Budget (OMB) in compliance with the • Information identifying published or during the procedure)—when Paperwork Reduction Act (44 U.S.C. randomized controlled trials and compared to angiography-guided PCI— chapter 35). To request a copy of these observational studies relevant to the on the diagnostic thinking and requests, call the CDC Reports Clearance clinical outcomes. Please provide both a therapeutic decision making, short-term Officer at (404) 639–5960 or send an list of citations and reprints if possible. outcomes, and long-term outcomes? email to [email protected]. Send written • Information identifying • Key Question 3: For patients having comments to CDC Desk Officer, Office of unpublished randomized controlled just undergone a PCI, what is the impact Management and Budget, Washington, trials and observational studies relevant of using an IVDx technique to evaluate DC 20503 or by fax to (202) 395–5806. to the clinical outcomes. If possible, the success of PCI immediately after the Written comments should be received please provide a summary that includes procedure—when compared to within 30 days of this notice. the following elements: Study number, angiography alone—on the diagnostic Proposed Project study period, design, methodology, thinking and therapeutic decision indication and diagnosis, proper use making, short-term outcomes, and long- Generic Clearance for the Collection instructions, inclusion and exclusion term outcomes? of Qualitative Feedback on Agency criteria, primary and secondary • Key Question 4: How do different Service Delivery—new—Centers for outcomes, baseline characteristics, IVDx techniques compare to each other Disease Control and Prevention (CDC), number of patients screened/eligible/ in their effects on the diagnostic National Center on Birth Defects and enrolled/lost to withdrawn/follow-up/ thinking and therapeutic decision Developmental Disabilities (NCBDDD). analyzed, and effectiveness/efficacy and making, short-term outcomes, and long- As part of a Federal Government-wide safety results. term outcomes? effort to streamline the process to seek • Registered ClinicalTrials.gov • During diagnostic coronary feedback from the public on service studies. Please provide a list including angiography for the evaluation of the delivery, the CDC has submitted a the ClinicalTrials.gov identifier, presence/extent of CAD and the Generic Information Collection Request condition, and intervention. potential necessity of coronary (Generic ICR): ‘‘Generic Clearance for Your contribution is very beneficial to intervention? the Collection of Qualitative Feedback this program. AHRQ is not requesting • During PCI to guide the procedure? on Agency Service Delivery ’’ to OMB and will not consider marketing • Immediately after PCI to evaluate for approval under the Paperwork material, health economics information, the success of PCI? Reduction Act (PRA) (44 U.S.C. 3501 et. or information on other indications. • Key Question 5: What factors (e.g., seq.). This is a voluntary request for patient/physician characteristics, To request additional information, information, and all costs for complying availability of prior noninvasive testing, please contact Daniel L. Holcomb, with this request must be borne by the type of PCI performed) influence the Reports Clearance Officer, Centers for submitter. In addition to your scientific effect of IVDx techniques—when Disease Control and Prevention, 1600 information please submit an index compared to angiography (or among Clifton Road, MS–D74, Atlanta, GA document outlining the relevant different IVDx techniques)—on the 30333 or send an email to [email protected]. information in each file along with a diagnostic thinking and therapeutic SUPPLEMENTARY INFORMATION: statement regarding whether or not the decision making, short-term outcomes, Title: Generic Clearance for the submission comprises all of the and long-term outcomes? Collection of Qualitative Feedback on complete information available. • During diagnostic coronary Agency Service Delivery. Please Note: The contents of all angiography for the evaluation of the Abstract: The information collection submissions, regardless of format, will be presence/extent of CAD and the activity will garner qualitative customer available to the public upon request unless potential need for coronary and stakeholder feedback in an efficient, prohibited by law. The draft of this review intervention? will be posted on AHRQ’s EHC program Web timely manner, in accordance with the • During PCI to guide the procedure? Administration’s commitment to site and available for public comment for a • Immediately after PCI to evaluate period of 4 weeks. If you would like to be improving service delivery. By notified when the draft is posted, please sign the success of PCI? qualitative feedback we mean up for the email list at: http:// Dated: November 23, 2011. information that provides useful effectivehealthcare.AHRQ.gov/index.cfm/ Carolyn M. Clancy, insights on perceptions and opinions, join-the-email-list1/. AHRQ, Director. but are not statistical surveys that yield quantitative results that can be [FR Doc. 2011–32048 Filed 12–13–11; 8:45 am] Key Questions generalized to the population of study. BILLING CODE 4160–90–M • Key Question 1: For patients This feedback will provide insights into undergoing diagnostic coronary customer or stakeholder perceptions, angiography to evaluate the presence/ DEPARTMENT OF HEALTH AND experiences and expectations, provide extent of Coronary Artery Disease (CAD) HUMAN SERVICES an early warning of issues with service, in order to decide on the necessity for or focus attention on areas where coronary intervention, what is the Centers for Disease Control and communication, training or changes in impact of using an IVDx technique— Prevention operations might improve delivery of when compared to angiography alone— products or services. These collections [30Day-12–12BW] on the diagnostic thinking and will allow for ongoing, collaborative and therapeutic decision making, short-term Agency Forms Undergoing Paperwork actionable communications between the outcomes, and long-term outcomes? Reduction Act Review Agency and its customers and • Key Question 2: For patients stakeholders. It will also allow feedback undergoing Percutaneous Coronary The Centers for Disease Control and to contribute directly to the Intervention (PCI), what is the impact of Prevention (CDC) publishes a list of improvement of program management.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77836 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Feedback collected under this generic sampling frame, the sample design The Agency received no comments in clearance will provide useful (including stratification and clustering), response to the 60-day notice published information, but it will not yield data the precision requirements or power in the Federal Register of December 22, that can be generalized to the overall calculations that justify the proposed 2010 (75 FR 80542). population. This type of generic sample size, the expected response rate, This is a new collection of clearance for qualitative information methods for assessing potential non- information. Respondents will be will not be used for quantitative response bias, the protocols for data screened and selected from Individuals information collections that are collection, and any testing procedures and Households, Businesses designed to yield reliably actionable that were or will be undertaken prior to Organizations, and/or State, Local or results, such as monitoring trends over fielding the study. Depending on the Tribal Government. Below we provide time or documenting program degree of influence the results are likely CDC’s projected average estimates for performance. Such data uses require to have, such collections may still be the next three years. There is no cost to more rigorous designs that address: the eligible for submission for other generic respondents other than their time. The target population to which mechanisms that are designed to yield estimated annualized burden hours for generalizations will be made, the quantitative results. this data collection activity are 18,667.

Average number of Annual Average Average hours Type of collection respondents frequency per number of per response per activity response activities

Online surveys, Surveys, Focus Groups ...... 7,000 1 4 40/60

Dated: December 7, 2011. DEPARTMENT OF HEALTH AND awarded to State agencies contingent on Daniel Holcomb, HUMAN SERVICES fiscal requirements in subtitle B of the Reports Clearance Officer, Centers for Disease Developmental Disabilities Assistance Control and Prevention. Administration for Children and and Bill of Rights Act. The SF–425, Families [FR Doc. 2011–32027 Filed 12–13–11; 8:45 am] ordinarily mandated in the revised OMB BILLING CODE 4163–18–P Proposed Information Collection Circular A–102, provides no accounting Activity; Comment Request breakouts necessary for proper stewardship. Consequently, the Title: Financial Status Reporting Form proposed streamlined from will for State Councils on Developmental substitute for the SF–425 and will allow Disabilities Program. compliance monitoring and proactive OMB No. 0980–0212. compliance maintenance and technical Description assistance. For the program of the State Councils Respondents on Developmental Disabilities, funds are

ANNUAL BURDEN ESTIMATES

Number of Number of responses Average Total burden Instrument respondents per burden hours hours respondent per response

Financial Status Reporting Form for State Councils on Developmental Dis- abilities Program ...... 55 3 5.10 841.5

Estimated Total Annual Burden address: [email protected]. All other forms of information technology. Hours: 841.5. requests should be identified by the title Consideration will be given to In compliance with the requirements of the information collection. comments and suggestions submitted of Section 3506(c)(2)(A) of the The Department specifically requests within 60 days of this publication. Paperwork Reduction Act of 1995, the comments on: (a) Whether the proposed Administration for Children and collection of information is necessary Robert Sargis, Families is soliciting public comment for the proper performance of the Reports Clearance Officer. on the specific aspects of the functions of the agency, including [FR Doc. 2011–32051 Filed 12–13–11; 8:45 am] information collection described above. whether the information shall have BILLING CODE 4184–01–P Copies of the proposed collection of practical utility; (b) the accuracy of the information can be obtained and agency’s estimate of the burden of the comments may be forwarded by writing proposed collection of information; (c) to the Administration for Children and the quality, utility, and clarity of the Families, Office of Administration, information to be collected; and (d) Office Planning, Research and ways to minimize the burden of the Evaluation, 370 L’Enfant Promenade collection of information on SW., Washington, DC 20447, Attn: ACF respondents, including through the use Reports Clearance Officer. Email of automated collection techniques or

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00071 Fmt 4703 Sfmt 9990 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77837

DEPARTMENT OF HEALTH AND Office of Management and Budget product by brand, and by quantity in HUMAN SERVICES (OMB) for each collection of each brand and subbrand.’’ On January information they conduct or sponsor. 31, 2011, FDA announced the Food and Drug Administration ‘‘Collection of information’’ is defined availability of a final guidance [Docket No. FDA–2011–N–0867] in 44 U.S.C. 3502(3) and 5 CFR representing the Agency’s current 1320.3(c) and includes Agency requests thinking on the meaning of the term Agency Information Collection or requirements that members of the ‘‘harmful and potentially harmful Activities; Proposed Collection; public submit reports, keep records, or constituent’’ (see 76 FR 5387). On Comment Request; Experimental provide information to a third party. August 12, 2011, FDA published a Study on the Public Display of Lists of Section 3506(c)(2)(A) of the PRA (44 notice in the Federal Register Harmful and Potentially Harmful U.S.C. 3506(c)(2)(A)) requires Federal requesting comment issues related to Tobacco Constituents Agencies to provide a 60-day notice in the establishment of the HPHC list (see the Federal Register concerning each 76 FR 50226). AGENCY: Food and Drug Administration, proposed collection of information FDA intends to conduct research with HHS. before submitting the collection to OMB consumers to help inform decisions ACTION: Notice. for approval. To comply with this about how to implement section requirement, FDA is publishing notice 904(d)(1) of the FD&C Act and to SUMMARY: The Food and Drug of the proposed collection of Administration (FDA) is announcing an provide information about how information set forth in this document. consumers understand information opportunity for public comment on the With respect to the following about HPHCs. The research goals are to proposed collection of certain collection of information, FDA invites evaluate the impact of different list information by the Agency. Under the comments on these topics: (1) Whether formats on the public’s ability to Paperwork Reduction Act of 1995 (the the proposed collection of information understand HPHC information, and to PRA), Federal Agencies are required to is necessary for the proper performance assess the potential for certain publish a notice in the Federal Register of FDA’s functions, including whether unintended consequences resulting concerning each proposed collection of the information will have practical from exposure to the lists. The impact information and to allow 60 days for utility; (2) the accuracy of FDA’s of different list formats will be public comment in response to the estimate of the burden of the proposed measured by evaluating respondents’ notice. This notice solicits comments on collection of information, including the the Experimental Study on the Public validity of the methodology and understanding of the following Display of the List of Harmful and assumptions used; (3) ways to enhance concepts: (1) There are more than 4,000 Potentially Harmful Tobacco the quality, utility, and clarity of the chemicals in tobacco products and Constituents. This study is being information to be collected; and (4) tobacco smoke; (2) the chemicals come conducted in support of the provision of ways to minimize the burden of the from the tobacco leaf itself, how it is the Family Smoking Prevention and collection of information on processed, and different parts of a Tobacco Control Act (the Tobacco respondents, including through the use tobacco product such as the tobacco Control Act) that requires FDA to of automated collection techniques, smoke, glues, inks, paper, or additives; publish in a format that is when appropriate, and other forms of (3) for smokeless products, many of the understandable and not misleading to a information technology. chemicals come from the tobacco leaf lay person and to place on public itself; for smoked products, many of the Experimental Study on the Public display the list of harmful and chemicals come from burning the Display of the List of Harmful and potentially harmful constituents tobacco leaf; (4) Federal law requires Potentially Harmful Tobacco (HPHCs) in tobacco products and tobacco companies to test their tobacco Constituents (OMB Control Number— tobacco smoke. products and smoke for the chemicals 0910–New) on this list; (5) each tobacco product DATES: Submit either electronic or brand and subbrand has its own written comments on the collection of The Tobacco Control Act (Pub. L. separate list of chemicals; (6) science information by February 13, 2012. 111–31) amends the Federal Food, Drug, and Cosmetic Act (FD&C Act) to grant has linked the chemicals on these lists ADDRESSES: Submit electronic FDA authority to regulate the to health problems or potential health comments on the collection of manufacture, marketing, and problems; (7) these lists do not include information to http:// distribution of tobacco products to necessarily all of the health problems www.regulations.gov. Submit written protect the public health and to reduce that may be caused by the tobacco comments on the collection of tobacco use by minors. Section 904(d)(1) product; (8) these lists do not information to the Division of Dockets of the FD&C Act states, ‘‘Not later than necessarily include all of the chemicals Management (HFA–305), Food and Drug 3 years after the date of enactment of the in the tobacco product that may be Administration, 5630 Fishers Lane, Rm. Family Smoking Prevention and harmful; (9) the amount of a chemical 1061, Rockville, MD 20852. All Tobacco Control Act, and annually listed for a specific tobacco product comments should be identified with the thereafter, the Secretary shall publish in does not necessarily indicate the docket number found in brackets in the a format that is understandable and not likelihood of experiencing a health heading of this document. misleading to a lay person, and place on problem; (10) the number of chemicals FOR FURTHER INFORMATION CONTACT: public display (in a manner determined listed for a specific tobacco product Daniel Gittleson, Office of Information by the Secretary) the list [of harmful or does not necessarily indicate the Management, Food and Drug potentially harmful constituents] likelihood of experiencing a health Administration, 1350 Piccard Dr., PI50– established under [section 904(e)]’’ of problem; (11) the number of possible 400B, Rockville, MD 20850, (301) 796– the FD&C Act. Section 904(e) of the health outcomes listed for a tobacco 5156, [email protected]. FD&C Act directs FDA to establish ‘‘a product does not necessarily indicate SUPPLEMENTARY INFORMATION: Under the list of harmful and potentially harmful the likelihood of experiencing a health PRA (44 U.S.C. 3501–3520), Federal constituents, including smoke problem; (13) the number of chemicals Agencies must obtain approval from the constituents, to health in each tobacco listed for a specific health problem does

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77838 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

not necessarily indicate the likelihood FDA proposes to conduct an understood and not misleading to a lay of experiencing a health problem; (13) experimental study with current person, and is expected to provide when a chemical is listed without a smokers aged 15 years and older, former information that may inform Agency quantity it may mean that a smokers aged 15 years and older, and communications about HPHCs. The data manufacturer has not yet tested its nonsmokers aged between 13 and 25 obtained from this study is one factor products for that chemical; and/or that years who may be susceptible to that will be used to inform FDA’s a test was conducted but it was not initiation of smoking. Data will be decisionmaking regarding the public sensitive enough to measure the amount collected from members of an Internet display of the list of HPHCs required of chemical in the product; and/or that panel. The study will include an under section 904(d)(1) of the FD&C oversampling of subjects with limited a way to test for that chemical is still Act. By evaluating respondents’ health literacy. Participation in the being developed. Unintended understanding of the concepts listed experimental study is voluntary. The consequences will be assessed by previously in this document we do not information collected from the study is measuring respondents’ susceptibility to necessary to inform the Agency’s efforts intend to imply that consumer initiation of tobacco use, motivation and to implement the requirement of the understanding of all concepts is needed confidence to quit tobacco use, risk FD&C Act to place on public display a to comply with these requirements. perceptions about tobacco use, and list of HPHCs in tobacco products and FDA estimates the burden of this emotional reactivity. tobacco smoke in a format that is collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of Average Number of responses Total annual burden per Total hours Activity respondents per responses respondent response

Pretest ...... 60 1 60 0.5 30 Screener ...... 10,000 1 10,000 0.0167 167 Experimental Survey ...... 3,000 1 3,000 0.5 1,500

Total ...... 13,060 ...... 1,697 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

FDA’s burden estimate is based on DEPARTMENT OF HEALTH AND [email protected]. All prior experience with Internet panel HUMAN SERVICES comments should be identified with the experiments similar to the study OMB control number 0910–0374. Also proposed here. Sixty panel members Food and Drug Administration include the FDA docket number found will take part in a pretest of the study, [Docket No. FDA–2011–N–0535] in brackets in the heading of this estimated to last 30 minutes (0.5 hours), document. for a total of 30 hours. Approximately Agency Information Collection FOR FURTHER INFORMATION CONTACT: 10,000 respondents will complete a Activities; Submission for Office of Denver Presley, Jr., Office of Information screener to determine eligibility for Management and Budget Review; Management, Food and Drug participation in the study, estimated to Comment Request; Guidance for Administration, 1350 Piccard Dr., PI50– take 1 minute (0.0167 hours), for a total Industry: Notification of a Health Claim 400B, Rockville, MD 20850, (301) 796– of 167 hours. Three thousand or Nutrient Content Claim Based on an 3793. respondents will complete the full Authoritative Statement of a Scientific Body SUPPLEMENTARY INFORMATION: In study, estimated to last 30 minutes (0.5 compliance with 44 U.S.C. 3507, FDA hours), for a total of 1,500 hours. The AGENCY: Food and Drug Administration, has submitted the following proposed total estimated burden is 1,697 hours. HHS. collection of information to OMB for Dated: December 8, 2011. ACTION: Notice. review and clearance. Leslie Kux, SUMMARY: The Food and Drug Guidance for Industry: Notification of a Acting Assistant Commissioner for Policy. Administration (FDA) is announcing Health Claim or Nutrient Content Claim [FR Doc. 2011–32026 Filed 12–13–11; 8:45 am] that a proposed collection of Based on an Authoritative Statement of BILLING CODE 4160–01–P information has been submitted to the a Scientific Body—(OMB Control Office of Management and Budget Number 0910–0374)—Extension (OMB) for review and clearance under Section 403(r)(2)(G) and (r)(3)(C) of the Paperwork Reduction Act of 1995. the Federal Food, Drug, and Cosmetic DATES: Fax written comments on the Act (the FD&C Act) (21 U.S.C. collection of information by January 13, 343(r)(2)(G) and (r)(3)(C)), as amended 2012. by the FDA Modernization Act of 1997, ADDRESSES: To ensure that comments on provides that any person may market a the information collection are received, food product whose label bears a OMB recommends that written nutrient content claim or a health claim comments be faxed to the Office of that is based on an authoritative Information and Regulatory Affairs, statement of a scientific body of the U.S. OMB, Attn: FDA Desk Officer, FAX: Government or the National Academy of (202) 395–7285, or emailed to Sciences (NAS). Under this section of

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77839

the FD&C Act, a person that intends to submission of a notification and the an authoritative statement. FDA intends use such a claim must submit a Agency’s views on the information that to review the notifications the Agency notification of its intention to use the should be included in the notification. receives to ensure that they comply with claim 120 days before it begins The Agency believes that the guidance the criteria established by the FD&C Act. marketing the product bearing the will enable persons to meet the criteria In the Federal Register of August 3, claim. In the Federal Register of June 11, for notifications that are established in 2011 (76 FR 46819), FDA published a 1998 (63 FR 32102), FDA announced the section 403(r)(2)(G) and (r)(3)(C) of the availability of a guidance entitled FD&C Act. In addition to the 60-day notice requesting public ‘‘Guidance for Industry: Notification of information specifically required by the comment on the proposed collection of a Health Claim or Nutrient Content FD&C Act to be in such notifications, information. No comments were Claim Based on an Authoritative the guidance states that the notifications received. Statement of a Scientific Body.’’ The should also contain information on FDA estimates the burden of this guidance provides the Agency’s analytical methodology for the nutrient collection of information as follows: interpretation of terms central to the that is the subject of a claim based on

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN 1

Number of Number of responses Total annual Average Section of the FD&C Act respondents per responses burden per Total hours respondent response

403(r)(2)(G) (nutrient content claims) ...... 1 1 1 250 250 403(r)(2)(C) (health claims) ...... 1 1 1 450 450 Guidance for notifications ...... 2 1 2 1 2

Total ...... 702 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

These estimates are based on FDA’s is required by the FD&C Act to be DEPARTMENT OF HEALTH AND experience with health claims, nutrient submitted with a notification will be HUMAN SERVICES content claims, and other similar readily available to a respondent. notification procedures that fall under However, the respondent will have to Health Resources and Services our jurisdiction. To avoid estimating the collect and assemble that information. Administration number of respondents as zero, the Based on communications with firms Agency Information Collection Agency estimates that there will be one that have submitted notifications, FDA or fewer respondents annually for Activities: Submission for OMB estimates that 1 respondent will take Review; Comment Request nutrient content claim and health claim 250 hours to collect and assemble the notifications. FDA estimates that it will information required by the statute for Periodically, the Health Resources receive one nutrient content claim a nutrient content claim notification. and Services Administration (HRSA) notification and one health claim Further, FDA estimates that 1 publishes abstracts of information notification per year over the next 3 collection requests under review by the years. respondent will take 450 hours to collect and assemble the information Office of Management and Budget Section 403(r)(2)(G) and (r)(3)(C) of (OMB), in compliance with the required by the statute for a health claim the FD&C Act requires that the Paperwork Reduction Act of 1995 (44 notification. notification include the exact words of U.S.C. chapter 35). To request a copy of the claim, a copy of the authoritative Under the guidance, notifications the clearance requests submitted to statement, a concise description of the should also contain information on OMB for review, email basis upon which such person relied for analytical methodology for the nutrient [email protected] or call the HRSA determining that this is an authoritative that is the subject of a claim based on Reports Clearance Office on (301) 443– statement as outlined in the FD&C Act, an authoritative statement. The 1129. and a balanced representation of the guidance applies to both nutrient The following request has been scientific literature relating to the content claim and health claim submitted to the Office of Management relationship between a nutrient and a notifications. FDA has determined that and Budget for review under the disease or health-related condition to this information should be readily Paperwork Reduction Act of 1995: which a health claim refers or to the Proposed Project: Cultural and available to a respondent and, thus, the nutrient level to which the nutrient Linguistic Competency and Health Agency estimates that it will take a content claim refers. This balanced Literacy Data Collection Checklist (OMB representation of the scientific literature respondent 1 hour to incorporate the No. 0915–xxxx)—[New]. is expected to include a bibliography of information into each notification. The The Health Resources and Services the scientific literature on the topic of Agency expects there will be 2 Administration’s (HRSA) vision is the claim and a brief, balanced account respondents for a total of 2 hours. ‘‘Healthy Communities, Healthy or analysis of how this literature either Dated: December 9, 2011. People.’’ In addition, the HRSA mission supports or fails to support the Leslie Kux, statement is ‘‘To improve health and achieve health equity through access to authoritative statement. Acting Assistant Commissioner for Policy. Since the claims are based on quality services, a skilled health authoritative statements of a scientific [FR Doc. 2011–32025 Filed 12–13–11; 8:45 am] workforce and innovative programs.’’ body of the U.S. Government or NAS, BILLING CODE 4160–01–P This framework supports a health care FDA believes that the information that system that assures access to

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77840 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

comprehensive, culturally competent, announcements, as either a stand-alone The goal of this checklist is to quality care. or integrated measure. increase the number of HRSA-funded Performance measures have been Using a scale of 0–3, the grantee may programs that have integrated cultural useful in helping HRSA to assess the use the Cultural and Linguistic and linguistic competence and health progress of each grantee. The measure Competency and Health Literacy Data literacy into their policies, guidelines, used will be informed by the degree to Collection Checklist to assess if contracts and training. In addition, which HRSA-funded programs have specified cultural/linguistic competence variations of the proposed tool have incorporated cultural and linguistic and health literacy elements have been proven useful for grantees’ self- competence and health literacy incorporated into their policies, assessment. This proposed tool can also elements into their policies, guidelines, guidelines, contracts and training. Each offer insights into technical assistance contracts and training. HRSA bureaus HRSA program may add data sources and offices will be encouraged to and year of data used for scoring to challenges and opportunities. incorporate this performance measure provide a rationale for determining a The annual estimate of burden is as (or a modified version of this measure) score, and/or applicability of elements follows: into their funding opportunity to a specific program.

Responses Instrument Number of per Total Hours per Total burden respondents respondent responses response hours

Data Collection Checklist ...... 900 1 900 1 900

Total ...... 900 1 900 1 900

Written comments and administrative efficiencies and of grants policy, administration, and recommendations concerning the improved alignment of current liaison independent review of competitive proposed information collection should functions and grant policy processes grant applications. Specifically: (1) be sent within 30 days of this notice to within the Office of Federal Assistance Serves as the Administrator’s principal the desk officer for HRSA, either by Management. source for grants policy and financial email to integrity of HRSA programs; (2) [email protected] or by Chapter RJ—Office of Federal Assistance Management exercises oversight over the Agency’s fax to (202) 395–6974. Please direct all business processes related to assistance correspondence to the ‘‘attention of the Section RJ–10, Organization programs; (3) facilitates, plans, directs desk officer for HRSA.’’ Delete in its entirety and replace with and coordinates the administration of Dated: December 8, 2011. the following: HRSA grant policies and operations; (4) Reva Harris, The Office of Federal Assistance plans, directs and carries out the grants Acting Director, Division of Policy and Management (RJ) is headed by the officer functions for all of HRSA’s grant Information Coordination. Associate Administrator, who reports programs as well as awarding official [FR Doc. 2011–32014 Filed 12–13–11; 8:45 am] directly to the Administrator, Health functions for various scholarship, loan BILLING CODE 4165–15–P Resources Services Administration. The and loan repayment assistance Office of Federal Assistance programs; and (5) directs and carries out Management includes the following the independent review of grant DEPARTMENT OF HEALTH AND components: applications for all of HRSA’s programs. HUMAN SERVICES (1) Office of the Associate Administrator (RJ); Division of Financial Integrity (RJ1) Health Resources and Services (2) Division of Financial Integrity Administration (1) Coordinates agency-wide efforts (RJ1); addressing HHS’s Program Integrity Statement of Organization, Functions (3) Division of Grants Policy (RJ2); Initiative; (2) serves as the Agency’s and Delegations of Authority (4) Division of Grants Management focal point for coordinating financial Operations (RJ3); and audits of grantees; (3) coordinates the This notice amends Part R of the (5) Division of Independent Review external financial assessment of HRSA Statement of Organization, Functions (RJ4). and Delegations of Authority of the grantees and the resolution of any audit Department of Health and Human Section RJ–20, Functions findings; (4) conducts the pre-award and Services (HHS), Health Resources and (1) Delete the functional statement for post-award review of grant applicants’ Services Administration (HRSA) (60 FR the Office of Federal Assistance and grantees’ accounting systems; (5) 56605, as amended November 6, 1995; Management (RJ) and replace in its conducts ad hoc studies and reviews as last amended at 76 FR 64953–64954 entirety. related to the financial integrity of the dated October 19, 2011). HRSA business processes related to This notice reflects organizational Office of Associate Administrator (RJ) assistance programs; (6) serves as the changes to the Health Resources and Provides national leadership in the Agency’s liaison with the Office of Services Administration. Specifically, administration and assurance of the Inspector General (OIG) for issues this notice updates the functional financial integrity of HRSA’s programs related to grants; (7) coordinates the statement for the Office of Federal and provides oversight over all HRSA Agency’s response to HHS OIG Hotline Assistance Management (RJ). The activities to ensure that HRSA’s complaints reporting fraudulent fiscal update to the functional statement will resources are being properly used and activities pertaining to HRSA grant better align functional responsibility protected. Provides leadership, funds; and (8) establishes an assessment with improved management and direction and coordination to all phases model for grantee oversight.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77841

Division of Grants Policy (RJ2) administrative aspects of grants projects; amended (5 U.S.C. App.), notice is (1) Advises on Federal assistance (8) provides data and analyses as hereby given of the following meeting. award policy and assists in the necessary for budget planning, hearings, The meeting will be closed to the identification and resolution of policy operational planning and management public in accordance with the issues and problems; (2) analyzes, decisions; (9) participates in the provisions set forth in sections develops and implements the Agency’s development of program guidance and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal assistance award policy; (3) instructions for grant competitions; (10) as amended. The grant applications and coordinates the review of departmental oversees contracts in support of receipt the discussions could disclose grants and cooperative agreements of applications, records management, confidential trade secrets or commercial policies and ensures that Agency and grant close-out operations; and (11) property such as patentable material, policies and procedures are revised to supports post-award monitoring and and personal information concerning reflect appropriate changes; (4) provides closeout by analyzing PMS data and individuals associated with the grant assistance and technical consultation to working with grants and program office applications, the disclosure of which OFAM and program offices in the staff. would constitute a clearly unwarranted invasion of personal privacy. interpretation of laws, regulations, and Division of Independent Review (RJ4) policies relative to the Agency’s grant Name of Committee: National Institute on and cooperative agreement programs; (5) (1) Plans, directs and carries out Alcohol Abuse and Alcoholism Initial reviews the Agency’s funding HRSA’s independent review of Review Group, Clinical, Treatment and opportunity announcements for applications for grants and cooperative Health Services Research Review agreement funding, and assures that the Subcommittee. compliance with statutory and Date: March 13, 2012. legislative authorities, regulations, process is fair, open, and competitive; (2) develops, implements, and Time: 8 a.m. to 6 p.m. departmental and Agency policy, and Agenda: To review and evaluate grant government-wide administrative maintains policies and procedures applications. requirements, and publishes the necessary to carry out the Agency’s Place: Hyatt Regency Bethesda, One announcements to Grants.gov; (6) serves independent review/peer review Bethesda Metro Center, 7400 Wisconsin as the Agency’s Catalogue of Federal processes; (3) provides technical Avenue, Bethesda, MD 20814. Domestic Assistance (CFDA) assistance to independent reviewers Contact Person: Katrina L Foster, Ph.D., coordinator and as the Agency’s ensuring that reviewers are aware of and Scientific Review Officer, National Institute comply with appropriate administrative on Alcohol Abuse & Alcoholism, National Grants.Gov liaison; (7) coordinates the Institutes of Health, 5635 Fishers Lane, Rm. development of standardized policies and regulations; (4) provides technical advice and guidance to the 2019, Rockville, MD 20852, (301) 443–4032, documents and processes for the [email protected]. Agency related to Federal assistance Agency regarding the independent review processes; (5) coordinates and (Catalogue of Federal Domestic Assistance award policies; and (8) reviews Agency Program Nos. 93.271, Alcohol Research programs for proper interpretation and assures the development of program Career Development Awards for Scientists timely implementation and application policies and rules relating to HRSA’s and Clinicians; 93.272, Alcohol National of grants and cooperative agreements extramural grant activities; and (6) Research Service Awards for Research management policies. provides HRSA’s Offices and Bureaus Training; 93.273, Alcohol Research Programs; with the final disposition of all 93.891, Alcohol Research Center Grants; Division of Grants Management reviewed applications. 93.701, ARRA Related Biomedical Research Operations (RJ3) and Research Support Awards, National Section RJ–30, Delegations of Authority Institutes of Health, HHS) (1) Exercises the sole responsibility within HRSA for all aspects of grant and All delegations of authority and re- Dated: December 7, 2011. cooperative agreement receipt and delegations of authority made to HRSA Jennifer S. Spaeth, award and post-award processes, and officials that were in effect immediately Director, Office of Federal Advisory provides oversight of the management prior to this reorganization, and that are Committee Policy. and maintenance of, and enhancements, consistent with this reorganization, [FR Doc. 2011–32112 Filed 12–13–11; 8:45 am] to the electronic grant management shall continue in effect pending further BILLING CODE 4140–01–P system that enables staff to perform re-delegation. their day-to-day work; (2) participates in This reorganization is effective upon the planning, development, and date of signature. DEPARTMENT OF HEALTH AND HUMAN SERVICES implementation of policies and Dated: December 2, 2011. procedures for grants and cooperative Mary K. Wakefield, agreements; (3) provides assistance and National Institutes of Health technical consultation to program Administrator. Center for Scientific Review; Notice of offices and grantees in the application of [FR Doc. 2011–32015 Filed 12–13–11; 8:45 am] Closed Meetings laws, regulations, policies and BILLING CODE 4165–15–P guidelines relative to the Agency’s grant Pursuant to section 10(d) of the and cooperative agreement programs; (4) Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND develops standard operating procedures, amended (5 U.S.C. App.), notice is HUMAN SERVICES methods and materials for the hereby given of the following meetings. administration of the Agency’s grants National Institutes of Health The meetings will be closed to the programs; (5) establishes standards and public in accordance with the guides for grants management National Institute on Alcohol Abuse provisions set forth in sections operations; (6) reviews grantee financial and Alcoholism; Notice of Closed 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., status reports and prepares reports and Meeting as amended. The grant applications and analyses on the grantee’s use of funds; the discussions could disclose (7) provides technical assistance to Pursuant to section 10(d) of the confidential trade secrets or commercial applicants and grantees on financial and Federal Advisory Committee Act, as property such as patentable material,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77842 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

and personal information concerning (Catalogue of Federal Domestic Assistance Hearing or speech-impaired individuals individuals associated with the grant Program Nos. 93.306, Comparative Medicine; may access this number via TTY by applications, the disclosure of which 93.333, Clinical Research, 93.306, 93.333, calling the toll-free Federal Information 93.337, 93.393–93.396, 93.837–93.844, would constitute a clearly unwarranted 93.846–93.878, 93.892, 93.893, National Relay Service at (800) 877–8339. invasion of personal privacy. Institutes of Health, HHS) SUPPLEMENTARY INFORMATION: This Name of Committee: Center for Scientific Dated: December 7, 2011. program provides grants to Indian tribes Review Special Emphasis Panel, Stem cell Jennifer S. Spaeth, and Alaska Native Villages to develop applications for Neurodegeneration. viable Indian and Alaska Native Date: January 5, 2012. Director, Office of Federal Advisory Committee Policy. communities, including the creation of Time: 3 p.m. to 4 p.m. decent housing, suitable living Agenda: To review and evaluate grant [FR Doc. 2011–32109 Filed 12–13–11; 8:45 am] environments, and economic applications. BILLING CODE 4140–01–P Place: National Institutes of Health, 6701 opportunities primarily for persons with Rockledge Drive, Bethesda, MD 20892, low and moderate incomes as defined in (Telephone Conference Call). DEPARTMENT OF HOUSING AND 24 CFR 1003.4. Contact Person: Suzan Nadi, Ph.D., URBAN DEVELOPMENT The FY 2011 awards announced in Scientific Review Officer, Center for this Notice were selected for funding in Scientific Review, National Institutes of [Docket No. FR–5500–FA–04] a competition posted on Health, 6701 Rockledge Drive, Room 5217B, www.grants.gov on April 20, 2011. Announcement of Funding Awards; MSC 7846, Bethesda, MD 20892, (301) 435– Applications were scored and selected 1259, [email protected]. Indian Community Development Block for funding based on the selection Grant Program; Fiscal Year 2011 Name of Committee: Center for Scientific criteria in that notice and Area ONAP Review Special Emphasis Panel, Member Conflict: Cardiometabolic and Bone Health. AGENCY: Office of Native American geographic jurisdictional competitions. Date: January 6, 2012. Programs, Office of Public and Indian The amount available in FY 2011 to Time: 2 p.m. to 3:30 p.m. Housing, HUD. fund the ICDBG single purpose grants Agenda: To review and evaluate grant ACTION: Announcement of funding was $60,944,168. In addition, applications. awards. $3,276,832 was retained to fund Place: National Institutes of Health, 6701 Imminent Threat grants in FY 2011. The SUMMARY: Rockledge Drive, Bethesda, MD 20892, In accordance with Section allocations for the Area ONAP (Telephone Conference Call). 102(a)(4)(C) of the Department of geographic jurisdictions are as follows: Contact Person: Suzanne Ryan, Ph.D., Housing and Urban Development Scientific Review Officer, Center for Reform Act of 1989, this announcement Eastern/Woodlands: $ 6,915,116 Scientific Review, National Institutes of notifies the public of funding decisions Southern Plains: $12,997,421 Health, 6701 Rockledge Drive, Room 3139, made by the Department in a Northern Plains: $ 8,691,578 Southwest: $22,691,804 MSC 7770, Bethesda, MD 20892, (301) 435– competition for funding under the 1712, [email protected]. Northwest: $ 3,108,249 Fiscal Year 2011 (FY 2011) Notice of Alaska: $ 6,540,000 Name of Committee: Center for Scientific Funding Availability (NOFA) for the Review Special Emphasis Panel, Member Total $60,944,168 Conflict: Mechanisms of Emotion, Stress and Indian Community Development Block Grant (ICDBG) program. This In accordance with Section 102 Health. (a)(4)(C) of the Department of Housing Date: January 9, 2012. announcement contains the Time: 1 p.m. to 3:30 p.m. consolidated names and addresses of and Urban Development Reform Act of Agenda: To review and evaluate grant this year’s award recipients under the 1989 (103 Stat.1987, 42 U.S.C. 3545), applications. ICDBG program. the Department is publishing the names, Place: National Institutes of Health, 6701 FOR FURTHER INFORMATION CONTACT: For addresses, and amounts of the 84 Rockledge Drive, Bethesda, MD 20892, questions concerning the ICDBG awards made under the various regional (Telephone Conference Call). Program awards, contact the Area Office competitions in Appendix A to this Contact Person: Biao Tian, Ph.D., Scientific document. Review Officer, Center for Scientific Review, of Native American Programs (ONAP) National Institutes of Health, 6701 Rockledge serving your area or Deborah M. Dated: December 7, 2011. Drive, Room 3089B, MSC 7848, Bethesda, Lalancette, Office of Native Programs, Sandra B. Henriquez, MD 20892, (301) 402–4411, 1670 Broadway, 23rd Floor, Denver, CO Assistant Secretary for Public and Indian [email protected]. 80202, telephone (303) 675–1600. Housing.

Name/address of applicant Amount funded Activity funded Project description

Ak-Chin Indian Community, Honorable Louis Manuel Jr., $605,000 Public Facility Community Cultural & Language Building. Chairperson, 42507 West Peters & Nall Road, Maricopa, Center. AZ 85239–3940, (520) 568–1013. All Mission Indian Housing Authority (LaJolla), Dave Shaffer, 605,000 Housing Construction ...... Construct 3 homes. Executive Director, 27740 Jefferson Avenue, Temecula, CA 92590, (951) 760–7390. All Mission Indian Housing Authority (Santa Rosa) Dave 605,000 Housing Construction ...... Construct 3 homes. Shaffer, Executive Director, 27740 Jefferson Avenue, Temecula, CA 92590, (951) 760–7390. All Mission Indian Housing Authority (Torres-Martinez), 605,000 Housing Construction ...... Construct 4 homes. Dave Shaffer, Executive Director, 27740 Jefferson Ave, Temecula, CA 92590, (951) 760–7390. Bay Mills Indian Community, Jeffrey D. Parker, President, 600,000 Public Facility Community Child Development Center. 3095 S. Towering Pines, Brimley, MI 49715, (906) 248– Center. 3241.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77843

Name/address of applicant Amount funded Activity funded Project description

Big Pine Paiute Tribe of the Owens Valley, Honorable Virgil 605,000 Housing Rehabilitation ...... Rehabilitation of 15 homes. Moose, Chairperson, P.O. Box 700, Big Pine, CA 93513, (760) 938–2003. Big Valley Tribe of Pomo Indians, Honorable Valentino 605,000 Housing Construction ...... Construct 6 rental units. Jack, Chairperson, 2726 Mission Rancheria Road, Lakeport, CA 95453, (707) 263–3924. Bishop Paiute Tribe, Honorable William Vega, Chairperson, 605,000 Public Facility Community Cultural Center Renovation. 50 Tu Su Lane, Bishop, CA 93514–8058, (760) 873–3584. Center. Catawba Indian Nation, Honorable William Harris, Chief, 600,000 Public Facility Community Project-Turtle Haven. 996 Avenue of the Nations, Rock Hill, SC 29730, (803) Center. 366–0629. Chemehuevi Indian Tribe, Honorable Charles Wood, Chair- 605,000 Public Facility Infrastructure ... Underground Electrical Wiring person, PO Box 1976, Havasu Lake, CA 92363, (760) to Sewer Lift Stations. 858–4219. Chickasaw Nation, Honorable Bill Anoatubby, Governor, 800,000 Public Facility Community Hospitality House. P.O. 1548, Ada, OK 74821, (580) 436–2603. Center. Chippewa Cree Tribe of Montana, Jonathan Eagleman, 900,000 Public Facility/Infrastructure ... Upgrade water system to Tribal Water Resources Director, 96 Clinic Road, Box allow for, future housing Elder, MT 59521, (406) 395–4225. and business, expansion. Choctaw Nation of Oklahoma, Honorable Gregory E. Pyle, 800,000 Public Facilities Infrastructure Infrastructure—Water Tower Chief, P.O. Drawer 1210, Durant, OK 74702, (580) 924– and Water Distribution Sys- 8280. tem. Citizen Potawatomi Nation, Honorable John A. Barrett, 800,000 Microenterprise ...... Microenterprise Project. Chairman, 1601 S. Gordon Cooper Drive, Shawnee, OK 74801, (405) 275–3121. Comanche Nation Housing Authority, Norman Leveille, Ex- 800,000 Housing Rehabilitation ...... Housing Rehabilitation. ecutive Director, P.O. Box 1671, Lawton, OK 73502, (580) 357–4956. Coos, Lower Umpqua, Siuslaw Tribe, Stephanie Matthews, 500,000 Housing Rehabilitation ...... Rehabilitation of 38 low-in- Tribal Administrator, 1245 Fulton Avenue, Coos Bay, OR come housing units. 97420, (541) 888–9577. Coquille Indian Housing Authority, Honorable Edward 500,000 Housing Rehabilitation ...... Roof replacement on 71 Metcalf, Tribal Chairman 2678 Mexeye Loop, Coos Bay, housing units. OR 97420, (541) 756–0904. Crow Creek Housing Authority, Joseph Sazue, Jr. Executive 900,000 Housing Rehabilitation ...... Rehabilitation of 31 single Director, P.O. Box 19, Fort Thompson, SD 57339, (605) family dwellings. 245–2250. Crow Tribe of Indians, Honorable Cedric Black Eagle, Tribal 750,000 Public Facility Infrastructure ... Upgrade water system to Chairman, P.O. Box 159, Crow Agency, MT 59022, (406) allow for, improved water 638–3715. disinfection and, distribu- tion. Delaware Tribe of Oklahoma, Honorable Paula Pechonick 800,000 Public Facilities Infrastructure Infrastructure/AOA Elder Nu- Chief, 170 N.E. Barbara Avenue, Bartlesville, OK 74006, trition Kitchen. (918) 336–5272. Dry Creek Rancheria Band of Pomo Indians, Honorable 605,000 Homebuyer Assistance ...... Assist 10 homebuyers with Harvey Hopkins, Chairperson, P.O. Box 607, Geyserville, down Payment Assistance. CA 95448–0607, (707) 522–4290. Eastern Shawnee Tribe of Oklahoma, Honorable Glenna J. 800,000 Public Facility Community Elder Independent Living Wallace, Chief, P.O. Box 350, Seneca, MO 64865, (918) Center. Community Center. 666–2435. Elko Band of Te-Moak Tribe, Honorable Gerald Temoke, 605,000 Public Facility Community Construct Head Start Build- Chairperson, 1745 Silver Eagle Drive, Elko, NV 89801, Center. ing. (775) 738–8889. Fond du Lac Band of the Minnesota Chippewa, Honorable 545,000 Public Facility Community Waterline Expansion: Phase Karen Diver, Chairperson, 1720 Big Lake Road, Cloquet, Center. one. MN 55720, (218) 879–4593. Fort McDermitt Paiute-Shoshone Tribe, Honorable Billy Bell, 605,000 Economic Development Construct Travel Plaza. Chairperson, P.O. Box 457, McDermitt, NV 89421, (775) Project. 532–8913. Gila River Health Corporation, Heather Chavez, Executive 2,750,000 Public Facility & Infrastructure Rehabilitation of Medical Fa- Director, P.O. Box 38,, Sacaton, AZ 85147–0038, (602) cility. 528–1456. Greenville Rancheria of Maidu Indians, Honorable Kyle Self, 590,000 Land Acquisition ...... Acquisition of existing Multi- Chairperson, P.O. Box 279, Greenville, CA 95947, (530) family units for 8 Families. 284–7990. Ho-Chunk Nation, Honorable Jon Greendeer, President, 600,000 Public Facility Community Law Enforcement Center. W9814 Airport Road, Black River Falls, WI 54615, (715) Center. 284–9343. Holy Cross Village, Honorable Eugene Paul, Chief, P.O. 600,000 Public Facility, Community Community Center. Box 89, Holy Cross, AK 99602, (907) 476–7124. Center. Houlton Band of Maliseet, Honorable Brenda Commander, 600,000 Public Facility Community Multi Purpose Athletic field. Chief, P.O. Box 88, Houlton, ME 04730, (207) 532–4273. Center.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77844 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Name/address of applicant Amount funded Activity funded Project description

Hualapai Indian Tribe, Honorable Wilfred Whatoname, Sr., 825,000 Public Facility & Improve- Youth Camp Infrastructure. Chairperson, P.O. Box 179, Peach Springs, AZ 86434, ments. (928) 769–2216. Iowa Tribe of Kansas and Nebraska, Honorable Timothy 737,500 Public Facility Community Construction of Community Rhodd, Chairman, 3345 B. Thrasher Road, White Cloud, Center. Center. KS 66094, (785) 595–3258. Jicarilla Apache Housing Authority, Lisa Manwell, Executive 500,000 Housing Rehabilitation ...... Rehabilitation of 25 homes. Director, PO Box 486, Dulce, NM 87528, (575) 759–3415. Kickapoo Traditional Tribe of Texas, Honorable Juan Garza, 800,000 Public Facility Community Construction of a Community Jr., Chairman, HC 1, Box 9700, Eagle Pass, TX 78852– Center. Center Elder/Wellness/ 2430, (830) 773–1209. Community. Klamath Tribe, Honorable Gary Frost, Tribal Chairman P.O. 500,000 Public Facility Community Childcare Center. Box 436, Chiloquin, OR 97624, (541) 783–2210. Center. Knik Tribe, Gerald Pilot, Housing Director, P.O. Box 600,000 Housing Rehabilitation ...... Acquire and rehabilitate two 871565, Wasilla, AK 99687–1565, (907) 556–8165. duplexes. Lac Courte Oreilles Band, Honorable Gordon Thayer, Chair- 600,000 Public Facility Community Solid Waste Management Fa- man, 13394 W. Trepania Road, Hayward, WI 54843, Center. cility. (715) 634–8934. Lac du Flambeau Band of Lake Superior, Dee Mayo, Tribal 600,000 Public Facility Community Boys dormitory rehabilitation. Vice-Chairperson, PO Box 67, Lac du Flambeau, WI Center. 54538, (715) 588–3303. Lower Brule Sioux Tribe, Stuart Langdeau, Grants Develop- 900,000 Housing Rehabilitation ...... Rehabilitation of 18 single ment Coordinator, 187 Oyate Circle, Lower Brule, SD family dwellings. 57548, (605) 473–5561. Lummi Indian Housing Authority, Honorable Jacqueline 495,795 Public Facility Community Gymnasium in low-income Ballew, Chairman, 2828 Kwina Road, Bellingham, WA Center. housing area. 98226, (360) 312–8407. Mentasta Traditional Council, Nora David, First Chief, P.O. 560,000 Public Facility Community Multi-purpose Community Box 6019, Mentasta Lake, AK 99780, (907) 291–2319. Center. Center. Mescalero Apache Housing Authority, Alvin Benally, Execu- 655,783 Housing Rehabilitation ...... Rehabilitation of 15 homes. tive Director, P.O. Box 227, Mescalero, NM 88340–0227, (575) 464–9235. Metlakatla Indian Community, Ron Ryan, Executive Direc- 600,000 Housing Rehabilitation ...... Rehabilitate Senior Rental tor, P.O. Box 59, Metlakatla, AK 99926, (907) 886–6500. Complex. Miami Tribe of Oklahoma, Honorable Tom Gamble, Chief, 800,000 Public Facility Community Northeastern Tribal Health P.O. Box 1326, Miami, OK 74355–1326, (918) 542–1445. Center. System Education Center. Muscogee (Creek) Nation, Honorable A.D. Ellis, Principal 800,000 Public Facility Community Student Center Library. Chief, P.O. Box 580, Okmulgee, OK 74447, (918) 756– Center. 8700. Native Village of Kluti-Kaah, Teri Nutter, Executive Director, 600,000 Housing-New Construction .... Construct three homes. P.O. Box 68, Copper Center, AK 99573, (907) 822–3633. Native Village of Kwinhagak, Felipe Hernandez III, Tribal 600,000 Land Acquisition ...... Acquire sites for new housing. Administrator, P.O. Box 149, Quinhagak, AK, (907) 556– 8165. Native Village of Nanawalek, Wally Kvasnikoff, First Chief, 600,000 Public Facility Community Youth Activities Clinic. P.O. Box 8028, Nanawalek, AK 99634, (907) 281–2274. Center. Native Village of Napakiak, Gerald Pflugh, Grant Writer, 600,000 Public Facility Community Construct Health Clinic. P.O. Box 34069, Napakiak, AK 99634, (907) 495–1800. Center. Noorvik Native Community, Honorable Joshua Melton, 600,000 Housing Rehabilitation ...... Housing Rehabilitation. President, P.O. Box 209, Noorvik, AK, (907) 636–2144. Navajo Nation, Honorable Ben Shelly, President, PO Box 4,506,720 Public Facility Infrastructure .. Power Lines & Water Treat- 7440, Window Rock, AZ 86515, (928) 871–6352. ment Facility. North Fork Rancheria of Mono Indians, Honorable Judy 605,000 Public Facility Community Construct TANF Building. Fink, Chairperson, P.O. Box 929, North Fork, CA 93643– Center. 0929, (559) 877–2461. Northern Arapaho Housing Authority, Patrick Goggles, Ex- 1,100,000 Public Facility Special Needs Remodel and expansion of ecutive Director, 501 Ethete Road, Ethete, WY 82520, the Arapahoe Health Clinic. (307) 332–5318. Northern Cheyenne Tribal Housing Authority, Lafe Haugen, 900,000 Housing Rehabilitation ...... Rehabilitation of 30 single Executive Director, P.O. Box 327, Lame Deer, MT 59043, family dwellings. (406) 477–6419. Oglala Sioux (Lakota) Housing Authority, Doyle Pipe On 1,100,000 Housing Rehabilitation ...... Rehabilitation of 190 single Head, Assistant CEO, 400 East Main, Pine Ridge, SD family dwellings. 57770, (605) 867–5161. Oneida Tribe of WI, Honorable Ed Delgado, Chairman, P.O. 600,000 Public Facility Community Elder Village Infrastructure. Box 365, Oneida, WI 54155, (920) 869–4000. Center. Ottawa Tribe, Honorable Ethel Cook, Chief, P.O. Box 110, 800,000 Housing Rehabilitation ...... Housing Rehabilitation. Miami OK 74355, (918) 540–1536. Paiute Indian Tribe of Utah, Gayle Rollo, Tribal Adminis- 900,000 Economic Development ...... Design and construction of trator, 440 North Paiute Drive, Cedar City, UT 84721, the Koosharem RV Park (435) 586–1112. and Campground. Pawnee Nation of Oklahoma, Honorable George Howell, 800,000 Public Facility Community Ceremonial Round House President, P.O. Box 765, Pawnee, OK 74058, (918) 762– Center. Renovation and Water 3621. Well.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77845

Name/address of applicant Amount funded Activity funded Project description

Pit River Tribal Housing Board, Allen Lowry, Executive Di- 559,000 Housing Construction ...... Construct 5 units. rector, P.O. Box 2350, Burney, CA 96013, (530) 335– 4809. Poarch Band of Creek Indians of AL, Honorable Buford L. 600,000 Public Facility Community Senior Services Center. Rolin, Chairperson, 5811 Jack Springs Road, Atmore, AL Center. 36502, (251) 368–9136. Pueblo of Zuni, Honorable Arlen Quetawki Sr., Governor, 2,200,000 Housing Rehabilitation ...... Rehabilitation of 35 units. P.O. Box 339, Zuni, NM 87327–0339, (505) 782–7021. Puyallup Nation Housing Authority, Annette Bryan, Execu- 500,000 Housing Rehabilitation ...... Rehabilitation of 27 housing tive Director, P.O. Box 1844, Tacoma, WA 98404, (253) units. 680–5995. Quapaw Tribe of Oklahoma, Honorable John Berrey, Chair- 799,894 Public Facility Community Quapaw Elder Center Expan- man, P.O. Box 765, Quapaw, OK 74363, (918) 542–1853. Center. sion. Quechan Tribally Designated Housing Entity, Tad Zavodsky, 425,301 Public Facility Infrastructure .. Streets, Roads & Sidewalks Executive Director, 1860 W Sapphire Lane, Winterhaven, for existing development. CA 92283, (760) 572–0245. Reno-Sparks Indian Colony, Honorable Arlan Melendez, 605,000 Housing Rehabilitation ...... Rehabilitation of 120 homes & Chairperson, 98 Colony Road, Reno, NV 89502, (775) Security Camera installation 329–2936. for 15 unit Apartment Com- plex. Salish and Kootenai Housing Authority, Jason Adams, Ex- 641,578 Housing Rehabilitation ...... Rehabilitation of 18 single ecutive Director, P.O. Box 38, Pablo, MT 59855, (406) family dwellings. 675–4491. Seneca-Cayuga Tribe of Oklahoma, Honorable Leroy How- 718,962 Public Facility Community Renovation of the Seneca- ard, Chief, 23701 S. 655 Road, Grove, OK 74344, (918) Center. Cayuga Clinic. 787–5452 ext. 12. Shageluk Native Village, Randy Workman, First Chief, P.O. 580,000 Public Facility Community Multi-purpose community cen- Box 35, Shageluk, AK 99665, (907) 473–8239. Center. ter. Shawnee Tribe, Honorable Ron Sparkman, Chairman, P.O. 341,065 Public Facility Community Continue Rehabilitation of the Box 189, Miami, OK 74355, (918) 542–2441. Center. Shawnee Tribe Social Serv- ice Resources Center Phase 2. Spokane Tribe, Honorable Gregory Abrahamson, Tribal 62,454 Public Facility Community Youth and Sports Center in Chairman P.O. Box 195, Spokane, WA 99040, (509) 458– Center. low-income housing area. 6507. Spokane Tribe, Honorable Gregory Abrahamson, Tribal 50,000 Public Facility/Infrastructure ... Garbage transfer station im- Chairman P.O. Box 195, Spokane, WA 99040, (509) 458– provements. 6507. St. Croix Chippewa Indians of WI, Honorable Stuart Bear 370,116 Housing Rehabilitation ...... St. Croix Rehab Project. Heart, Chairman, 24663 Angeline Avenue, Webster, WI 54893, (715) 349–5768. St. Regis Band of Mohawk Indians of NY, Honorable Mark 600,000 Public Facility Community Sewer Expansion. Garrow, Chief, Akwesasne, NY 13655, (518) 358–2272. Center. Swinomish Housing Authority, John Petrich, Executive Di- 246,155 Land Acquisition ...... Land acquisition for low in- rector, P.O. Box 677, LaConner, WA, (360) 466–4081. come housing. Swinomish Housing Authority, John Petrich, Executive Di- 253,845 Public Facility/Infrastructure ... Infrastructure for low-income rector, P.O. Box 677, LaConner, WA, (360) 466–4081. housing. Tonkawa Tribe of Oklahoma, Honorable Donald L. Patter- 800,000 Public Facility Community Public Building Renovation. son, President, 1 Rush Buffalo Road, Tonkawa OK Center. 74653, (580) 628–2561. Turtle Mountain Band of Chippewa Indians, Sharon Poitra, 600,000 Housing Rehabilitation ...... Rehabilitation of 15 single Block Grant Administrator, P.O. Box 900, Belcourt, ND family, Dwellings. 58316, (701) 477–6124. United Keetoowah Band, Honorable George Wickliffe, Chief, 800,000 Public Facility Community Transit Facility. P.O. Box 746, Tahlequah OK 74465, (918) 456–5126. Center. Village of Atmautluak, Gerald Pflugh, Grant Writer, P.O. Box 600,000 Public Facility Community Renovate Health Clinic. 6568, Atmautluak, AK 99559, (907) 459–1800. Center. Washoe Housing Authority, Raymond Gonzales Jr., Execu- 605,000 Housing Infrastructure ...... Subdivision Infrastructure. tive Director, 1588 Watasheamu Drive, Gardnerville. NV 89410, (775) 265–2410. White Earth Band of Chippewa, Honorable Erma Vizenor, 600,000 Public Facility Community Work Force Development Chairperson, PO Box 418, White Earth, MN 56591, (218) Center. Center. 983–3285. Ysleta Del Sur, Honorable Frank Paiz, Governor, 119 S. Old 605,000 Public Facility Community Construct Employment Train- Pueblo Road, El Paso, TX 79917, (915) 859–8053. Center. ing Building. Yurok Tribe, Honorable Thomas O’Rourke Sr., Chairperson, 605,000 Public Facility & Improve- Cultural Knowledge Park. P.O. Box 1027, Klamath, CA 95548–1027, (707) 482– ments. 1350.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00080 Fmt 4703 Sfmt 9990 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77846 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

[FR Doc. 2011–32083 Filed 12–13–11; 8:45 am] Dated: November 21, 2011. During the public comment period, the BILLING CODE 4210–67–P Dominica Van Koten, Consent Decree may also be examined Chief Cadastral Surveyor. on the following Department of Justice [FR Doc. 2011–32023 Filed 12–13–11; 8:45 am] Web site, http://www.usdoj.gov/enrd/ _ BILLING CODE 4310–GJ–P Consent Decrees.html. A copy of the DEPARTMENT OF THE INTERIOR Consent Decree may also be obtained by mail from the Consent Decree Library, Bureau of Land Management DEPARTMENT OF JUSTICE P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611 or [LLES956000–L19100000–BK0000– Notice of Lodging of Consent Decree by faxing or emailing a request to Tonia LCRMM0M04561] Under the Comprehensive Fleetwood ([email protected]), Environmental Response, fax no. (202) 514–0097, phone Eastern States: Filing of Plat of Survey Compensation, and Liability Act confirmation number (202) 514–1547. When requesting a copy from the AGENCY: Bureau of Land Management, Notice is hereby given that on Interior. Consent Decree Library, please enclose December 8, 2011, a proposed Consent a check in the amount of $5.50 (25 cents ACTION: Notice of Filing of Plat of Decree in United States v. City of per page reproduction cost) for the Survey; Wisconsin. Boulder, Colorado, Honeywell Consent Decree, payable to the U.S. International, Inc., and Tusco, Inc., Treasury or, if by email or fax, forward SUMMARY: The Bureau of Land Civil Action No. 11-cv-03178 WJM– a check in that amount to the Consent Management (BLM) will file the plat of MJW, was lodged with the United States Decree Library at the address above. survey of the lands described below in District Court for the District of the BLM–Eastern States office in Colorado. The proposed Consent Robert Brook, Springfield, Virginia, 30 calendar days Decree, lodged on December 8, 2011, Assistant Chief, Environmental Enforcement from the date of publication in the resolves the liability of defendants City Section, Environment and Natural Resources Federal Register. of Boulder, Colorado, Honeywell Division. FOR FURTHER INFORMATION CONTACT: International, Inc., and Tusco, Inc. [FR Doc. 2011–32052 Filed 12–13–11; 8:45 am] Bureau of Land Management-Eastern (‘‘Defendants’’), for claims alleged in the BILLING CODE 4410–15–P States, 7450 Boston Boulevard, Complaint filed on December 7, 2011, Springfield, Virginia 22153. Attn: under Section 107(a) of the Cadastral Survey. Persons who use a Comprehensive Environmental DEPARTMENT OF JUSTICE telecommunications device for the deaf Response, Compensation and Liability (TDD) may call the Federal Information Act (‘‘CERCLA’’), 42 U.S.C. 9607(a). In [CPCLO Order No. 004–2011] Relay Service (FIRS) at 1–(800) 877– the Complaint, the United States sought 8339 to contact the above individual recovery of response costs from the Privacy Act of 1974; System of during normal business hours. The FIRS Defendants in connection with the Records Hendricks Mining and Milling Site (a/k/ is available 24 hours a day, 7 days a AGENCY: Federal Bureau of a Valmont Butte Site) North 63rd Street week, to leave a message or question Investigation, Department of Justice. with the above individual. You will and Valmont Road in Boulder, Colorado ACTION: receive a reply during normal business (‘‘the Site’’). The proposed Consent Notice to amend system of hours. Decree, lodged on December 8, 2011, records. requires the Defendants to pay $350,000 SUPPLEMENTARY INFORMATION: The SUMMARY: The Federal Bureau of survey was requested by the Bureau of in response costs incurred in connection Investigation proposes to amend its Indian Affairs. with the Site and resolves the Terrorist Screening Records System, The lands surveyed are: Defendants’ liability for such costs JUSTICE/FBI–019, maintained by the incurred through the date of lodging of Fourth Principal Meridian, Wisconsin Terrorist Screening Center, to add two the Consent Decree. The cleanup of the new categories of individuals and their T. 51 N., R. 2 W. Site will be performed pursuant to plans associated records, to add a new routine The plat of survey represents the approved under the Colorado Voluntary use and make modifications to existing dependent resurvey of a portion of the South Cleanup Program and is not the subject boundary, a portion of the subdivisional lines routine uses, and to make several of the Consent Decree. administrative modifications and and the subdivision of Section 35, in The Department of Justice will receive updates throughout the notice. Public Township 51 North, Range 2 West, in the comments relating to the proposed comment is invited. State of Wisconsin, and was accepted Consent Decree for a period of thirty November 4, 2011. (30) days from the date of this DATES: In accordance with 5 USC We will place a copy of the plat we publication. Please address comments to 552a(e)(4) and (11), the public is given described in the open files. It will be the Assistant Attorney General, a 30-day period in which to comment available to the public as a matter of Environment and Natural Resources Therefore, please submit any comments information. Division, by email to pubcomment- by January 13, 2012. If BLM receives a protest against the [email protected] or regular mail to ADDRESSES: The public, Office of survey, as shown on the plat, prior to P.O. Box 7611, U.S. Department of Management and Budget (OMB), and the date of the official filing, we will Justice, Washington, DC 20044–7611, Congress are invited to submit any stay the filing pending our and refer to United States v. City of comments to the Department of Justice, consideration of the protest. Boulder, Colorado, Honeywell Attn: Privacy Analyst, Office of Privacy We will not officially file the plat International, Inc., and Tusco, Inc., D.J. and Civil Liberties, National Place until the day after we have accepted or Ref. 90–11–3–10118. Building, 1331 Pennsylvania Avenue dismissed all protests and they have The Consent Decree may be examined NW., Suite 1000, Washington, DC become final, including decisions on at U.S. EPA Region VIII, 1595 Wynkoop 20530–0001, or by facsimile to (202) appeals. Street, Denver, Colorado, 80202–1129. 307–0693.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77847

FOR FURTHER INFORMATION CONTACT: describe the system’s purpose and g. Individuals about whom a terrorist Meghann Van Horne, TSC Privacy routine uses. The FBI is republishing watchlist-related redress inquiry has Officer, Federal Bureau of Investigation, the entire system of records notice for been made; and 935 Pennsylvania Avenue NW., ease of reference to these changes. h. Individuals whose information is Washington, DC 20535–0001. In accordance with 5 U.S.C. 552a(r), collected and maintained for SUPPLEMENTARY INFORMATION: JUSTICE/ the Department of Justice has provided information system user auditing and FBI–019, last published in full at 72 FR a report to OMB and the Congress on the security purposes, such as individuals 47073 (Aug. 22, 2007), describes the modification of this system of records. who are authorized users of TSC Terrorist Screening Records System Dated: November 23, 2011. information systems. maintained by the Federal Bureau of Nancy C. Libin, CATEGORIES OF RECORDS IN THE SYSTEM: Investigation (FBI) at the Terrorist Chief Privacy and Civil Liberties Officer, a. Identifying biographical Screening Center (TSC) and at facilities United States Department of Justice. operated by other government entities. information, such as name, date of birth, These records are used in screening JUSTICE/FBI–019 place of birth, passport and/or drivers operations to ensure the security of the license information, biometric SYSTEM NAME: United States. The FBI now proposes to information, such as photographs and add two new categories of individuals to Terrorist Screening Records System fingerprints, and other available the system whose records will be useful (TSRS). identifying particulars used to compare in screening operations: Relatives, the identity of an individual being SECURITY CLASSIFICATION: associates, or others closely connected screened, with a known or suspected with known or suspected terrorists who Classified and unclassified. terrorist, an INA exception, or a military are excludable from the United States detainee, including audit records SYSTEM LOCATION: based on these relationships by virtue of containing this information; Section 212(a)(3)(B) of the Immigration Records described in this notice are b. Information about encounters with and Nationality Act, as amended, and maintained at the Terrorist Screening individuals covered by this system, individuals who were officially Center, Federal Bureau of Investigation, such as date, location, screening entity, detained during military operations, but Washington, DC, and at facilities analysis, associated individuals, and not as enemy prisoners of war, and who operated by other government entities results (positive or negative identity have been identified as possibly posing for terrorism and national security match), and, for encounters with a a threat to national security. This latter threat screening, system back-up, and known or suspected terrorist, INA category of individuals is commonly continuity of operations purposes. exceptions, and military detainees only, referred to as Military Detainees. other entities notified and details of any CATEGORIES OF INDIVIDUALS COVERED BY THE law enforcement, intelligence, or other Excludable individuals under the first SYSTEM: category may be lawful permanent operational response; residents of the United States. a. Individuals known or appropriately c. For a known or suspected terrorist, Individuals in the second category are suspected to be or have been engaged in military detainee, or an INA exception, unlikely to be lawful permanent conduct constituting, in preparation for, in addition to the categories of records residents of the United States and even in aid of, or related to terrorism listed above, references to and/or less likely to be U.S. citizens. (‘‘known or suspected terrorists’’); information from other government law Nevertheless, out of an abundance of b. Individuals, who are lawful enforcement and intelligence databases, caution and because potentially the permanent resident aliens but who are or other relevant databases that may status of a military detainee may change excludable from the United States based contain terrorism information; over time, the FBI is including military on their familial relationship, d. For an individual considered to detainee records in its Terrorist association, or connection with a known pose an actual or possible threat to Screening Records Systems. In addition or suspected terrorist and who do not national security, in addition to the to adding the two new categories of meet any of the applicable exceptions as categories of records listed above, individuals, the FBI is also adding a described in Section 212(a)(3)(B) of the references to and/or information from routine use, which will enable the FBI Immigration and Nationality Act of 1952 other government law enforcement and to share information about individuals (hereinafter INA exceptions); intelligence databases, or other relevant who are excludable from the United c. Individuals who were officially databases that may contain information States by virtue of Section 212(a)(3)(B) detained during military operations, but related to possible threats to national of the Immigration and Nationality Act as not Enemy Prisoners of War, and who security; with the Department of State and the have been identified to pose an actual e. For misidentified persons, in Department of Homeland Security for or possible threat to national security addition to the categories of records the purposes of carrying out the (hereinafter military detainees); listed above, other identifying provisions of this Act. The FBI is d. Individuals who are the subject of information that will be used during making pertinent revisions in other queries against TSC information screening only for the purpose of parts of the system notice to reflect the systems; distinguishing them from a known or addition of these categories of e. Individuals identified during a suspected terrorist, an INA exception, or individuals. Additional modifications to terrorism screening process as a possible a military detainee, any of whom may Justice/FBI–019 include: Updates to the identity match to a known or suspected have similar identifying characteristics system location, record access terrorist and other individuals who (such as name and date of birth); procedures, and procedures for accompany or travel with such f. For redress matters, in addition to contesting records; clarifications to individuals; the categories of records listed above, existing categories of records in the f. Individuals who are misidentified information provided by individuals or system; updates to the authorities as a possible identity match to a known their representatives, information section to reflect new authorities; and or suspected terrorist (‘‘misidentified provided by the screening agency, and additions or changes to more accurately persons’’); internal work papers and other

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77848 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

documents related to researching and Directive-24, ‘‘Biometrics for blanket routine uses established for FBI resolving the matter; Identification and Screening to Enhance record systems. See Blanket Routine g. Information collected and compiled National Security,’’ to identify Uses (BRU) Applicable to More Than to maintain an audit trail of the activity individuals considered to pose an actual One FBI Privacy Act System of Records, of authorized users of TSC information or possible threat to national security. Justice/FBI–BRU, published at 66 FR systems, such as user name/ID, date/ d. To maintain current, accurate and 33558 (June 22, 2001) and amended at time, search query and results data, user thorough terrorist information and other 70 FR 7513 (February 14, 2005). In activity information (e.g., record lawfully acquired information in a addition, as routine uses specific to this retrieval, modification, or deletion data), consolidated terrorist screening system, the TSC may disclose relevant and record numbers; and, database and determine which system records to the following persons h. Archived records and record screening processes will use each entry or entities and under the circumstances histories from the Terrorist Screening in the database. or for the purposes described below, to Database, Encounter Management e. To ensure that appropriate the extent such disclosures are Application, and other TSC data information possessed by state, local, compatible with the purpose for which systems that are part of the TSRS. territorial, and tribal governments, the information was collected. which is lawfully available to the A. To those federal agencies that have AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Federal Government, is considered in agreed to provide support to TSC for Homeland Security Presidential determinations made by the TSC as to purposes of ensuring the continuity of Directive-6, ‘‘Integration and Use of whether a person is a match to a known TSC operations. Screening Information to Protect or suspected terrorist, or a match to an B. To federal, state, local, tribal, Against Terrorism’’ (Sept. 16, 2003); individual considered to pose an actual territorial, foreign, multinational or Homeland Security Presidential or possible threat to national security. other public agencies or entities, to Directive-11, ‘‘Comprehensive Terrorist- f. To host mechanisms and make entities regulated by any such agency or Related Screening Procedures’’ (Aug. 27, terrorism information, and information entity, and to owners/operators of 2004); National Security Presidential related to individuals considered to critical infrastructure or private sector Directive-59/Homeland Security pose an actual or possible threat to entities with a substantial bearing on Presidential Directive-24, ‘‘Biometrics national security, available to support national or homeland security and their for Identification and Screening to appropriate domestic and foreign agents, contractors or representatives, Enhance National Security’’ (June 5, terrorism and national security for the following purposes: (1) For use 2008), (HSPD-24 gives the Attorney screening processes, and private-sector in and in support of terrorism screening, General authority to recommend screening processes that have a or possible national security threat categories of individuals in addition to substantial bearing on homeland screening, authorized by the U.S. known or suspected terrorists who may security. Government, (2) to provide appropriate pose a threat to national security.); g. To provide operational support to notifications of the results of terrorism Executive Order 13388, ‘‘Further assist in the identification of persons screening, or possible national security Strengthening the Sharing of Terrorism screened and to facilitate an appropriate threat screening, using information from Information to Protect Americans,’’ and lawful response when a known or the Terrorist Screening Database or a (October 25, 2005); the Intelligence suspected terrorist, or individual threat related to a positive encounter Reform and Terrorism Prevention Act of considered to pose an actual or possible with an individual identified in the 2004, Pub. L. 108–458; the National threat to national security, is identified Terrorist Screening Database, (3) to Security Act of 1947, as amended; 28 in an authorized screening process. facilitate any appropriate law U.S.C. 533; and Section 212(a)(3)(B) of h. To provide appropriate government enforcement or other response (e.g., the Immigration and Nationality Act of officials, agencies, or organizations with medical and containment response to a 1952. In the event that the TSC’s information about encounters with biological hazard) to a known or continuity-of-operations plans are known or suspected terrorists or suspected terrorist, an individual invoked, the agency that assumes TSC military detainees, INA exceptions or considered to pose an actual or possible operational functions will have the other individuals considered to pose an threat to national security, or a threat authority to administer the Terrorist actual or possible threat to national related to an encounter with such an Screening Records System as necessary security. individual, and (4) to assist persons to carry out those functions. i. To assist persons misidentified misidentified during a screening during a terrorism screening process, or process. PURPOSE(S): possible national security threat C. To any person, organization, or a. To implement the U.S. screening process, and to assist governmental entity in order to notify Government’s National Strategy for screening agencies or entities in them of a terrorist threat, or possible Homeland Security and Homeland responding to individual complaints national security threat, for the purpose Security Presidential Directive-6, to about the screening process (redress). of guarding against or responding to identify potential terrorist threats, to j. To oversee the proper use, such a threat. D. To federal, state, local, tribal, uphold and enforce the law, and to maintenance, and security of TSC data territorial, foreign, or multinational ensure public safety. systems and TSC personnel. b. To consolidate the government’s agencies or entities, or other approach to terrorism and national ROUTINE USES OF RECORDS MAINTAINED IN THE organizations that are engaged in, or are security screening and provide for the SYSTEM, INCLUDING CATEGORIES OF USERSAND planning to engage in terrorism appropriate and lawful use of terrorist THE PURPOSES OF SUCH USES: screening, or possible national security information and other lawfully acquired In addition to those disclosures threat screening, authorized by the U.S. information in screening processes. generally permitted under 5 U.S.C. Government, for the purpose of the c. To implement the U.S. 552a(b) of the Privacy Act, the records development, testing, or modification of Government’s Action Plan for National or information in this system may be information technology systems used or Security Presidential Directive-59/ disclosed as a routine use, under 5 intended to be used during or in support Homeland Security Presidential U.S.C. 552a(b)(3), in accordance with of the screening process; whenever

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77849

practicable, however, TSC, to the extent information is relevant to the recipient authorized and escorted visitors. possible, will substitute anonymized or entity’s law enforcement Physical security protections include de-identified data, such that the identity responsibilities. guards and locked facilities requiring of the individual cannot be derived from K. To a governmental entity lawfully badges and passwords for access. the data. engaged in collecting law enforcement, Records are accessed only by authorized E. To federal, state, local, tribal, law enforcement intelligence, national government personnel and contractors territorial, foreign, multinational security information, homeland security and are protected by appropriate agencies or entities, or private sector information, national intelligence, physical and technological safeguards to entities to assist in coordination of possible national security threat prevent unauthorized access. All terrorist threat, or possible national information, or terrorism information Federal employees and contractors security threat, awareness, assessment, for law enforcement, intelligence, assigned to the TSC must hold an analysis or response. national security, homeland security, or appropriate security clearance, sign a F. To any person or entity in either counterterrorism purposes. non-disclosure agreement, and undergo the public or private sector, domestic or L. To appropriate agencies, entities, privacy and security training. foreign, where reasonably necessary to and persons when (1) The Department elicit information or cooperation from of Justice suspects or has confirmed that RETENTION AND DISPOSAL: the recipient for use by the TSC in the the security or confidentiality of Records in this system will be performance of an authorized function, information in the system of records has retained and disposed of in accordance such as obtaining information from data been compromised; (2) the Department with the records schedule approved by sources as to the thoroughness, of Justice has determined that as a result the National Archives and Records accuracy, currency, or reliability of the of the suspected or confirmed Administration. In general, for records data provided so that the TSC may compromise there is a risk of harm to maintained in the Terrorist Screening review the quality and integrity of its economic or property interests, identity Database, active records are maintained records for quality assurance or redress theft or fraud, or harm to the security or for 99 years and inactive (archived) purposes, and may also assist persons integrity of this system or other systems records are maintained for 50 years. misidentified during a screening or programs (whether maintained by the Records of possible encounters with process. Department or another agency or entity) individuals on the Terrorist Screening G. To any federal, state, local, tribal, that rely upon the compromised Database are maintained for 99 years. territorial, foreign or multinational information; and (3) the disclosure Records of redress inquiries and quality agency, task force, or other entity or made to such agencies, entities, and assurance matters are maintained for at person that receives information from persons is reasonably necessary to assist least six years. Audit logs are the U.S. Government for terrorism in connection with the Department of maintained for 25 years and records of screening purposes, or possible national Justice’s efforts to respond to the user audits are maintained for ten years. security threat screening purposes, in suspected or confirmed compromise order to facilitate TSC’s or the SYSTEM MANAGER(S) AND ADDRESS: and prevent, minimize, or remedy such recipient’s review, maintenance, and harm. Director, Terrorist Screening Center, correction of TSC data for quality M. To the United States Department Federal Bureau of Investigation, FBI assurance or redress purposes, and to of State and the United States Headquarters, 935 Pennsylvania Avenue assist persons misidentified during a Department of Homeland Security for NW., Washington, DC 20535–0001. screening process. H. To any agency, organization or the purpose of carrying out their NOTIFICATION PROCEDURE: person for the purposes of (1) responsibilities under Section Because this system contains performing authorized security, audit, 212(a)(3)(B) of the Immigration and classified intelligence and law or oversight operations of the DOJ, FBI, Nationality Act of 1952. enforcement information related to the TSC, or any agency, organization, or DISCLOSURE TO CONSUMER REPORTING government’s counterterrorism, law person engaged in or providing AGENCIES: enforcement, and intelligence programs, information used for terrorism None. records in this system have been screening, or possible national security exempted from notification, access, and threat screening, that is supported by POLICIES AND PRACTICES FOR STORING, amendment to the extent permitted by the TSC, and (2) meeting related RETRIEVING, ACCESSING, RETAINING, AND subsections (j) and (k) of the Privacy reporting requirements. DISPOSING OF RECORDS IN THE SYSTEM: Act. Requests for notification should be I. To a former employee of the TSC for STORAGE: addressed to the FBI at the address and purposes of: Responding to an official Records in this system are stored in according to the requirements set forth inquiry by a federal, state, or local paper and/or electronic format. below under the heading ‘‘Record government entity or professional Electronic storage is on servers, CD– Access Procedures.’’ licensing authority, in accordance with ROMs, DVD–ROMs, and magnetic tapes. any applicable Department regulations; RECORD ACCESS PROCEDURES: or facilitating communications with a RETRIEVABILITY: Because this system contains former employee that may be necessary Records in this system are typically classified intelligence and law for personnel-related or other official retrieved by individual name, date of enforcement information related to the purposes where the TSC requires birth, passport number, and other government’s counterterrorism, law information and/or consultation identifying data, including unique enforcement and intelligence programs, assistance from the former employee identifying numbers assigned by the records in this system have been regarding a matter within that person’s TSC or other government agencies. exempted from notification, access, and former area of responsibility. amendment to the extent permitted by J. To any criminal, civil, or regulatory SAFEGUARDS: subsections (j) and (k) of the Privacy law enforcement authority (whether All records are maintained in a secure Act. A request for access to a non- federal, state, local, territorial, tribal, government facility with access limited exempt record shall be made in writing multinational or foreign) where the to only authorized personnel or with the envelope and the letter clearly

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77850 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

marked ‘‘Privacy Act Request.’’ Include minimum, individuals should describe Drug Schedule in the request your full name and in as much detail as possible the complete address. The requester must problem they are having, including Dihydromorphine (9145) ...... I sign the request; and, to verify it, the dates and locations of screening, and Hydromorphone (9150) ...... II signature must be notarized or provide sufficient information to submitted under 28 U.S.C. 1746, a law identify themselves, such as full name, Dihydromorphine is an intermediate that permits statements to be made citizenship status, and date and place of in the manufacture of Hydromorphone, under penalty of perjury as a substitute birth. The TSC assists the screening and is not for commercial distribution. for notarization. You may submit any agency in resolving any screening The company plans to manufacture other identifying data you wish to complaints that may relate to terrorist Hydromorphone HCL for sale to other furnish to assist in making a proper watch list information, but does not manufacturers, and to manufacture search of the system. Requests for access receive or respond to individual other controlled substances for to information must be addressed to the complaints directly. However, if TSC distribution to its customers. Record Information Dissemination receives any such complaints, TSC will Any other such applicant, and any Section, Federal Bureau of Investigation, forward them to the appropriate person who is presently registered with 170 Marcel Drive, Winchester, Virginia screening agency. Additional DEA to manufacture such substances, 22602 or faxed to (540) 868–4992. information about the redress process may file comments or objections to the issuance of the proposed registration CONTESTING RECORD PROCEDURES: and how to file a complaint with a screening agency is available on TSC’s pursuant to 21 CFR 1301.33(a). Because this system contains Any such written comments or classified intelligence and law Web site at http://www.fbi.gov/about-us/ nsb/tsc/tsc_redress. objections should be addressed, in enforcement information related to the quintuplicate, to the Drug Enforcement government’s counterterrorism, law RECORD SOURCE CATEGORIES: Administration, Office of Diversion enforcement and intelligence programs, Control, Federal Register Representative records in this system are exempt from Information in this system is obtained (ODL), 8701 Morrissette Drive, notification, access, and amendment to from individuals covered by the system, Springfield, Virginia 22152; and must be the extent permitted by subsections (j) public sources, agencies and private filed no later than February 13, 2012. and (k) of the Privacy Act (5 U.S.C. sector entities conducting terrorism Dated: December 2, 2011. 552a). Requests for amendment should screening, law enforcement and be addressed to the FBI at the address intelligence agency record systems, Joseph T. Rannazzisi, and according to the requirements set government databases, and foreign Deputy Assistant Administrator, Office of forth above under the heading ‘‘Record governments. Diversion Control, Drug Enforcement Access Procedures.’’ If, however, Administration. individuals are experiencing repeated SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS [FR Doc. 2011–32045 Filed 12–13–11; 8:45 am] delays or difficulties during a OF THE ACT: BILLING CODE 4410–09–P government screening process and believe that this might be related to The Attorney General has exempted terrorist watch list information, they this system from subsections (c)(3) and DEPARTMENT OF LABOR may contact the Federal agency that is (4), (d)(1), (2), (3) and (4), (e)(1), (2), (3), conducting the screening process in (5) and (8), and (g) of the Privacy Act Occupational Safety and Health question (‘‘screening agency’’). The pursuant to 5 U.S.C. 552a(j) and (k). Administration screening agency is in the best position These exemptions apply only to the [Docket No. OSHA–2011–0858] to determine if a particular problem extent that information in the system is relates to a terrorist watch list entry or subject to exemption pursuant to 5 Permit-Required Confined Spaces; is due to some other cause, such as a U.S.C. 552a(j) and (k). Rules have been Extension of the Office of Management criminal history, an immigration promulgated in accordance with the and Budget’s (OMB) Approval of violation or random screening. Some requirements of 5 U.S.C. 553(b), (c) and Information Collection (Paperwork) individuals also experience repeated (e) and are located at 28 CFR 16.96. Requirements delays during screening because their [FR Doc. 2011–32074 Filed 12–13–11; 8:45 am] names and/or other identifying data, AGENCY: Occupational Safety and Health BILLING CODE 4410–02–P such as dates of birth, are similar to Administration (OSHA), Labor. those of known or suspected terrorists. ACTION: Request for public comments. These individuals, referred to as DEPARTMENT OF JUSTICE SUMMARY: ‘‘misidentified persons,’’ often believe OSHA solicits public comments concerning its proposal to that they themselves are on a terrorist Drug Enforcement Administration watch list, when in fact they only bear extend OMB approval of the information collection requirements a similarity in name or other identifier Manufacturer of Controlled contained in the Standard on Permit- to an individual on the list. Most Substances; Notice of Application screening agencies have or are Required Confined Spaces (29 CFR developing procedures to expedite the Pursuant to § 1301.33(a), Title 21 of 1910.146). The purpose of the clearance of misidentified persons the Code of Federal Regulations (CFR), information is to ensure that employers during screening. By contacting the this is notice that on July 8, 2011, Halo systematically evaluate the dangers in screening agency with a complaint, Pharmaceutical Inc., 30 North Jefferson permit spaces before entry is attempted, individuals will be able to take Road, Whippany, New Jersey 07981, and to ensure that adequate measures advantage of the procedures available to made application by renewal to the are taken to make the spaces safe for help misidentified persons and others Drug Enforcement Administration entry. experiencing screening problems. Check (DEA) to be registered as a bulk DATES: Comments must be submitted the agency’s requirements for manufacturer of the following basic (postmarked, sent, or received) by submitting complaints but, at a classes of controlled substances: February 13, 2012.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77851

ADDRESSES: I. Background person providing the certification. The Electronically: You may submit The Department of Labor, as part of its certification is to be made before entry comments and attachments continuing effort to reduce paperwork and is required to be made available to electronically at http:// and respondent (i.e., employer) burden, each employee entering the space or to www.regulations.gov, which is the conducts a preclearance consultation that employee’s authorized Federal eRulemaking Portal. Follow the program to provide the public with an representative. Section 1910.146(c)(7)(iii) requires the instructions online for submitting opportunity to comment on proposed employer to document the basis for comments. and continuing information collection determining that all hazards in a permit requirements in accordance with the Facsimile: If your comments, space have been eliminated using a Paperwork Reduction Act of 1995 (44 including attachments, are not longer certification that contains the date, the U.S.C. 3506(c)(2)(A)). This program than 10 pages you may fax them to the location of the space, and the signature OSHA Docket Office at (202) 693–1648. ensures that information is in the of the person making the determination. Mail, hand delivery, express mail, desired format, reporting burden (time The certification is to be made available messenger, or courier service: When and costs) is minimal, collection to each employee entering the space or using this method, you must submit a instruments are clearly understood, and to that employee’s authorized copy of your comments and attachments OSHA’s estimate of the information representative. to the OSHA Docket Office, Docket No. collection burden is accurate. The Section 1910.146(c)(8)(i) requires that OSHA–2011–0858, Occupational Safety Occupational Safety and Health Act of when a host employer arranges for and Health Administration, U.S. 1970 (the OSH Act) (29 U.S.C. 651 et employees of another employer Department of Labor, Room N–2625, seq.) authorizes information collection (contractor) to perform work that 200 Constitution Avenue NW., by employers as necessary or involves permit-space entry the host Washington, DC 20210. Deliveries appropriate for enforcement of the OSH employer must inform the contractor (hand, express mail, messenger, and Act or for developing information that the workplace contains permit courier service) are accepted during the regarding the causes and prevention of spaces and that permit space entry is Department of Labor’s and Docket occupational injuries, illnesses, and allowed only following compliance with Office’s normal business hours, 8:15 accidents (29 U.S.C. 657). The OSH Act a permit-space program meeting the a.m. to 4:45 p.m., e.t. also requires that OSHA obtain such requirements of this section. information with minimum burden Section 1910.146(c)(8)(ii) requires that Instructions: All submissions must upon employers, especially those the employer inform the contractor of include the Agency name and OSHA operating small businesses, and to the elements, including the hazards docket number (OSHA–2011–0858) for reduce to the maximum extent feasible identified and the host employer’s the Information Collection Request unnecessary duplication of efforts in experience with the space, that make (ICR). All comments, including any obtaining information (29 U.S.C. 657). the space in question a permit space. personal information you provide, are Section 1910.146(c)(2) requires the Section 1910.146(c)(8)(iii) requires that placed in the public docket without employer to post danger signs to inform the employer inform the contractor of change, and may be made available exposed employees of the existence and any precautions or procedures that the online at http://www.regulations.gov. location of, and the danger posed by, host employer has implemented to For further information on submitting permit spaces. protect employees in or near permit comments see the ‘‘Public Section 1910.146(c)(4) requires the spaces where contractor personnel will Participation’’ heading in the section of employer to develop and implement a be working. Section 1910.146(c)(8)(v) this notice titled SUPPLEMENTARY written ‘‘permit-space program’’ when requires the employer to debrief the INFORMATION. the employer decides that its employees contractor at the conclusion of the entry Docket: To read or download will enter permit spaces. The written operations regarding the permit-space comments or other material in the program is to be made available for program followed and regarding any docket, go to http://www.regulations.gov inspection by employees and their hazards confronted or created in permit or the OSHA Docket Office at the authorized representatives. Section spaces during entry operations. address above. All documents in the 1910.146(d) provides the employer with Section 1910.146(c)(9)(iii) requires docket (including this Federal Register the requirements of a permit-required that the contractor inform the host notice) are listed in the http:// confined space program (‘‘permit-space employer of the permit-space program www.regulations.gov index; however, program’’) required under this that the contractor will follow and of some information (e.g., copyrighted paragraph. any hazards confronted or created in material) is not publicly available to Section 1910.146(c)(5)(i)(E) requires permit spaces; the contractor will read or download through the Web site. that the determinations and supporting inform the host employer either through All submissions, including copyrighted data specified by paragraphs (c)(5)(i)(A), a debriefing or during the entry material, are available for inspection (c)(5)(i)(B), and (c)(5)(i)(C) of this operation. and copying at the OSHA Docket Office. section are documented by the employer Section 1910.146(d)(5)(vi) requires the You may also contact Theda Kenney at and are made available to each employer to immediately provide each the address below to obtain a copy of employee who enters a permit space or authorized entrant or that employee’s the ICR. to that employee’s authorized authorized representative with the representative. results of any testing conducted in FOR FURTHER INFORMATION CONTACT: Under paragraph (c)(5)(ii)(H) of accordance with paragraph (d) of this Theda Kenney or Todd Owen, § 1910.146, the employer is required to section. Directorate of Standards and Guidance, verify that the space is safe for entry and Section 1910.146(e)(1) requires the OSHA, U.S. Department of Labor, Room that the pre-entry measures required by employer to document the completion N–3609, 200 Constitution Avenue NW., paragraph (c)(5)(ii) of this section have of measures required by paragraph (d)(3) Washington, DC 20210; telephone (202) been taken, using a written certification by preparing an entry permit before 693–2222. that contains the date, the location of employee entry is authorized. Paragraph SUPPLEMENTARY INFORMATION: the space, and the signature of the (f) of § 1910.146 specifies the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77852 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

information to be included on the entry • Ways to minimize the burden on date, and the docket number so the permit. Paragraph (e)(3) requires that the employers who must comply; for Agency can attach them to your employer make the completed permit example, by using automated or other comments. available at the time of entry to all technological information collection Because of security procedures, the authorized entrants by posting the and transmission techniques. use of regular mail may cause a permit at the entry portal or by any significant delay in the receipt of III. Proposed Actions other equally effective means, so that comments. For information about the entrants can know that pre-entry OSHA is requesting that OMB extend security procedures concerning the preparations have been completed. its approval of the information delivery of materials by hand, express Paragraph (e)(6) requires the employer collection requirements contained in the delivery, messenger, or courier service, to retain each canceled entry permit for Standard on Permit-Required Confined please contact the OSHA Docket Office at least one year. Spaces (29 CFR 1910.146). OSHA is at (202) 693–2350, (TTY (877) 889– Section 1910.146(g)(4) requires that proposing to decrease the existing 5627). the employer certify that the training burden hour estimate for the collection Comments and submissions are required by paragraphs (g)(1) through of information requirements specified posted without change at http:// (g)(3) has been accomplished by by the Standard from 1,475,091 hours to www.regulations.gov. Therefore, OSHA preparing a written certification record. 1,433,443 hours, for a total decrease of cautions commenters about submitting Section 1910.146(k)(1)(iv) requires 41,648 hours. This adjustment was due personal information, such as social that the employer inform each rescue to updated data that indicated a slight security numbers and dates of birth. team or service of the hazards they may decline in the number of establishments Although all submissions are listed in confront when called on to perform a with permit spaces, permit-space the http://www.regulations.gov index, rescue at the site. Section programs, and permit-space entrants. some information (e.g., copyrighted 1910.146(k)(2)(ii) requires that the The Agency will summarize the material) is not publicly available to employer train affected employees to comments submitted in response to this read or download through this Web site. perform assigned rescue duties. The notice and will include this summary in All submissions, including copyrighted employer must ensure that such the request to OMB. material, are available for inspection employees successfully complete the Type of Review: Extension of a and copying at the OSHA Docket Office. training required to establish currently approved collection. Information on using the http:// proficiency as an authorized entrant, as Title: Permit-Required Confined www.regulations.gov Web site to submit provided by paragraphs (g) and (h) of Spaces (29 CFR 1910.146). comments and access the docket is this section. Section 1910.146(k)(2)(iii) OMB Number: 1218–0203. available at the Web site’s ‘‘User Tips’’ Affected Public: Business or other for- requires that the employer train affected link. Contact the OSHA Docket Office profits; Not-for-profit organizations; employees in basic first aid and for information about materials not Federal Government; State, Local, or cardiopulmonary resuscitation (CPR). available through the Web site, and for Tribal Government. The employer shall ensure that at least assistance in using the Internet to locate Number of Respondents: 209,045. docket submissions. one member of the rescue team or Frequency of Response: On occasion. service who holds a current certification Average Time per Response: Varies V. Authority and Signature in first aid and CPR is available. from one minute (.02 hour) to maintain David Michaels, Ph.D., MPH, Section 1910.146(k)(4) requires that if a certificate to 16 hours to develop a Assistant Secretary of Labor for an injured entrant is exposed to a written permit-space entry program. Occupational Safety and Health, substance for which a Material Safety Estimated Total Burden Hours: directed the preparation of this notice. Data Sheet (MSDS) or other similar 1,433,443. The authority for this notice is the written information is required to be Estimated Cost (Operation and Paperwork Reduction Act of 1995 (44 kept at the worksite, that the employer Maintenance): $0. U.S.C. 3506 et seq.) and Secretary of make the MSDS or written information Labor’s Order No. 5–2010 (72 FR available to the medical facility treating IV. Public Participation—Submission of 55355). the exposed entrant. Comments on This Notice and Internet Section 1910.146(l)(2) requires that Access to Comments and Submissions Signed at Washington, DC, on December 9, employers make all information You may submit comments in 2011. required to be developed by this section response to this document as follows: David Michaels, available to affected employees and (1) Electronically at http:// Assistant Secretary of Labor for Occupational their authorized representatives. www.regulations.gov, which is the Safety and Health. Federal eRulemaking Portal; (2) by [FR Doc. 2011–32050 Filed 12–13–11; 8:45 am] II. Special Issues for Comment facsimile (fax); or (3) by hard copy. All BILLING CODE 4510–26–P OSHA has a particular interest in comments, attachments, and other comments on the following issues: material must identify the Agency name • Whether the proposed information and the OSHA docket number for the NATIONAL SCIENCE FOUNDATION collection requirements are necessary ICR (Docket No. OSHA–2011–0858). for the proper performance of the You may supplement electronic Agency Information Collection Agency’s functions, including whether submissions by uploading document Activities: Proposed Collection; the information is useful; files electronically. If you wish to mail Comment Request • The accuracy of OSHA’s estimate of additional materials in reference to an AGENCY: National Science Foundation. the burden (time and costs) of the electronic or facsimile submission, you ACTION: Notice. information collection requirements, must submit them to the OSHA Docket including the validity of the Office (see the section of this notice SUMMARY: The National Science methodology and assumptions used; titled ADDRESSES). The additional Foundation (NSF) is announcing plans • The quality, utility and clarity of materials must clearly identify your to request establishment and clearance the information collected; and electronic comments by your name, of this collection. In accordance with

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77853

the requirement of Section 3506(c)(2)(A) Officer, National Science Foundation, teachers’ uses of NSDL despite the of the Paperwork Reduction Act of 1995, 4201 Wilson Boulevard, Suite 295, significant roles that teachers are we are providing opportunity for public Arlington, Virginia 22230; telephone expected to play in the program in terms comment on this action. After obtaining (703) 292–7556; or send email to of both stimulating demand for and and considering public comment, NSF [email protected]. Individuals who use contributing to the creation of digital will prepare the submission requesting a telecommunications device for the STEM resources, tools, and services and OMB clearance of this collection for no deaf (TDD) may call the Federal also deploying these assets to improve longer than 3 years. Information Relay Service (FIRS) at 1– understanding and delivery of STEM Comments are invited on: (a) Whether (800) 877–8339, which is accessible 24 teaching and learning. the proposed collection of information hours a day, 7 days a week, 365 days a is necessary for the proper performance year (including federal holidays). Method of Collection of the functions of the Agency, SUPPLEMENTARY INFORMATION: including whether the information shall Teachers who have registered to use have practical utility; (b) the accuracy of Proposed Project NSDL resources through Teachers’ the Agency’s estimate of the burden of ‘‘National STEM Digital Library/ Domain, an NSF-funded pathway, will the proposed collection of information; Distributed Learning: Phase 3 be recruited to complete the survey. One (c) ways to enhance the quality, utility, Evaluation.’’ hundred and eighty teachers will be and clarity of the information on The proposed project includes a recruited, with an estimated response respondents, including through the use survey of teachers’ use of the National rate of 70%. The survey will be of automated collection techniques or Science, Technology, Engineering, and administered online, although an option other forms of information technology; Mathematics (STEM) Digital Library/ for a paper version with a self-addressed and (d) ways to minimize the burden of Distributed Learning (NSDL) Program stamped envelope will be provided. The the collection of information on plus antecedents and consequences of survey consists of 26 questions in the respondents, including through the use NSDL use. NSDL is the NSF’s online following categories: (1) Background of automated collection techniques or library of collections and other questions regarding use of NSDL other forms of information technology. resources (e.g., tools, services) for STEM resources; (2) frequency of use; (3) types DATES: Written comments should be education and research. The teacher of use; (4) perceived benefits for received by February 13, 2012 to be survey is part of a Phase 3 evaluation teaching and learning; (5) ease of use; assured of consideration. Comments that builds upon the findings of earlier (6) facilitating conditions; (7) self- received after that date will be phases of a multi-stage program efficacy for STEM teaching and considered to the extent practicable. evaluation that relied chiefly on existing learning; (8) social influence; (9) ADDRESSES: Written comments data. The survey will be used to personal innovativeness with regarding the information collection and understand the frequency with which technology; and (10) demographic requests for copies of the proposed teachers use NSDL resources, the ways characteristics. Response options for the information collection request should be in which they use these resources for vast majority of questions in all addressed to Suzanne Plimpton, Reports STEM teaching, and antecedents of or categories are close-ended (e.g., 7-point Clearance Officer, National Science barriers to such use. Results will be scales ranging from strongly disagree to Foundation, 4201 Wilson Blvd., Rm. used to identify important lessons strongly agree). Participants will be 295, Arlington, VA 22230, or by email learned about the NSDL program from given a thank-you gift consisting of a to [email protected]. teachers, who are the ultimate consumer $20 gift certificate to Amazon.com. FOR FURTHER INFORMATION CONTACT: Ms. of program resources. Currently, there is Suzanne H. Plimpton, Reports Clearance little or no systematic information about Estimated Annual Respondent Burden

EXHIBIT 1—ESTIMATED ANNUALIZED BURDEN HOURS

Number of Form name Number of responses per Hours per Total respondents respondent response burden hours

Teacher Survey ...... 180 1 .33 60

Total ...... 180 1 .33 60

EXHIBIT 2—ESTIMATED ANNUALIZED COST BURDEN

Average Form name Number of Total hourly wage Total respondents burden hours rate* cost burden

Teacher Survey ...... 180 60 $26.44 $1586.40

Total ...... 180 60 26.44 1586.40 Based upon the mean national hourly wages across elementary, middle, and secondary school teachers, excluding special education and ca- reer/technical education, from Occupational Employment and Wages News Release, U.S. Department of Labor, Bureau of Labor Statistics, May 17, 2011. Available at http://www.bls.gov/news.release/ocwage.htm.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77854 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Estimated Annual Costs to the Federal Officer, National Science Foundation, Centers will be required to submit Government 4201 Wilson Boulevard, Suite 295, annual reports on progress and plans, The estimated total cost for this effort Arlington, Virginia 22230; telephone which will be used as a basis for is $109,000; this cost includes: research (703) 292–7556; or send email to performance review and determining staff involved in survey design, piloting, [email protected]. Individuals who use the level of continued funding. To implementation, analysis, and writing. a telecommunications device for the support this review and the Additional costs included in this deaf (TDD) may call the Federal management of a Center, ERCs will also amount involve staff time for project Information Relay Service (FIRS) at 1– be required to submit management and management and administration, one- (800) 877–8339, which is accessible 24 performance indicators annually to NSF year licenses for survey and analytical hours a day, 7 days a week, 365 days a via a data collection Web site that is software, respondent payments (gift year (including federal holidays). managed by a technical assistance certificates), and a letter agreement with SUPPLEMENTARY INFORMATION: contractor. These indicators are both Teachers’ Domain to pull the sample Title of Collection: Grantee Reporting quantitative and descriptive and may and contact potential participants. Requirements for the Engineering include, for example, the characteristics of center personnel and students; Dated: December 8, 2011. Research Centers (ERCs). OMB Number: 3145–NEW. sources of cash and in-kind support; Suzanne Plimpton, expenditures by operational component; Expiration Date of Approval: Not Reports Clearance Officer, National Science characteristics of industrial and/or other applicable. Foundation. sector participation; research activities; [FR Doc. 2011–31994 Filed 12–13–11; 8:45 am] Type of Request: Intent to seek education activities; knowledge transfer approval to establish an information BILLING CODE 7555–01–P activities; patents, licenses; collection. publications; degrees granted to Abstract students involved in Center activities; NATIONAL SCIENCE FOUNDATION descriptions of significant advances and Proposed Project other outcomes of the ERC effort. Such Notice of Intent To Seek Approval To reporting requirements will be included Establish an Information Collection The Engineering Research Centers (ERC) program supports an integrated, in the cooperative agreement which is AGENCY: National Science Foundation. interdisciplinary research environment binding between the academic ACTION: Notice and request for to advance fundamental engineering institution and the NSF. comments. knowledge and engineered systems; Each Center’s annual report will educate a globally competitive and address the following categories of SUMMARY: Under the Paperwork diverse engineering workforce from K– activities: (1) Vision and impact, (2) Reduction Act of 1995, Public Law 104– 12 on; and join academe and industry in strategic plan, (3) research program, (4) 13 (44 U.S.C. 3501 et seq.), and as part partnership to achieve these goals. ERCs innovation ecosystem and industrial of its continuing effort to reduce conduct world-class research through collaboration, (5) education, (6) paperwork and respondent burden, the partnerships of academic institutions, infrastructure (leadership, management, National Science Foundation (NSF) is national laboratories, industrial facilities, diversity) and (7) budget inviting the general public or other organizations, and/or other public/ issues. Federal agencies to comment on this private entities. New knowledge thus For each of the categories the report proposed continuing information created is meaningfully linked to will describe overall objectives for the collection. The NSF will publish society. year, progress toward center goals, periodic summaries of the proposed ERCs conduct world-class research problems the Center has encountered in projects. with an engineered systems perspective making progress towards goals and how Comments: Comments are invited on: that integrates materials, devices, they were overcome, plans for the future (a) Whether the proposed collection of processes, components, control and anticipated research and other information is necessary for the proper algorithms and/or other enabling barriers to overcome in the following performance of the functions of the elements to perform a well-defined year, and specific outputs and Foundation, including whether the function. These systems provide a outcomes. information will have practical utility; unique academic research and Use of the Information: The data (b) the accuracy of the Foundation’s education experience that involves collected will be used for NSF internal estimate of the burden of the proposed integrative complexity and reports, historical data, performance collection of information; (c) ways to technological realization. The review by peer site visit teams, program enhance the quality, utility, and clarity complexity of the systems perspective level studies and evaluations, and for of the information to be collected; and includes the factors associated with its securing future funding for continued (d) ways to minimize the burden of the use in industry, society/environment, or ERC program maintenance and growth. collection of information on those who the human body. Estimate of Burden: 150 hours per are to respond, including through the ERCs enable and foster excellent use of automated collection techniques center for 17 centers for a total of 2550 education, integrate research and hours plus . or other forms of information education, speed knowledge/technology technology. Respondents: Academic institutions. transfer through partnerships between Estimated Number of Responses per DATES: Written comments on this notice academe and industry, and prepare a Report: One from each of the 17 ERCs. must be received by February 13, 2012, more competitive future workforce. to be assured consideration. Comments ERCs capitalize on diversity through Dated: December 9, 2011. received after that date will be participation in center activities and Suzanne H. Plimpton, considered to the extent practicable. demonstrate leadership in the Reports Clearance Officer, National Science Send comments to address below. involvement of groups Foundation. FOR FURTHER INFORMATION CONTACT: Ms. underrepresented in science and [FR Doc. 2011–32035 Filed 12–13–11; 8:45 am] Suzanne H. Plimpton, Reports Clearance engineering. BILLING CODE 7555–01–P

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00089 Fmt 4703 Sfmt 9990 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77855

NUCLEAR REGULATORY Federal and State Materials and Atomic Energy Agency (per NRC COMMISSION Environmental Management Programs, Management Directive 5.12), and there U.S. Nuclear Regulatory Commission, are unique or unusual aspects of the [NRC–2010–0294] Washington, DC 20555–0001, telephone licensee’s performance that warrant Criteria for Identifying Material (301) 415–6272, email: additional NRC oversight (e.g., a Licensees for the U. S. Nuclear [email protected]. significant event, which requires an Regulatory Commission’s Agency SUPPLEMENTARY INFORMATION incident investigation team (IIT) or Action Review Meeting augmented inspection team (AIT)); or Background (3) Performance Trend—Licensee has AGENCY: Nuclear Regulatory In 2002, the NRC developed a process multiple and/or repetitive significant Commission. for providing information to the program issues identified over more ACTION: Notice of Availability. Commission on significant nuclear than one inspection, or inspection materials issues and adverse licensee period, and the issues are supported by SUMMARY: The U.S. Nuclear Regulatory performance. This process was severity level I, II, or III violation, as Commission (NRC) is announcing the discussed in SECY–02–0216, ‘‘Proposed described in the NRC Enforcement completion and availability of the new Process for Providing Information on Policy (including equivalent violations criteria for identifying nuclear material Significant Nuclear Materials Issues and dispositioned by Alternative Dispute licensees for discussion at the Agency Adverse Licensee Performance,’’ dated Resolution). Also, there are unique or Action Review Meeting (AARM). The December 11, 2002. As part of this unusual aspects of the licensee’s criteria may be found in SECY–11–0132 process, the NRC developed criteria to performance that warrant additional (NRC’s Agencywide Documents Access determine nuclear material licensees NRC oversight (e.g., oversight panel and Management System (ADAMS) with significant performance problems formed for order implementation); or Accession Number: ML112280111) or in that would be discussed at the AARM. (4) Identified for Discussion at the supplementary information below. In 2008, the NRC revised the criteria to Previous AARM—Licensee corrective The AARM is an agency meeting that provide additional clarification actions did not address or were allows senior NRC managers (1) to regarding the criteria and to incorporate ineffective in correcting the underlying review the appropriateness of agency NRC’s most recent policies and issues that were previously discussed at actions that have been taken for those procedures. the AARM. nuclear power plants with significant The agency currently identifies The NRC’s strategic plan (NUREG– performance problems as determined by nuclear material licensees, including 1614) and the referenced management the reactor oversight process (ROP) fuel cycle and Agreement State directives and enforcement policy are action matrix, (2) to review the licensees, for AARM discussion based available on NRC’s public document appropriateness of agency actions for on operating performance, inspection collections Web page at http:// those nuclear material licensees, results, and the severity of problems www.nrc.gov/reading-rm/doc- including fuel cycle facilities, with related to safety performance. The collections/. significant safety or security issues, (3) agency will continue to identify to ensure that coordinated courses of Public Comments on the Proposed material licensees based on these same Criteria action have been developed and principles; however, one additional implemented for licensees of concern, element (i.e., criterion), has been added The proposed criteria for identifying (4) to review results of the staff’s that focuses on those material licensees nuclear material licensees with assessment of ROP effectiveness, previously discussed at the AARM who significant performance issues were including a review of approved did not address or were ineffective in published for comment on September 9, deviations from the action matrix, and correcting their underlying issues. 2010 (75 FR 54917). The comment (5) to ensure that trends in industry and period ended on October 25, 2010. The licensee performance are recognized Discussion NRC received no public comments on and appropriately addressed. Criteria for Identifying Nuclear Material the proposed criteria. ADDRESSES: A copy of SECY–11–0132 is Licensees for Discussion at the AARM Dated at Rockville, Maryland, this 5th day available for inspection and/or copying The new criteria for identifying of December 2011. for a fee in the NRC’s Public Document nuclear material licensees for discussion Mark A. Satorius, Room (PDR), 11555 Rockville Pike, at the AARM may be found in SECY– Director, Office of Federal and State Materials Rockville, Maryland 20874. Publicly 11–0132 (ADAMS Accession Number: and Environmental Management Programs. available documents created or received ML112280111) and is provided below. [FR Doc. 2011–32065 Filed 12–13–11; 8:45 am] at the NRC are accessible electronically (1) Strategic Plan—Licensee has an BILLING CODE 7590–01–P through ADAMS in the NRC Library at event that results in the failure to meet http://www.nrc.gov/reading-rm/ a strategic outcome for safety and adams.html. From this page, the public security in the NRC Strategic Plan NUCLEAR REGULATORY can gain entry into ADAMS, which (NUREG–1614); COMMISSION provides text and image files of NRC’s (2) Significant Issue or Event— public documents. If you do not have Licensee has an issue or event that [Docket No. 52–033; NRC–2008–0566] access to ADAMS or if there are results in an abnormal occurrence report Detroit Edison Company; Notice of problems in accessing the documents to Congress (per NRC Management located in ADAMS, contact the NRC’s Availability of Errata Sheet for the Draft Directive 8.1), or a severity level I or II Environmental Impact Statement for a PDR reference staff at 1–(800) 397–4209, violation, as described in the NRC (301) 415–4737, or by email to Combined License for Unit 3 at the Enforcement Policy (including Enrico Fermi Atomic Power Plant Site [email protected]. equivalent violations dispositioned by FOR FURTHER INFORMATION CONTACT: Alternative Dispute Resolution), or a Notice is hereby given that the U.S. Duane White, Division of Materials level 3 or higher International Nuclear Nuclear Regulatory Commission (NRC) Safety and State Agreements, Office of Event Scale Report to the International and the U.S. Army Corps of Engineers,

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77856 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Detroit District, is providing an errata was published in the Federal Register sheet for NUREG–2105, Volume 1. The sheet for NUREG–2105, ‘‘Draft on October 28, 2011 (76 FR 66998). The content of the errata sheet is provided Environmental Impact Statement (DEIS) U.S. Environmental Protection Agency’s below: for the Combined License (COL) for NOA was also published on October 28, In DEIS Chapter 8, Page 8–23, after Enrico Fermi Unit 3.’’ The site is located 2011 (76 FR 66925). the first full paragraph (i.e., after line in Monroe County, Michigan. An NRC The purpose of this notice is to inform 15), insert the following table: notice of availability (NOA) of the DEIS the public of the contents of the errata

TABLE 8–8—SUMMARY OF MPSC PLAN 2025 NEED FOR POWER IN THE SOUTHEAST MICHIGAN AREA

2025 Component (MW)

A ...... Total Peak Summer Demand ...... 16,253 B ...... Baseline Supply of Electricity (2005 data) ...... 12,922 C ...... Loss in Generating Capacity Due to Projected Retirements ...... (2039) D ...... Net Supply of Electricity in 2025 (B + C) ...... 10,883 E ...... Surplus (Deficit) in 2025 Generating Capacity Needs (D ¥ A) ...... (5370) F ...... Fermi 3 Net Generating Capacity ...... 1535 G ...... Surplus (Deficit) in 2025 Generating Capacity with Fermi 3 (E + F) ...... (3835) Source: MPSC Plan Appendix—Volume II (MPSC 2007).

For Further Information Contact: Mr. FURTHER INFORMATION CONTACT section In support of its Notice, the Postal Bruce Olson, Project manager, as the source for case-related Service filed four attachments as Environmental Projects Branch 2, information for advice on alternatives to follows: Division of New Reactor Licensing, electronic filing. • Attachment 1—an application for non-public treatment of materials to Office of New Reactors, U.S. Nuclear FOR FURTHER INFORMATION CONTACT: maintain redacted rates and supporting Regulatory Commission, Washington, Stephen L. Sharfman, General Counsel, documents under seal; DC 20555–0001. Telephone: (301) 415– at (202) 789–6820 (case-related 3731; email: [email protected]. • Attachment 2—a redacted copy of information) or [email protected] Governors’ Decision No. 09–15 which Dated at Rockville, Maryland, this 7th day (electronic filing assistance). of December, 2011. establishes prices and classifications for SUPPLEMENTARY INFORMATION: Inbound Air Parcel Post at UPU Rates, For the Nuclear Regulatory Commission. proposed Mail Classification Schedule Table of Contents David Matthews, language which includes a description Director, Division of New Reactor Licensing, I. Introduction of Inbound Air Parcel Post at UPU Office of New Reactors. II. Background Rates, certification of prices in [FR Doc. 2011–32070 Filed 12–13–11; 8:45 am] III. Notice of Filing conformity with 39 U.S.C. 3633, an BILLING CODE 7590–01–P IV. Ordering Paragraphs analysis of the procedures for setting rates, and certification of the Governors’ I. Introduction vote; • POSTAL REGULATORY COMMISSION On December 6, 2011, the Postal Attachment 3—a redacted version Service filed a notice announcing of the new rates; and [Docket No. CP2012–3; Order No. 1033] • changes in rates not of general Attachment 4—a certified statement applicability for Inbound Air Parcel Post required by 39 CFR 3015.5(c)(2) for International Mail Price Change for Inbound Air Parcel Post at UPU rates. Inbound Air Parcel Post at Universal Postal Union (UPU) rates with an intended effective date of The Postal Service also provided a AGENCY: Postal Regulatory Commission. January 1, 2012.1 The Notice redacted version of the supporting financial documentation as a separate ACTION: Notice. incorporates by reference the explanation of Inbound Air Parcel Post Excel file. SUMMARY: The Commission is noticing a at UPU Rates and the mechanism for II. Background recently-filed Postal Service request to setting rates contained in its request and The Notice states that Governors’ change rates for Inbound Air Parcel Post supporting documentation filed in at Universal Postal Union (UPU) rates. Decision No. 09–15 established prices Docket Nos. MC2010–11 and CP2010– and classifications not of general This notice addresses procedural steps 11.2 Notice at 2. associated with this filing. applicability for Inbound Air Parcel Post at UPU Rates on November 16, 2009. Id. DATES: Comments are due: December 1 Notice of the United States Postal Service of at 1. Air parcels comprise inbound 16, 2011, 4:30 p.m. Eastern Time. Filing Changes in Rates Not of General Applicability and Application for Non-Public parcels eligible to receive transportation ADDRESSES: Submit comments Treatment of Materials Filed Under Seal, December by air rather than surface. Id., electronically by accessing the ‘‘Filing 6, 2011 (Notice). Attachment 2 at 1. The rates authorized Online’’ link in the banner at the top of 2 See Docket Nos. MC2010–11 and CP2010–11, by Governors’ Decision No. 09–15 when Request of the United States Postal Service to Add the Commission’s Web site (http://www. Inbound Air Parcel Post at Universal Postal Union there is no contractual relationship with prc.gov) or by directly accessing the (UPU) Rates to the Competitive Products List, the tendering postal operator are the Commission’s Filing Online system at Notice of Establishment of Prices and highest possible inward land rates that http://www.prc.gov/prc-pages/filing- Classifications Not of General Applicability for the United States is eligible for under Inbound Air Parcel Post at UPU Rates Established online/login.aspx. Persons who cannot in Governors’ Decision No. 09–15, and Application the parcel post regulations. Id. at 2. In submit their views electronically should for Non-Public Treatment of Materials Filed Under Order No. 362, the Commission contact the person identified in the FOR Seal, November 17, 2009 (Request). approved the addition of Inbound Air

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77857

Parcel Post at UPU Rates to the rates for inbound air parcels by Act of 1940 (‘‘Act’’) for an exemption competitive product list.3 reference to the Universal Postal from rule 12d1–2(a) under the Act. The Postal Service states in its Notice Convention. Id. that the rates in its filing comport with In its Notice the Postal Service SUMMARY: Summary of Application: Governors’ Decision No. 09–15 and are maintains that certain portions of the Applicants request an order to permit ‘‘the highest possible inward land rates Governors’ Decision, the new rates, and open-end management investment for which the Postal Service was eligible related financial documentation should companies relying on rule 12d1–2 under based on inflation increases and other remain under seal. Notice at 3, the Act to invest in certain financial factors.’’ Notice at 2–3. Attachment 1. It also asserts that its instruments. In the Postal Service’s Request in filing demonstrates compliance with 39 APPLICANTS: Seasons Series Trust Docket Nos. MC2010–11 and CP2010– U.S.C. 3633. Id. at 3. (‘‘Seasons’’), SunAmerica Series Trust 11, it explains the process for (‘‘Series Trust’’), VALIC Company II determining Inbound Air Parcel Post at III. Notice of Filing (‘‘VALIC II’’), SunAmerica Series, Inc. UPU Rates. In its Request, the Postal The Commission establishes Docket (‘‘SunAmerica Series’’ and collectively Service indicates that the United States No. CP2012–3 for consideration of with Seasons, Series Trust and VALIC receives both air and surface parcels matters raised by the Postal Service’s II, the ‘‘Companies’’), SunAmerica Asset from foreign postal administrations Notice. Management Corp. (‘‘SAAMCo’’), The which compensate the Postal Service for The Commission appoints James F. Variable Annuity Life Insurance delivery of these parcels in the United Callow as Public Representative in this Company (‘‘VALIC’’), SunAmerica States. Request at 2. It maintains that it proceeding. Capital Services, Inc. (‘‘SACS’’) and has negotiated separate agreements for Comments. Interested persons may American General Distributors, Inc. parcel rates with certain foreign posts, submit comments on whether the Postal (‘‘AGDI’’ and collectively with the but most compensate it at the United Service’s filings in the captioned docket Companies, SAAMCo, VALIC and States default rates for inbound parcel are consistent with the policies of 39 SACS, the ‘‘Applicants’’). delivery. Id. Payments between postal U.S.C. 3632 or 3633, or 39 CFR part DATES: Filing Date: The application was administrations for handling and 3015. Comments are due no later than filed on August 31, 2011. delivering parcel post are referred to as December 16, 2011. The public portions HEARING OR NOTIFICATION OF HEARING: An inward land rates. The Postal Service of these filings can be accessed via the order granting the application will be notes that inward land rates are set Commission’s Web site (http://www.prc. issued unless the Commission orders a according to formulas in the UPU Parcel gov). hearing. Interested persons may request Post Regulations which constitute a hearing by writing to the international law. Id. More specifically, IV. Ordering Paragraphs Commission’s Secretary and serving the UPU Postal Operations Council It is ordered: applicants with a copy of the request, 4 establishes inward land rates. Such 1. The Commission establishes Docket personally or by mail. Hearing requests rates are based on a percentage of each No. CP2012–3 for consideration of the should be received by the Commission member’s inward land rate in 2004. Id. matters raised in this docket. by 5:30 p.m. on January 3, 2012 and at 3. UPU members may qualify for 2. Comments by interested persons in should be accompanied by proof of percentage ‘‘bonuses’’ to their base rate this proceeding are due no later than service on applicants, in the form of an based upon their provision of certain December 16, 2011. affidavit or, for lawyers, a certificate of 5 value-added services. Id. The Postal 3. Pursuant to 39 U.S.C. 505, James F. service. Hearing requests should state Service states it is responsible for Callow is appointed to serve as officer the nature of the writer’s interest, the gathering information that the UPU of the Commission (Public reason for the request, and the issues Postal Operations Council uses to Representative) to represent the interest contested. Persons who wish to be calculate the rates, including of the general public in this proceeding. notified of a hearing may request completion of a questionnaire on service 4. The Secretary shall arrange for notification by writing to the bonus eligibility and submission of publication of this order in the Federal Commission’s Secretary. annual inflation information from the Register. ADDRESSES: Secretary, Securities and Consumer Price Index for All Urban By the Commission. Exchange Commission, 100 F Street NE., Consumers. Id. Based on this and Washington, DC 20549–1090; similar information from the member Shoshana M. Grove, Secretary. Applicants: Seasons and Series Trust, posts, the UPU International Bureau One SunAmerica Center, Los Angeles, [FR Doc. 2011–32046 Filed 12–13–11; 8:45 am] publishes an annual notice establishing CA 90067; VALIC II, VALIC, and AGDI, the postal administration’s parcel rates BILLING CODE 7710–FW–P 2929 Allen Parkway, Houston, TX for the following year. Id. 77019; SunAmerica Series, SAAMCo, The Postal Service states that because and SACS, Harborside Financial Center, of the unique mechanism for setting SECURITIES AND EXCHANGE 3200 Plaza 5, Jersey City, NJ 07311. inward land rates, it chose to establish COMMISSION FOR FURTHER INFORMATION CONTACT: Jill Ehrlich, Senior Counsel, at (202) 551– 3 See Docket Nos. MC2010–11 and CP2010–11, [Investment Company Act Release No. Order Adding Inbound Air Parcel Post at UPU Rates 29879; File No. 812–13952] 6819, or Mary Kay Frech, Branch Chief, to Competitive Product List, December 15, 2009 at (202) 551–6821 (Division of (Order No. 362). Investment Management, Office of 4 Seasons Series Trust, et al.; Notice of The UPU Postal Operations Council is a Investment Company Regulation). designated body of the UPU which is responsible Application for rate setting. SUPPLEMENTARY INFORMATION: The 5 The Postal Service states that services such as December 8, 2011. following is a summary of the ‘‘track and trace, home delivery, published delivery AGENCY: Securities and Exchange application. The complete application standards, and use of a common inquiry system’’ Commission (‘‘Commission’’). qualify UPU members for bonuses. Id. Members may be obtained via the Commission’s may also seek an inflation-related adjustment to the ACTION: Notice of an application under Web site by searching for the file base rate which is capped at 5 percent per year. section 6(c) of the Investment Company number, or an applicant using the

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77858 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Company name box, at http:// Applicants also request that the order from acquiring securities of registered www.sec.gov/search/search.htm or by exempt any entity controlling, open-end investment companies or calling (202) 551–8090. controlled by or under common control registered unit investment trusts in with SACS or AGDI that now or in the Applicants’ Representations reliance on section 12(d)(1)(F) or future acts as principal underwriter 12(d)(1)(G) of the Act. 1. Each of Seasons and Series Trust is with respect to the transactions 3. Rule 12d1–2 under the Act permits organized as a Massachusetts business described in the application. a registered open-end investment trust, VALIC II is organized as a 3. Consistent with its fiduciary company or a registered unit investment Delaware statutory trust, and obligations under the Act, each Fund of SunAmerica Series is organized as a Funds’ board of trustees/directors will trust that relies on section 12(d)(1)(G) of Maryland corporation. Each of the review the advisory fees charged by the the Act to acquire, in addition to Companies is registered under the Act Fund of Funds’ Adviser to ensure that securities issued by another registered as an open-end management investment they are based on services provided that investment company in the same group company. SAAMCo, a Delaware are in addition to, rather than of investment companies, government corporation, is an indirect, wholly duplicative of, services provided securities, and short-term paper: (i) owned subsidiary of American pursuant to the advisory agreement of Securities issued by an investment International Group, Inc. (‘‘AIG’’). any investment company in which the company that is not in the same group VALIC, a Texas corporation, is an Fund of Funds may invest. of investment companies, when the acquisition is in reliance on section indirect, wholly owned subsidiary of Applicants’ Legal Analysis AIG. Each of SAAMCo and VALIC is an 12(d)(1)(A) or 12(d)(1)(F) of the Act; (ii) investment adviser registered under the 1. Section 12(d)(1)(A) of the Act securities (other than securities issued Investment Advisers Act of 1940 provides that no registered investment by an investment company); and (iii) (‘‘Advisers Act’’). Either SAAMCo or company (‘‘acquiring company’’) may securities issued by a money market VALIC currently serves as investment acquire securities of another investment fund, when the investment is in reliance adviser to each existing Fund of Funds company (‘‘acquired company’’) if such on rule 12d1–1 under the Act. For the securities represent more than 3% of the (as defined below). SACS, a Delaware purposes of rule 12d1–2, ‘‘securities’’ acquired company’s outstanding voting corporation, is an indirect, wholly means any security as defined in section stock or more than 5% of the acquiring owned subsidiary of AIG. AGDI, a 2(a)(36) of the Act. company’s total assets, or if such Delaware corporation, is also an 4. Section 6(c) of the Act provides that indirect, wholly owned subsidiary of securities, together with the securities of the Commission may exempt any AIG. Each of SACS and AGDI is other investment companies, represent person, security, or transaction from any registered as a broker-dealer under the more than 10% of the acquiring provision of the Act, or from any rule Securities Exchange Act of 1934 company’s total assets. Section under the Act, if such exemption is (‘‘Exchange Act’’), and SACS, and in 12(d)(1)(B) of the Act provides that no certain cases AGDI, serve as the registered open-end investment necessary or appropriate in the public distributors for certain of the Funds of company may sell its securities to interest and consistent with the Funds. another investment company if the sale protection of investors and the purposes will cause the acquiring company to 2. Applicants request the exemption fairly intended by the policies and own more than 3% of the acquired to the extent necessary to permit any provisions of the Act. company’s voting stock, or cause more existing or future series of the 5. Applicants state that the Funds of than 10% of the acquired company’s Companies or any other existing or Funds will comply with rule 12d1–2 voting stock to be owned by investment future registered open-end management under the Act, but for the fact that the companies and companies controlled by investment company or series thereof Funds of Funds may invest a portion of them. that: (i) Is advised by SAAMCo or 2. Section 12(d)(1)(G) of the Act their assets in Other Investments. VALIC or an entity controlling, provides, in part, that section 12(d)(1) Applicants request an order under controlled by, or under common control will not apply to securities of an section 6(c) of the Act for an exemption with SAAMCo or VALIC (any such acquired company purchased by an from rule 12d1–2(a) to allow the Funds adviser, SAAMCo or VALIC, an acquiring company if: (i) The acquired of Funds to invest in Other Investments ‘‘Adviser’’); 1 (ii) invests in other company and acquiring company are while investing in Underlying Funds. registered open-end management part of the same group of investment Applicants assert that permitting the investment companies (‘‘Underlying companies; (ii) the acquiring company Funds of Funds to invest in Other Funds’’) in reliance on section holds only securities of acquired Investments as described in the 12(d)(1)(G) of the Act; and (iii) is also companies that are part of the same application would not raise any of the eligible to invest in securities (as group of investment companies, concerns that the requirements of defined in section 2(a)(36) of the Act) in government securities, and short-term section 12(d)(1) were designed to reliance on rule 12d1–2 under the Act paper; (iii) the aggregate sales loads and address. (each, a ‘‘Fund of Funds’’), to also distribution-related fees of the acquiring invest, to the extent consistent with its company and the acquired company are Applicants’ Condition investment objectives, policies, not excessive under rules adopted strategies and limitations, in financial Applicants agree that any order pursuant to section 22(b) or section granting the requested relief will be instruments which may not be securities 22(c) of the Act by a securities within the meaning of section 2(a)(36) of subject to the following condition: 2 association registered under section 15A the Act (‘‘Other Investments’’). of the Exchange Act or by the Applicants will comply with all Commission; and (iv) the acquired provisions of rule 12d1–2 under the Act, 1 Any other Adviser also will be registered under company has a policy that prohibits it except for paragraph (a)(2) to the extent the Advisers Act. that it restricts any Fund of Funds from 2 Every existing entity that currently intends to rely on the requested order is named as an future will do so only in accordance with the terms investing in Other Investments as Applicant. Any entity that relies on the order in the and condition in the Application. described in the application.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77859

For the Commission, by the Division of A. Self-Regulatory Organization’s Orders and Market Orders. Limit Order Investment Management, under delegated Statement of the Purpose of, and the executions in the Trading Halt Auction authority. Statutory Basis for, the Proposed Rule will continue to be free. Kevin M. O’Neill, Change Closing Auction—Securities $1.00 and Deputy Secretary. 1. Purpose Greater [FR Doc. 2011–32003 Filed 12–13–11; 8:45 am] BILLING CODE 8011–01–P The Exchange proposes to amend the The Fee Schedule currently provides Fee Schedule, as described below, and that a fee of $0.0010 per share is charged implement the fee changes on December for Market-On-Close (‘‘MOC’’) and SECURITIES AND EXCHANGE 1, 2011. Limit-On-Close (‘‘LOC’’) 7 Orders COMMISSION executed in the Closing Auction.8 The Auctions Exchange also currently charges this [Release No. 34–65906; File No. SR– Opening and Market Order Auctions— $0.0010 fee for Auction-Only Orders NYSEArca–2011–92] Securities $1.00 and Greater that are executed in the Closing Self-Regulatory Organizations; NYSE The Fee Schedule currently provides Auction, which are effectively Arca, Inc.; Notice of Filing and that a fee of $0.0005 per share is charged equivalent to a MOC Order or LOC Immediate Effectiveness of Proposed for orders executed in the Opening or Order, but does not charge for Market Rule Change Amending the NYSE Arca Market Order Auction.3 The order types Orders or Limit Orders that are executed Equities Schedule of Fees and that may execute in the Opening or in the Closing Auction. The Exchange proposes to amend the Fee Schedule to Charges for Exchange Services Market Order Auction are Limit Orders, provide that, in addition to MOC and Market Orders and Auction-Only LOC Orders, Auction-Only and Market December 7, 2011. Orders, which are Limit and Market Orders that are executed in the Closing Pursuant to Section 19(b)(1) of the Orders that are only to be executed Auction will be charged the $0.0010 fee. Securities Exchange Act of 1934 within an Auction.4 The Exchange 1 2 Limit Order executions in the Closing (‘‘Act’’) and Rule 19b–4 thereunder, currently charges the $0.0005 fee for an Auction will continue to be free. notice is hereby given that, on December Auction-Only Order but not a Limit or 1, 2011, NYSE Arca, Inc. (the Market Order executed in the Opening All Auctions—Securities Less Than ‘‘Exchange’’ or ‘‘NYSE Arca’’) filed with or Market Order Auction. The Exchange $1.00 the Securities and Exchange proposes to amend the Fee Schedule to Commission (‘‘Commission’’) the The Fee Schedule does not currently provide that during an Opening or provide for a fee for executions during proposed rule change as described in Market Order Auction, the $0.0005 per Items I, II, and III below, which Items auctions on the Exchange in securities share fee will apply to executions of 9 have been prepared by the Exchange. priced below $1.00. The Exchange Auction-Only Orders and Market proposes to amend the Fee Schedule to The Commission is publishing this Orders. Limit Order executions in the notice to solicit comments on the reflect that a fee of 0.1% of the total Opening or Market Order Auction will dollar value of the order will be charged proposed rule change from interested continue to be free.5 persons. for round lot and odd lot executions of Trading Halt Auction—Securities $1.00 securities priced below $1.00 that take I. Self-Regulatory Organization’s and Greater place during an Opening, Market Order, Statement of the Terms of Substance of Trading Halt or Closing Auction. The the Proposed Rule Change The Exchange does not currently charge a fee for executions of orders in 7 The Exchange proposes to amend the See NYSE Arca Equities Rule 7.31(dd) and (ee). Trading Halt Auctions.6 The Exchange MOC Orders are Market Orders and LOC Orders are NYSE Arca Equities Schedule of Fees proposes to amend the Fee Schedule to Limit Orders that are to be executed only during the and Charges for Exchange Services Closing Auction, except that the Exchange rejects provide that during a Trading Halt MOC and LOC Orders in securities for which the (‘‘Fee Schedule’’). The text of the Auction, a $0.0005 per share fee will proposed rule change is available at the Exchange is not the primary market or when the apply to the execution of Auction-Only auction is suspended pursuant to NYSE Arca Exchange, the Commission’s Public Equities Rule 7.35(g). 8 Reference Room, and http:// 3 This fee is currently referenced within the Tier The Closing Auction MOC and LOC fees are www.nyse.com. 1, Tier 2 and Basic Rates sections of the Fee currently referenced within the Tier 1, Tier 2 and Basic Rates sections of the Fee Schedule and will Schedule and will be amended, as discussed herein, be amended, as discussed herein, in each instance. II. Self-Regulatory Organization’s in each instance. Auctions are described under However, the Exchange notes that when it Statement of the Purpose of, and NYSE Arca Equities Rule 7.35. implemented the Closing Auction MOC and LOC 4 Statutory Basis for, the Proposed Rule See NYSE Arca Equities Rule 7.31(t). An fee in October 2009, it stated that the fee would Change Auction-Only order is executable during the next apply for all pricing levels, including tiered and auction following entry of the order. If the Auction- basic rate pricing, but inadvertently did not reflect In its filing with the Commission, the Only Order is not executed in the auction, the this particular fee for Tape A securities in the Basic self-regulatory organization included balance is cancelled. Auction-Only orders are only Rates section of the Fee Schedule. See Securities statements concerning the purpose of, available for auctions that take place on the Exchange Act Release No. 60834 (October 16, 2009), Exchange and are not routed to other exchanges. and basis for, the proposed rule change 74 FR 54612 (October 22, 2009) (SR–NYSEArca– 5 The Exchange also proposes to remove the text 2009–88). The Exchange notes that Closing and discussed any comments it received from Footnote 2 of the Fee Schedule that provides Auctions in Tape A securities are rarely conducted on the proposed rule change. The text that transaction fees do not apply to orders on the Exchange, if at all, but instead are conducted of those statements may be examined at executed in the Opening Auction and Market Order on the primary market for the particular security. the places specified in Item IV below. Auction. This text inadvertently was not removed The proposed rule change will correct this in 2010 when the Exchange implemented the inadvertent omission and ensure that the Fee The Exchange has prepared summaries, $0.0005 fee for orders executed in the Opening or Schedule will provide for the appropriate fee if a set forth in sections A, B, and C below, Market Order Auction. See Securities Exchange Act Closing Auction is conducted on the Exchange in of the most significant parts of such Release No. 63056 (October 6, 2010), 75 FR 63233 a Tape A security. statements. (October 14, 2010) (SR–NYSEArca–2010–87). 9 In limited circumstances the Exchange 6 As noted above for Opening and Market Order inadvertently has charged for executions during Auctions, the order types that may execute in a auctions on the Exchange in securities priced below 1 15 U.S.C. 78s(b)(1). Trading Halt Auction are Limit Orders, Market $1.00, but has since rebated ETP Holders for any 2 17 CFR 240.19b–4. Orders and Auction-Only Orders. such charges.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77860 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

proposed fee of 0.1% would be during Trading Halt Auctions, which C. Self-Regulatory Organization’s consistent with the fee that is currently are similar in process and function to Statement on Comments on the charged for round lot and odd lot Opening and Market Order Auctions. Proposed Rule Change Received From executions of securities priced below The Exchange believes that it is Members, Participants, or Others $1.00 that take place outside of an appropriate to exclude Limit Orders No written comments were solicited auction. from such fees because Limit Orders or received with respect to the proposed Additionally, the text of Footnote 3 of that are available to execute at any time rule change. the Fee Schedule states that rebates will during the trading day contribute not be paid for executions in securities valuable price discovery information to III. Date of Effectiveness of the priced under $1.00. The Exchange Proposed Rule Change and Timing for the market for securities priced at $1.00 believes that this text is more Commission Action appropriate within Footnote 5 of the Fee and above, which are more actively The foregoing rule change is effective Schedule because it would be located traded, and as such the Exchange upon filing pursuant to Section closer to the section of the Fee Schedule wishes to encourage the submission of 19(b)(3)(A) 16 of the Act and describing fees for securities priced such Limit Orders, which will benefit subparagraph (f)(2) of Rule 19b–4 17 below $1.00 per share. Accordingly, the all market participants. thereunder, because it establishes a due, Exchange proposes to re-locate this text The Exchange believes that it is fee, or other charge imposed by the from Footnote 3 to Footnote 5 and equitable and reasonable to charge the NYSE Arca. reflect Footnote 3 as ‘‘Reserved’’ for same round and odd lot execution fees possible use at a later time. At any time within 60 days of the for securities priced below $1.00, filing of such proposed rule change, the Primary Sweep Orders whether inside or outside the auction. Commission summarily may Because such securities are more thinly The Fee Schedule currently provides temporarily suspend such rule change if for a fee of $0.0021 per share for traded, the Exchange does not believe it appears to the Commission that such Primary Sweep Orders (‘‘PSOs’’) 10 in that differential pricing for Limit Orders action is necessary or appropriate in the Tape A securities that are routed outside would have a significant impact on the public interest, for the protection of the Book to the New York Stock number of such orders submitted, and investors, or otherwise in furtherance of Exchange (‘‘NYSE’’). The Exchange as such proposes to charge all orders the the purposes of the Act. same fees. proposes to amend the Fee Schedule to IV. Solicitation of Comments reflect that the $0.0021 per share fee The Exchange believes that it is Interested persons are invited to will only be applicable to PSOs that equitable and reasonable to impose the submit written data, views, and remove liquidity from the NYSE and $0.0021 per share fee for PSOs that that a PSO that provides liquidity to the arguments concerning the foregoing, remove liquidity from the NYSE and to including whether the proposed rule NYSE will not be charged a fee or not charge a fee or provide a credit to 11 change is consistent with the Act. provided a credit. PSOs that provides liquidity because The Exchange proposes to implement Comments may be submitted by any of PSOs are designed to remove liquidity all of the changes discussed herein on the following methods: December 1, 2011. and are not designed to provide liquidity.14 An ETP Holder that intends Electronic Comments 2. Statutory Basis to provide liquidity in a Tape A security • Use the Commission’s Internet The Exchange believes that the should instead utilize the PO+ order comment form (http://www.sec.gov/ proposed rule change is consistent with type, which receives a credit of $0.0015 rules/sro.shtml); or Section 6(b) of the Securities Exchange per share when providing liquidity to • Send an email to rule- Act of 1934 (the ‘‘Act’’),12 in general, the NYSE.15 [email protected]. Please include File 13 and Section 6(b)(4) of the Act, in The proposed rule change will also Number SR–NYSEArca–2011–92 on the particular, because it is designed to remove obsolete text that does not subject line. provide for the equitable allocation of belong in the Fee Schedule and move Paper Comments reasonable dues, fees, and other charges certain text to a more appropriate among its members and other persons • Send paper comments in triplicate location. using its facilities. Specifically, the to Elizabeth M. Murphy, Secretary, Exchange believes that the proposed B. Self-Regulatory Organization’s Securities and Exchange Commission, rule change will add greater specificity Statement on Burden on Competition 100 F Street NE., Washington, DC to the Fee Schedule for securities priced 20549–1090. at $1.00 or more by identifying the The Exchange does not believe that All submissions should refer to File particular types of orders that will be the proposed rule change will impose Number SR–NYSEArca–2011–92. This charged a fee during auctions and those any burden on competition that is not file number should be included on the that will not be charged a fee. This will necessary or appropriate in furtherance subject line if email is used. To help the include fees applicable to executions of the purposes of the Act. Commission process and review your comments more efficiently, please use 10 See NYSE Arca Equities Rule 7.31(kk). A PSO only one method. The Commission will is a Primary Only (‘‘PO’’) Order that initially sweeps the Exchange’s Book before being routed to post all comments on the Commission’s the security’s primary market. Internet Web site (http://www.sec.gov/ 14 See Securities Exchange Act Release No. 55896 11 In limited circumstances where a PSO in a rules/sro.shtml). Copies of the (June 11, 2007), 72 FR 33795 (June 19, 2007) (SR– Tape A security is routed to the NYSE and provides submission, all subsequent liquidity to the NYSE, the Exchange has provided NYSEArca–2007–50). the ETP Holder that submitted the PSO with a 15 See NYSE Arca Equities Rule 7.31(x)(3). A PO+ amendments, all written statements credit of $0.0015, which corresponds to the credit Order is a PO Order entered for participation in the with respect to the proposed rule applicable on the NYSE. primary market, other than for participation in the 12 15 U.S.C. 78f(b). primary market opening or primary market re- 16 15 U.S.C. 78s(b)(3)(A). 13 15 U.S.C. 78f(b)(4). opening. 17 17 CFR 240.19b–4(f)(2).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77861

change that are filed with the proposal. This order approves the occurring on a Tuesday, Wednesday or Commission, and all written proposal. Thursday. The GSD calculates the TMPG fail communications relating to the charge from the date the fail occurs to the II. Description proposed rule change between the next valid FICC business date. The TMPG fail Commission and any person, other than The purpose of this rule change is to charge is assessed for two days; the day the those that may be withheld from the expand the applicability of the fails fail occurs and the date of the holiday. public in accordance with the charge to Agency debt securities Example 3: A settlement obligation fails on provisions of 5 U.S.C. 552, will be transactions. The Treasury Markets Friday and the following Monday is not a available for Web site viewing and Practices Group (the ‘‘TMPG’’), a group holiday. The GSD calculates the TMPG fail printing in the Commission’s Public of market participants active in the charge from the date the fail occurs to the Reference Room, 100 F Street NE., Treasury securities market sponsored by next valid FICC business date. The TMPG fail Washington, DC 20549, on official the Federal Reserve Bank of New York charge is assessed for three days; Friday, business days between the hours of 10 (the ‘‘FRBNY’’), has been addressing the Saturday and Sunday. a.m. and 3 p.m. Copies of the filing also persistent settlement fails in Agency debt securities transactions that have FICC’s Board of Directors (or will be available for inspection and appropriate Committee thereof) will copying at the principal office of the arisen, in part, due to low interest rates. retain the right to revoke application of Exchange. All comments received will To encourage market participants to the proposed charges if industry events be posted without change; the resolve fails promptly, the TMPG or practices warrant such revocation. Commission does not edit personal recommended expanding the identifying information from applicability of the fails charge (which The expansion of the fails charge submissions. You should submit only currently applies to Treasury securities trading practice to the Agency debt information that you wish to make transactions) to Agency debt with the market requires that Rule 11 (Netting available publicly. All submissions objective of reducing the incidence of System), Section 14 (Fails Charge) of the should refer to File Number SR– delivery failures and supporting GSD rulebook be amended to make such liquidity in this market. NYSEArca–2011–92 and should be rule applicable to debentures issued by The TMPG had previously submitted on or before January 4, 2012. recommended a charge for fails on any of Fannie Mae, Freddie Mac or the For the Commission, by the Division of Treasury securities, which the Federal Home Loan Banks. The current Trading and Markets, pursuant to delegated Government Securities Division (the GSD rule states that the fails charge authority.18 ‘‘GSD’’) implemented after Commission shall be the product of the (i) funds Kevin M. O’Neill, approval.3 At that time, the TMPG associated with a failed position and (ii) Deputy Secretary. recommendation did not extend to 3 percent per annum minus the target [FR Doc. 2011–31968 Filed 12–13–11; 8:45 am] Agency securities and, therefore, the fed funds rate that is effective at 5 p.m. EST on the business day prior to the BILLING CODE 8011–01–P GSD’s 2009 rule filing did not cover Agency debt. However, the TMPG originally scheduled settlement date, recently has expanded its capped at 3 percent per annum. FICC is SECURITIES AND EXCHANGE recommendation to cover certain proposing to restate the formula to make COMMISSION Agency securities and, therefore, the it clearer by amending section (ii) of the GSD is proposing to apply the existing formula to read ‘‘the greater of (a) 0 [Release No. 34–65910; File No. SR–FICC– fails charge regime to Agency debt percent or (b) 3 percent per annum 2011–08] transactions as recommended by the minus the fed funds target rate . * * *’’ TMPG. Specifically, transactions in This change is not meant to affect the Self-Regulatory Organizations; Fixed debentures issued by Fannie Mae, result of the formula in any way but Income Clearing Corporation; Order Freddie Mac, and the Federal Home rather is a more precise way of stating Approving Proposed Rule Change To Loan Banks now will be subject to this the formula. charge. The proposed fails charge for Expand the Applicability of the Fails The proposed rule change makes clear Charge to Agency Debt Securities Agencies will be the same as that that FICC will not guaranty fails charge Transactions currently in place for Treasuries and is equal to the greater of: (a) 0 percent or proceeds in the event of a default (i.e., December 8, 2011. (b) 3 percent per annum minus the if a defaulting member does not pay its federal funds target rate. The charge will fail charge, members due to receive fails I. Introduction accrue each calendar day a fail is charge proceeds will have those On October 20, 2011, the Fixed outstanding. proceeds reduced pro-rata by the Income Clearing Corporation (‘‘FICC’’) The following examples illustrate the defaulting member’s unpaid amount). manner in which the proposed fails filed with the Securities and Exchange Timing of Implementation Commission (‘‘Commission’’) the charge will apply: proposed rule change SR–FICC–2011– Example 1: A settlement obligation fails The fails charges will apply to 08 pursuant to Section 19(b)(1) of the and the next calendar date is a valid FICC transactions in Agency debentures Securities Exchange Act of 1934 business date. The GSD calculates the TMPG entered into on or after February 1, (‘‘Act’’).1 The proposed rule change was fail charge from the date the fail occurs to the next valid FICC business date. As the next 2012, as well as to transactions that published for comment in the Federal were entered into, but remain unsettled 2 valid business date is the next calendar date, Register on November 1, 2011. No the member’s credit/debit resulting from the as of, February 1, 2012. For transactions comment letters were received on the TMPG fail charge is assessed for one day. entered into prior to, and unsettled as Example 2: A settlement obligation fails of, February 1, 2012, the fails charge 18 17 CFR 200.30–3(a)(12). and the next calendar date is a holiday will begin accruing on the later of 1 15 U.S.C. 78s(b)(1). February 1, 2012, or the contractual 2 Securities Exchange Act Release No. 34–65632 3 See Securities Exchange Act Release No. 34– (October 26, 2011), 76 FR 67519 (November 1, 59802 (April 20, 2009), 74 FR 19248 (April 28, settlement date. 2011). 2009).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77862 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

III. Discussion notice is hereby given that on November member accesses an average daily Section 17A(b)(3)(F) of the Act 4 29, 2011, NASDAQ OMX BX, Inc. (‘‘BX’’ volume of 3.5 million or more shares of requires, among other things, that the or the ‘‘Exchange’’) filed with the liquidity, or through which it provides rules of a clearing agency be designed to Securities and Exchange Commission an average daily volume of 25,000 or promote the prompt and accurate (‘‘Commission’’) the proposed rule more shares of liquidity during the clearance and settlement of security change as described in Items I, II, and month. Members receive a credit of transactions and to generally protect III below, which Items have been $0.0005 per share executed with respect investors and the public interest. prepared by the Exchange. The to orders that access liquidity but that Because the proposed rule discourages Commission is publishing this notice to do not qualify for the requirements of persistent fails in the marketplace by solicit comments on the proposed rule this pricing tier. Effective December 1, expanding the application of the fails change from interested persons. 2011, BX will expand the criteria that enable an order to receive the higher charge to Agency debt securities I. Self-Regulatory Organization’s credit to include orders entered through transactions, the proposed rule change Statement of the Terms of Substance of an MPID through which the member promotes the prompt and accurate the Proposed Rule Change clearance and settlement of security routes an average daily volume of transactions and generally protects The Exchange proposes to modify 25,000 or more shares. The change investors and the public interest and pricing for BX Members using the reflects the fact that effective November therefore is consistent with the NASDAQ OMX BX Equities System. 14, 2011, BX began offering an optional requirements of Section 17A(b)(3)(F) of The Exchange will implement the routing service to its members.3 the Act. proposed rule on December 1, 2011. Accordingly, as a means to incentivize The text of the proposed rule change members to use the new routing IV. Conclusion is available on the Exchange’s Web site functionality, BX believes that it is On the basis of the foregoing, the at http:// appropriate to provide a discount to Commission finds that the proposal is nasdaqomxbx.cchwallstreet.com, at the members that route significant volumes consistent with the requirements of the principal office of the Exchange, and at of orders using BX. Act and in particular with the the Commission’s public reference requirements of Section 17A of the Act 5 room. 2. Statutory Basis and the rules and regulations BX believes that the proposed rule II. Self-Regulatory Organization’s thereunder. change is consistent with the provisions Statement of the Purpose of, and It is therefore ordered, pursuant to of Section 6 of the Act,4 in general, and Statutory Basis for, the Proposed Rule Section 19(b)(2) of the Act,6 that the with Section 6(b)(4) of the Act,5 in Change proposed rule change (File No. SR– particular, in that it provides for the FICC–2011–08) be, and hereby is, In its filing with the Commission, the equitable allocation of reasonable dues, approved.7 Exchange included statements fees and other charges among members For the Commission by the Division of concerning the purpose of and basis for and issuers and other persons using any Trading and Markets, pursuant to delegated the proposed rule change and discussed facility or system which BX operates or authority.8 any comments it received on the controls. All similarly situated members Kevin M. O’Neill, proposed rule change. The text of these are subject to the same fee structure, and Deputy Secretary. statements may be examined at the access to BX is offered on fair and non- [FR Doc. 2011–31997 Filed 12–13–11; 8:45 am] places specified in Item IV below. The discriminatory terms. BILLING CODE 8011–01–P Exchange has prepared summaries, set The proposed change will increase forth in Sections A, B, and C below, of the credit paid to members that access the most significant aspects of such liquidity at BX in circumstances where SECURITIES AND EXCHANGE statements. such members also route a specified COMMISSION A. Self-Regulatory Organization’s volume of orders using BX. Because members that use the BX router will pay [Release No. 34–65912; File No. SR–BX– Statement of the Purpose of, and 2011–082] Statutory Basis for, the Proposed Rule a fee for routed orders, and because Change routed orders will generally check the Self-Regulatory Organizations; BX book before routing and therefore NASDAQ OMX BX, Inc.; Notice of Filing 1. Purpose may partially execute at BX, increased and Immediate Effectiveness of BX is proposing to modify its fees for use of the BX router has the potential Proposed Rule Change To Modify trades that execute at prices at or above both to increase BX’s revenue and to Pricing for BX Members Using the $1. BX has a pricing model under which increase the volume of order flow that NASDAQ OMX BX Equities System members are charged for the execution checks the BX book. Such an increase in of quotes/orders posted on the BX book order flow may, in turn, encourage December 8, 2011. members that seek to post liquidity to Pursuant to Section 19(b)(1) of the (i.e., quotes/orders that provide liquidity), while members receive a post non-marketable orders at BX, Securities Exchange Act of 1934 thereby increasing the depth of the BX (‘‘Act’’),1 and Rule 19b–4 thereunder,2 rebate for orders that access liquidity. Since BX introduced this pricing model book and encouraging still greater volumes of order flow to be directed to 4 in 2009, several other exchanges have 15 U.S.C. 78q–1(b)(3)(F). BX. Accordingly, BX believes that it is 5 15 U.S.C. 78q–1. emulated it, including the EDGA 6 15 U.S.C. 78s(b)(2). Exchange, the BATS–Y Exchange, and reasonable to offer a credit to members 7 In approving the proposed rule change, the the CBOE Stock Exchange (‘‘CBSX’’). that make significant use of the BX Commission considered the proposal’s impact on Currently, the credit provided for orders efficiency, competition and capital formation. 15 3 Securities Exchange Act Release No. 65470 U.S.C. 78c(f). that access liquidity is $0.0014 per share (October 3, 2011), 76 FR 62489 (October 7, 2011) 8 17 CFR 200.30–3(a)(12). executed if the order is entered through (SR–BX–2011–048). 1 15 U.S.C. 78s(b)(1). a BX Equities System Market Participant 4 15 U.S.C. 78f. 2 17 CFR 240.19b–4. Identifier (‘‘MPID’’) through which the 5 15 U.S.C. 78f(b)(4).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77863

router to encourage these potential III. Date of Effectiveness of the printing in the Commission’s Public benefits to its market quality. BX further Proposed Rule Change and Timing for Reference Room, 100 F Street NE., believes that the proposed change is Commission Action Washington, DC 20549, on official equitable because (i) members that The foregoing rule change has become business days between the hours of 10 receive the higher credit due to use of effective pursuant to Section a.m. and 3 p.m. Copies of the filing also the BX router will also be paying fees 19(b)(3)(A)(ii) of the Act.6 At any time will be available for inspection and associated with routing orders, (ii) other within 60 days of the filing of the copying at the principal office of the members may benefit from increased proposed rule change, the Commission Exchange. All comments received will use of the BX router due to the potential summarily may temporarily suspend be posted without change; the for associated benefits to overall market such rule change if it appears to the Commission does not edit personal quality, and (iii) existing means of Commission that such action is identifying information from receiving a credit of $0.0014 per share necessary or appropriate in the public submissions. You should submit only executed for liquidity-accessing orders interest, for the protection of investors, information that you wish to make remain unchanged. As a general matter, or otherwise in furtherance of the available publicly. BX also believes that it is reasonable purposes of the Act. If the Commission All submissions should refer to File and equitable to use pricing incentives, takes such action, the Commission shall Number SR–BX–2011–082 and should such as a higher rebate for accessing institute proceedings to determine be submitted on or before January 4, 2012. liquidity, to encourage members to whether the proposed rule should be increase their participation in the approved or disapproved. For the Commission, by the Division of market. Trading and Markets, pursuant to delegated IV. Solicitation of Comments authority.7 Finally, BX notes that it operates in a Interested persons are invited to Kevin M. O’Neill, highly competitive market in which submit written data, views, and Deputy Secretary. market participants can readily favor arguments concerning the foregoing, competing venues if they deem fee [FR Doc. 2011–31998 Filed 12–13–11; 8:45 am] including whether the proposed rule BILLING CODE 8011–01–P levels at a particular venue to be change is consistent with the Act. excessive. In such an environment, BX Comments may be submitted by any of must continually adjust its fees to the following methods: SECURITIES AND EXCHANGE remain competitive with other COMMISSION exchanges and with alternative trading Electronic Comments systems that have been exempted from • Use the Commission’s Internet [Release No. 34–65915; File No. SR– compliance with the statutory standards comment form (http://www.sec.gov/ NASDAQ–2011–166] applicable to exchanges. BX believes rules/sro.shtml); or Self-Regulatory Organizations; The that the proposed rule change reflects • Send an email to NASDAQ Stock Market LLC; Notice of this competitive environment because it [email protected]. Please include Filing and Immediate Effectiveness of will use pricing incentives to encourage File Number SR–BX–2011–082 on the Proposed Rule Change To Amend Rule greater use of BX’s routing and subject line. 4613(a)(2)(D) To Clarify That the execution facilities. Paper Comments Designated Percentage for Rights and B. Self-Regulatory Organization’s • Send paper comments in triplicate Warrants Is Thirty Percent Statement on Burden on Competition to Elizabeth M. Murphy, Secretary, December 8, 2011. The Exchange does not believe that Securities and Exchange Commission, Pursuant to Section 19(b)(1) of the the proposed rule change will result in 100 F Street NE., Washington, DC Securities Exchange Act of 1934 any burden on competition that is not 20549–1090. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 necessary or appropriate in furtherance All submissions should refer to File notice is hereby given that on November of the purposes of the Act, as amended. Number SR–BX–2011–082. This file 29, 2011, The NASDAQ Stock Market Because the market for order execution number should be included on the LLC (‘‘NASDAQ’’), filed with the and routing is extremely competitive, subject line if email is used. To help the Securities and Exchange Commission members may readily opt to disfavor Commission process and review your (‘‘Commission’’) the proposed rule BX’s execution and routing services if comments more efficiently, please use change as described in Items I and II they believe that alternatives offer them only one method. The Commission will below, which Items have been prepared better value. For this reason and the post all comments on the Commission’s by NASDAQ. The Commission is reasons discussed in connection with Internet Web site (http://www.sec.gov/ publishing this notice to solicit the statutory basis for the proposed rule rules/sro.shtml). comments on the proposed rule change change, BX does not believe that the Copies of the submission, all from interested persons. subsequent amendments, all written proposed changes will impair the ability I. Self-Regulatory Organization’s of members or competing order statements with respect to the proposed rule change that are filed with the Statement of the Terms of Substance of execution venues to maintain their Commission, and all written the Proposed Rule Change competitive standing in the financial communications relating to the NASDAQ proposes to amend Rule markets. proposed rule change between the 4613(a)(2)(D) to clarify that the C. Self-Regulatory Organization’s Commission and any person, other than Designated Percentage for rights and Statement on Comments on the those that may be withheld from the warrants, which are no longer subject to Proposed Rule Change Received From public in accordance with the Rule 4120(a)(11), is 30 percent. Members, Participants, or Others provisions of 5 U.S.C. 552, will be available for Web site viewing and 7 17 CFR 200.30–3(a)(12). Written comments were neither 1 15 U.S.C. 78s(b)(1). solicited nor received. 6 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77864 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

The text of the proposed rule change A. Self-Regulatory Organization’s certain securities. NASDAQ is applying is below. Proposed new language is Statement of the Purpose of, and the the same Designated Percentage to rights italicized. Statutory Basis for, the Proposed Rule and warrants, which are no longer Change covered by the trading pause under Rule 4613. Market Maker Obligations 4120(a)(11), as it had prior to recent 1. Purpose A member registered as a Market Maker changes to the rule. shall engage in a course of dealings for its NASDAQ proposes to amend Rule own account to assist in the maintenance, 4613(a)(2)(D) to clarify that the B. Self-Regulatory Organization’s insofar as reasonably practicable, of fair and Designated Percentage for rights and Statement on Burden on Competition orderly markets in accordance with this Rule. warrants, which are not subject to Rule NASDAQ does not believe that the (a) Quotation Requirements and 4120(a)(11), is 30 percent. proposed rule change will result in any Obligations On June 23, 2011, the Commission burden on competition that is not (1) No change. approved a proposed rule change of necessary or appropriate in furtherance (2) Pricing Obligations. For NMS stocks (as NASDAQ, together with the analogous of the purposes of the Act, as amended. defined in Rule 600 under Regulation NMS) rule changes of other equity exchanges a Market Maker shall adhere to the pricing and FINRA to amend their respective C. Self-Regulatory Organization’s obligations established by this Rule during rules, to expand Rule 4120(a)(11) to Statement on Comments on the Regular Trading Hours; provided, however, include all remaining NMS stocks, Proposed Rule Change Received From that such pricing obligations (i) shall not which included rights and warrants.3 In Members, Participants, or Others commence during any trading day until after expanding the coverage of Rule Written comments were neither the first regular way transaction on the 4120(a)(11), NASDAQ also amended solicited nor received. primary listing market in the security, as Rule 4613(a)(2)(D) to state specific reported by the responsible single plan Designated Percentages for the securities III. Date of Effectiveness of the processor, and (ii) shall be suspended during covered under new Rules Proposed Rule Change and Timing for a trading halt, suspension, or pause, and 4120(a)(11)(A)–(C). Prior to the Commission Action shall not re-commence until after the first expansion, all NMS stocks not covered regular way transaction on the primary by Rule 4120(a)(11), including rights The Exchange has filed the proposed listing market in the security following such rule change pursuant to Section and warrants, had a Designated 8 halt, suspension, or pause, as reported by the 19(b)(3)(A)(iii) of the Act and Rule Percentage of 30 percent. Given that 9 responsible single plan processor. rights and warrants are once again 19b–4(f)(6) thereunder. Because the (A)–(C) No change. excluded from the Rule 4120(a)(11) proposed rule change does not: (i) (D) For purposes of this Rule, the trading pause,4 NASDAQ is making a Significantly affect the protection of ‘‘Designated Percentage’’ shall be 8% for clarifying change to Rule 4613(a)(2)(D) investors or the public interest; (ii) securities subject to Rule 4120(a)(11)(A), 28% to state that rights and warrants shall impose any significant burden on for securities subject to Rule 4120(a)(11)(B), have a Designated Percentage of 30 competition; and (iii) become operative and 30% for securities subject to Rule percent. prior to 30 days from the date on which 4120(a)(11)(C), except that between 9:30 a.m. it was filed, or such shorter time as the and 9:45 a.m. and between 3:35 p.m. and the 2. Statutory Basis Commission may designate, if close of trading, when Rule 4120(a)(11) is not The proposed rule change is consistent with the protection of in effect, the Designated Percentage shall be consistent with Section 6(b) of the Act,5 investors and the public interest, the 20% for securities subject to Rule in general, and furthers the objectives of proposed rule change has become 4120(a)(11)(A), 28% for securities subject to Section 6(b)(5),6 in particular, in that it effective pursuant to Section 19(b)(3)(A) Rule 4120(a)(11)(B), and 30% for securities is designed to prevent fraudulent and of the Act 10 and Rule 19b–4(f)(6)(iii) subject to Rule 4120(a)(11)(C). manipulative acts and practices, to thereunder.11 The Designated Percentage for rights and promote just and equitable principles of A proposed rule change filed under warrants shall be 30%. trade, to foster cooperation and Rule 19b–4(f)(6) 12 normally does not (E)–(K) No change. coordination with persons engaged in become operative for 30 days after the (b)–(e) No change. facilitating transactions in securities, date of filing. However, pursuant to * * * * * and to remove impediments to and Rule 19b–4(f)(6)(iii) 13 the Commission perfect the mechanism of a free and may designate a shorter time if such II. Self-Regulatory Organization’s open market and a national market action is consistent with the protection Statement of the Purpose of, and system. The proposed rule change also of investors and the public interest. The Statutory Basis for, the Proposed Rule is designed to support the principles of Exchange has asked the Commission to Change Section 11A(a)(1) 7 of the Act in that it waive the 30-day operative delay so that seeks to ensure fair competition among the proposal may become operative In its filing with the Commission, brokers and dealers and among immediately upon filing. NASDAQ included statements exchange markets. NASDAQ believes concerning the purpose of and basis for that the proposed rule meets these 8 15 U.S.C. 78s(b)(3)(A)(iii). the proposed rule change and discussed requirements because it makes a 9 17 CFR 240.19b–4(f)(6). any comments it received on the clarifying change to a rule that is 10 15 U.S.C. 78s(b)(3)(A). proposed rule change. The text of these currently silent on how it is applied to 11 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– statements may be examined at the 4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange’s intent places specified in Item IV below. 3 See Securities Exchange Act Release No. 64735 to file the proposed rule change along with a brief NASDAQ has prepared summaries, set (June 23, 2011), 76 FR 38243 (June 29, 2011) (SR– description and text of the proposed rule change, forth in Sections A, B, and C below, of NASDAQ–2011–067, et al.). at least five business days prior to the date of filing 4 the most significant aspects of such See Securities Exchange Act Release No. 65814 of the proposed rule change, or such shorter time (November 23, 2011) (SR–NASDAQ–2011–154). as designated by the Commission. The Exchange statements. 5 15 U.S.C. 78f(b). has satisfied this requirement. 6 15 U.S.C. 78f(b)(5). 12 17 CFR 240.19b–4(f)(6). 7 15 U.S.C. 78k–1(a)(1). 13 17 CFR 240.19b–4(f)(6)(iii).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77865

The Commission believes that rules/sro.shtml). Copies of the requirements. Because this filing was waiving the 30-day operative delay is submission, all subsequent received by the Securities and Exchange consistent with the protection of amendments, all written statements Commission prior to amendments to investors and the public interest. with respect to the proposed rule Section 19(b) of the Securities Exchange Specifying 30% as the Designated change that are filed with the Act (through the Dodd-Frank Wall Percentage for rights and warrants in Commission, and all written Street Reform and Consumer Protection Rule 4613(a)(2)(D) would restore the communications relating to the Act), the operative timing requirements Market Maker quoting obligations that proposed rule change between the for the Securities and Exchange existed prior to the recent inclusion and Commission and any person, other than Commission’s action with respect to the subsequent exclusion of rights and those that may be withheld from the filing are different from the amended warrants from the single-stock circuit public in accordance with the timing requirements. However, the breaker pilot program. Allowing the provisions of 5 U.S.C. 552, will be release was sent to the Federal Register change to be operative upon filing available for Web site viewing and reflecting the amended and should minimize investor confusion on printing in the Commission’s Public consequently improper timing how Rule 4613(a)(2)(D) will operate for Reference Room, 100 F Street, NE., requirements. rights and warrants in light of the recent Washington, DC 20549, on official FOR FURTHER INFORMATION CONTACT: exclusion of rights and warrants from business days between the hours of 10 Joseph Horn, Division of Trading and Rule 4120(a)(11). For this reason, the a.m. and 3 p.m. Copies of such filing Markets, Securities and Exchange Commission designates the proposed also will be available for inspection and Commission, 100 F Street NE., rule change as operative upon filing copying at the principal office of the Washington, DC 20549, (202) 551–5765. with the Commission.14 Exchange. All comments received will At any time within 60 days of the be posted without change; the Correction filing of the proposed rule change, the Commission does not edit personal In the Federal Register of December Commission summarily may identifying information from 12, 2010, in FR Doc. 2011–31762, on temporarily suspend such rule change if submissions. You should submit only page 77296, in the thirty-second line of it appears to the Commission that such information that you wish to make the third column, correct the paragraph action is necessary or appropriate in the available publicly. All submissions to read ‘‘Within 35 days of the date of public interest, for the protection of should refer to File No. SR–NASDAQ– publication of this notice in the Federal investors, or otherwise in furtherance of 2011–166 and should be submitted on Register or within such longer period (i) the purposes of the Act. or before January 4, 2012. As the Commission may designate up to IV. Solicitation of Comments For the Commission, by the Division of 90 days of such date if it finds such Trading and Markets, pursuant to delegated longer period to be appropriate and Interested persons are invited to 15 authority. publishes its reasons for so finding or submit written data, views, and Kevin M. O’Neill, arguments concerning the foregoing, (ii) as to which the self-regulatory Deputy Secretary. including whether the proposed rule organization consents, the Commission change is consistent with the Act. [FR Doc. 2011–32000 Filed 12–13–11; 8:45 am] shall: (a) By order approve such Comments may be submitted by any of BILLING CODE 8011–01–P proposed rule change or (b) institute the following methods: proceedings to determine whether the proposed rule change should be Electronic Comments SECURITIES AND EXCHANGE disapproved.’’ • COMMISSION Use the Commission’s Internet Dated: December 12, 2011. comment form (http://www.sec.gov/ [Release No. 34–65899A; File No. SR–FICC– Kevin M. O’Neill, 2008–01] rules/sro.shtml); or Deputy Secretary. • Send an email to rule- [email protected]. Please include File Self-Regulatory Organizations; Fixed [FR Doc. 2011–32164 Filed 12–12–11; 4:15 pm] No. SR–NASDAQ–2011–166 on the Income Clearing Corporation; Notice of BILLING CODE 8011–01–P subject line. Filing of Proposed Rule Change To Allow the Mortgage-Backed Securities Paper Comments Division To Provide Guaranteed SECURITIES AND EXCHANGE • Send paper comments in triplicate Settlement and Central Counterparty COMMISSION to Elizabeth M. Murphy, Secretary, Services; Correction [Release No. 34–65918; File No. SR–MSRB– Securities and Exchange Commission, 2011–09] AGENCY: 100 F Street NE., Washington, DC Securities and Exchange 20549–1090. Commission. Self-Regulatory Organizations; ACTION: All submissions should refer to File No. Notice; correction. Municipal Securities Rulemaking Board; Order Instituting Proceedings SR–NASDAQ–2011–166. This file SUMMARY: The Securities and Exchange to Determine Whether to Disapprove number should be included on the Commission published a document in Proposed Rule Change, as Modified by subject line if email is used. To help the the Federal Register of December 12, Amendment No. 2, Consisting of Commission process and review your 2011, concerning a Self-Regulatory Interpretive Notice Concerning the comments more efficiently, please use Organizations; Fixed Income Clearing Application of MSRB Rule G–17 to only one method. The Commission will Corporation; Notice of Filing of Underwriters of Municipal Securities post all comments on the Commission’s Proposed Rule Change to Allow the Internet Web site (http://www.sec.gov/ Mortgage-Backed Securities Division to December 8, 2011. Provide Guaranteed Settlement and 14 For purposes only of waiving the 30-day Central Counterparty Services. The I. Introduction operative delay, the Commission has also considered the proposed rule’s impact on document contained improper timing On August 22, 2011, the Municipal efficiency, competition, and capital formation. See Securities Rulemaking Board (‘‘MSRB’’ 15 U.S.C. 78c(f). 15 17 CFR 200.30–3(a)(12). or ‘‘Board’’) filed with the Securities

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77866 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

and Exchange Commission MSRB extended the time period for B. Role of the Underwriter/Conflicts of (‘‘Commission’’), pursuant to Section Commission action to December 8, Interest 19(b)(1) of the Securities Exchange Act 2011. of 1934 (‘‘Exchange Act’’ or ‘‘Act’’) 1 and This order institutes proceedings Under the Notice, MSRB Rule G–17’s Rule 19b–4 thereunder,2 a proposal under Section 19(b)(2)(B) of the Act to duty to deal fairly with all persons consisting of an interpretive notice determine whether to disapprove the would require the underwriter to make concerning the application of MSRB proposed rule change. certain disclosures to the issuer of Rule G–17 (Conduct of Municipal municipal securities to clarify the Securities and Municipal Advisory II. Description of the Proposal underwriter’s role in an issuance of Activities) to underwriters of municipal MSRB proposes to adopt an municipal securities and the actual or securities (‘‘Notice’’). The proposed rule interpretive notice with respect to potential material conflicts of interest change was published for comment in MSRB Rule G–17, which states that with respect to such issuance. the Federal Register on September 9, ‘‘[i]n the conduct of its municipal 2011.3 The Commission received five 1. Disclosures Concerning the securities or municipal advisory Underwriter’s Role comment letters on the proposed rule activities, each broker, dealer, 4 change. On October 11, 2011, the municipal securities dealer, and The Notice would require an MSRB extended the time period for municipal advisor shall deal fairly with underwriter to disclose the following Commission action to December 7, all persons and shall not engage in any information to an issuer: (A) MSRB Rule 2011. On November 3, 2011, the MSRB deceptive, dishonest, or unfair G–17 requires an underwriter to deal filed Amendment No. 1 to the proposed practice.’’ fairly at all times with both municipal rule change. On November 10, 2011, the The scope of the Notice would apply issuers and investors; (B) the MSRB withdrew Amendment No. 1, to underwriters and their duty to responded to comments,5 and filed underwriter’s primary role is to municipal entity 8 issuers of municipal purchase securities with a view to Amendment No. 2 to the proposed rule securities in negotiated underwritings change. The proposed rule change, as distribution in an arm’s-length (except as set forth otherwise), but commercial transaction with the issuer modified by Amendment No. 2, was would not apply to selling group published in the Federal Register on and it has financial and other interests members or when a dealer is serving as November 21, 2011.6 The Commission that differ from those of the issuer; (C) an advisor to a municipal entity. The received eight comment letters on the unlike a municipal advisor, the Notice includes the following sections: proposed rule change, as modified by underwriter does not have a fiduciary (1) Basic Fair Dealing Principle; (2) Role Amendment No. 2, and a response from duty to the issuer under the federal of the Underwriter/Conflicts of Interest; the MSRB.7 On December 6, 2011, the securities laws and is not required by (3) Representations to Issuers; (4) federal law to act in the best interest of Required Disclosures to Issuers; (5) 1 15 U.S.C. 78s(b)(1). the issuer without regard to the 2 17 CFR 240.19b–4. Underwriter Duties in Connection with underwriter’s own financial or other 3 See Securities Exchange Act Release No. 65263 Issuer Disclosure Documents; (5) interests; (D) the underwriter has a duty (September 6, 2011), 76 FR 55989. Underwriter Compensation and New to purchase securities from the issuer at 4 See Letters from Joy A. Howard, Principal, WM Issue Pricing; (6) Conflicts of Interest; a fair and reasonable price, but must Financial Strategies, dated September 30, 2011 (7) Retail Order Periods; and (8) Dealer (‘‘WM Letter’’); Mike Nicholas, Chief Executive balance that duty with its duty to sell Officer, Bond Dealers of America, dated September Payments to Issuer Personnel. municipal securities to investors at 30, 2010 (‘‘BDA Letter’’); Colette J. Irwin-Knott, CIPFA, President, National Association of A. Basic Fair Dealing Principle prices that are fair and reasonable; and (E) the underwriter will review the Independent Public Finance Advisors, dated The Notice would specify that an September 30, 2011 (‘‘NAIPFA Letter’’); Leslie M. official statement for the issuer’s underwriter must not misrepresent or Norwood, Managing Director and Associate General securities in accordance with, and as Counsel, Securities Industry and Financial Markets omit the facts, risks, potential benefits, part of, its responsibilities to investors Association, dated September 30, 2011 (‘‘SIFMA or other material information about under the federal securities laws, as Letter’’); and Susan Gaffney, Director, Federal municipal securities activities Liaison Center, Government Finance Officers applied to the facts and circumstances undertaken with a municipal entity Association, dated October 3, 2011 (‘‘GFOA of the transaction. Moreover, the Notice Letter’’). issuer. The Notice would also state that would state that the underwriter must 5 See Letter from Margaret C. Henry, General MSRB Rule G–17 establishes a general not recommend that the issuer not Counsel, Market Regulation, MSRB, to Elizabeth M. duty of a dealer to deal fairly with all Murphy, Secretary, Commission, dated November retain a municipal advisor. 10, 2011 (‘‘Response Letter I’’). persons (including, but not limited to, 6 See Securities Exchange Act Release No. 65749 issuers of municipal securities), even in 2. Disclosure Concerning the (November 15, 2011), 76 FR 72013. the absence of fraud. Underwriter’s Compensation 7 See Letters from Colette J. Irwin-Knott, CIPFA, President, National Association of Independent The Notice would require an Public Finance Advisors, dated November 30, 2011 Letter’’). See Letter from Margaret C. Henry, General (‘‘NAIPFA Letter II’’); E. John White, Chief Counsel, Market Regulation, MSRB, to Elizabeth M. underwriter to disclose to an issuer Executive Officer, Public Financial Management, Murphy, Secretary, Commission, dated December 7, whether its underwriting compensation Inc., dated November 30, 2011 (‘‘PFM Letter’’); 2011 (‘‘Response Letter II’’). will be contingent on the closing of a 8 The Notice defines the term ‘‘municipal entity’’ Leslie M. Norwood, Managing Director and transaction. The underwriter must also Associate General Counsel, Securities Industry and as that term is defined by Section 15B(e)(8) of the Financial Markets Association, dated November 30, Exchange Act: ‘‘any State, political subdivision of disclose that compensation that is 2011 (‘‘SIFMA Letter II’’); Joy A. Howard, Principal, a State, or municipal corporate instrumentality of contingent on the closing of a WM Financial Strategies, dated November 30, 2011 a State, including—(A) any agency, authority, or transaction or the size of a transaction (‘‘WM Letter II’’); Michael Nicholas, CEO, Bond instrumentality of the State, political subdivision, Dealers of America, dated December 1, 2011 (‘‘BDA or municipal corporate instrumentality; (B) any presents a conflict of interest, because it Letter II’’); Susan Gaffney, Director, Federal Liaison plan, program, or pool of assets sponsored or may cause the underwriter to Center, Government Finance Officers Association, established by the State, political subdivision, or recommend a transaction that it is dated December 1, 2011 (‘‘GFOA Letter II’’); Robert municipal corporate instrumentality or any agency, unnecessary or to recommend that the Doty, AGFS, dated December 1, 2011 (‘‘AGFS authority, or instrumentality thereof; and (C) any Letter’’); and Peter C. Orr, CFA, President, Intuitive other issuer of municipal securities.’’ See proposed size of the transaction be larger than is Analytics LLC, dated December 7, 2011 (‘‘IA Notice endnote 1. necessary.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77867

3. Other Conflicts Disclosures sufficient time before the execution of a do not have the requisite knowledge or The Notice would require an contract with the underwriter to allow expertise. the official to evaluate the underwriter to disclose other potential D. Required Disclosures to Issuers recommendation, as described below in or actual material conflicts of interest, The Notice would require that including, but not limited to, the Section II (D) ‘‘Required Disclosures to Issuers’’. disclosures be tailored to the personnel following: (A) Any payments described of the issuer if knowledge or experience below in Section II (G)(1) ‘‘Conflicts of 5. Acknowledgement of Disclosures is lacking with a particular type of Interest—Payments to or from Third structure. While many municipal Parties’’; (B) any arrangements described The Notice would require an underwriter to attempt to receive securities are issued using financing below in Section II (G)(2) ‘‘Conflicts of structures that are routine and well Interest—Profit-Sharing with Investors’’; written acknowledgement (other than by automatic email receipt) by the official understood by the typical municipal (C) the credit default swap disclosures market professional, including most described below in Section II (G)(3) of the issuer of receipt of the foregoing disclosures. If the official of the issuer issuer personnel that have the lead ‘‘Conflicts of Interest—Credit Default responsibilities in connection with the Swaps’’; and (D) any incentives for the agrees to proceed with the underwriting engagement after receipt of the issuance of municipal securities, the underwriter to recommend a complex underwriter must provide disclosures municipal securities financing and other disclosures but will not provide written acknowledgement of receipt, the on the material aspects of structures associated conflicts of interest described when the underwriter reasonably below in Section II (D) ‘‘Required underwriter may proceed with the engagement after documenting with believes issuer personnel lacks Disclosures to Issuers’’. knowledge or experience with such The Notice would permit disclosures specificity why it was unable to obtain such written acknowledgement. structures that it recommends. concerning the role of the underwriter In cases where the issuer personnel and the underwriter’s compensation to C. Representations to Issuers responsible for the issuance of be made by a syndicate manager on municipal securities would not be well behalf of other syndicate members. The The Notice would require all positioned to fully understand or assess Notice would require other conflicts representations made by underwriters to the implications of a financing in its disclosures to be made by the particular issuers of municipal securities in totality, because the financing is underwriters subject to such conflicts. connection with municipal securities structured in an unique, atypical, or undertakings, whether written or oral, to 4. Timing and Manner of Disclosures otherwise complex manner, the be truthful and accurate and not underwriter in a negotiated offering that The Notice would require that all of misrepresent or omit material facts. recommends such complex financing the disclosures be made in writing to an Underwriters must have a reasonable has an obligation to make more official of the issuer that the underwriter basis for the representations and other particularized disclosures than reasonably believes has the authority to material information contained in otherwise required in a routine bind the issuer by contract with the documents they prepare and must financing.9 Examples of complex underwriter and that, to the knowledge refrain from including representations financings include variable rate demand of the underwriter, is not a party to a or other information they know or obligations and financings involving disclosed conflict. The Notice would should know is inaccurate or derivatives such as swaps. The specify that the disclosures must be misleading. For example, in connection underwriter must disclose the material made in a manner designed to make with a certificate signed by the financial characteristics of the complex clear to such official the subject matter underwriter that will be relied upon by financing, as well as the material of the disclosures and their implications the issuer or other relevant parties to an financial risks of the financing that are for the issuer. underwriting, for example, an issue known to the underwriter and The Notice would specify when the price certificate, the dealer must have a reasonably foreseeable at the time of the disclosures must be made. First, reasonable basis for the representations disclosure.10 The underwriter must also disclosure concerning the arm’s-length and other material information nature of the underwriter-issuer contained therein. 9 The Notice would state that if a complex relationship must be made in the In addition, an underwriter’s response municipal securities financing consists of an earliest stages of the underwriter’s to an issuer’s request for proposals or otherwise routine financing structure that incorporates a unique, atypical or complex element relationship with the issuer, for qualifications must fairly and accurately and the issuer personnel have knowledge or example, in a response to a request for describe the underwriter’s capacity, experience with respect to the routine elements of proposals or in promotional materials resources, and knowledge to perform the financing, the disclosure of material risks and provided to an issuer. Other disclosures the proposed underwriting as of the characteristics may be limited to those relating to such specific element and any material impact such concerning the role of the underwriter time the proposal is submitted and must element may have on other features that would and the underwriter’s compensation not contain any representations or other normally be viewed as routine. See proposed Notice generally must be made when the material information about such endnote 6. underwriter is engaged to perform capacity, resources, or knowledge that 10 The Notice would provide an example that an the underwriter knows or should know underwriter that recommends variable rate demand underwriting services, for example, in obligations should inform the issuer of the risk of an engagement letter, not solely in a to be inaccurate or misleading. Matters interest rate fluctuations and material risks of any bond purchase agreement. Moreover, not within the personal knowledge of associated credit or liquidity facilities (for example, conflicts disclosures must be made at those preparing the response, for the risk that the issuer might not be able to replace example, pending litigation, must be the facility upon its expiration and might be the same time, except with regard to required to repay the facility provider over a short conflicts discovered or arising after the confirmed by those with knowledge of period of time). As an additional example, if the underwriter has been engaged. For the subject matter. An underwriter must underwriter recommends that the issuer swap the example, a conflict may not be present not represent that it has the requisite floating rate interest payments on the variable rate knowledge or expertise with respect to demand obligations to fixed rate payments under a until an underwriter has recommended swap, the underwriter must disclose the material a particular financing. In that case, the a particular financing if the personnel financial risks (including market, credit, disclosure must be provided in that it intends to work on the financing Continued

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77868 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

disclose any incentives to recommend official to evaluate the recommendation issuer of its disclosure documents, for the financing and other associated and (B) a manner designed to make clear example, cash flows. conflicts of interest.11 These disclosures to such official the subject matter of F. Underwriter Compensation and New must be made in a fair and balanced such disclosures and their implications Issue Pricing manner based on principles of fair for the issuer. The complex financing dealing and good faith. disclosures must address the specific 1. Excessive Compensation The Notice would dictate that the elements of the financing and cannot be level of required disclosure may vary general in nature. Finally, the Notice The Notice states that an according to the issuer’s knowledge or would require the underwriter to make underwriter’s compensation for a new experience with the proposed financing additional efforts reasonably designed to issue (including both direct structure or similar structures, inform the official of the issuer if the compensation paid by the issuer and capability of evaluating the risks of the underwriter does not reasonably believe other separate payments, values, or recommended financing, and financial that the official is capable of credits received by the underwriter from ability to bear the risks of the independently evaluating the the issuer or any other party in recommended financing, in each case disclosures. connection with the underwriting), in based on the reasonable belief of the certain cases and depending upon the underwriter.12 In all events, the E. Underwriter Duties in Connection specific facts and circumstances of the underwriter must disclose any With Issuer Disclosure Documents offering, may be so disproportionate to incentives for the underwriter to The Notice would note that the nature of the underwriting and recommend the complex municipal underwriters often play an important related services performed as to securities financing and other associated role in assisting issuers in the constitute an unfair practice with regard conflicts of interest. preparation of disclosure documents, to the issuer that it is a violation of The Notice would require that this such as preliminary official statements MSRB Rule G–17. The Notice would disclosure be made in writing to an and official statements.13 These look at factors such as the credit quality official of the issuer whom the documents are critical to the municipal of the issue, the size of the issue, market underwriter reasonably believes has the securities transaction, in that investors conditions, the length of time spent authority to bind the issuer by contract rely on the representations contained in structuring the issue, and whether the with the underwriter in (A) sufficient the documents in making their underwriter is paying the fee of the time before the execution of a contract investment decisions. Investment underwriter’s counsel or any other with the underwriter to allow the professionals, such as municipal relevant costs related to the financing. securities analysts and ratings services, 2. Fair Pricing operational, and liquidity risks) and material rely on the representations in forming financial characteristics of the recommended swap (for example, the material economic terms of the an opinion regarding the credit. The Notice states that the duty of fair swap, the material terms relating to the operation The Notice would provide that a dealing under MSRB Rule G–17 of the swap, and the material rights and obligations dealer’s duty to have a reasonable basis includes an implied representation that of the parties during the term of the swap), as well as the material financial risks associated with the for the representations it makes, and the price an underwriter pays to an variable rate demand obligation. other material information it provides, issuer is fair and reasonable, taking into Such disclosure should be sufficient to allow the to an issuer and to ensure that such consideration all relevant factors, issuer to assess the magnitude of its potential representations and information are including the best judgment of the exposure as a result of the complex municipal accurate and not misleading extends to securities financing. The underwriter must also underwriter as to the fair market value inform the issuer that there may be accounting, representations and information of the issue at the time it is priced.14 In legal, and other risks associated with the swap and provided by the underwriter in general, a dealer purchasing bonds in a that the issuer should consult with other connection with the preparation by the competitive underwriting for which the professionals concerning such risks. If the underwriter’s affiliated swap dealer is proposed to issuer may reject any and all bids will be the executing swap dealer, the underwriter may 13 The Notice would state that underwriters that be deemed to have satisfied its duty of satisfy its disclosure obligation with respect to the assist issuers in preparing official statements must fairness to the issuer with respect to the swap if such disclosure has been provided to the remain cognizant of the underwriters’ duties under purchase price of the issue as long as issuer by the affiliated swap dealer or the issuer’s federal securities laws. With respect to primary swap or other financial advisor that is independent offerings of municipal securities, the SEC has noted, the dealer’s bid is a bona fide bid as of the underwriter and the swap dealer, as long as ‘‘By participating in an offering, an underwriter defined in MSRB Rule G–13 15 that is the underwriter has a reasonable basis for belief in makes an implied recommendation about the based on the dealer’s best judgment of the truthfulness and completeness of such securities.’’ See Securities Exchange Act Release disclosure. If the issuer decides to enter into a swap No. 34–26100 (September 22, 1988), 53 FR 37778 with another dealer, the underwriter is not required (September 28, 1998) (proposing Exchange Act Rule 14 The Notice would state that the MSRB has to make disclosures with regard to that swap. 15c2–12) at text following note 70. The SEC has previously observed that whether an underwriter Dealers that recommend swaps or security-based stated that ‘‘this recommendation itself implies that has dealt fairly with an issuer for purposes of MSRB swaps to municipal entities may also be subject to the underwriter has a reasonable basis for belief in Rule G–17 is dependent upon all of the facts and rules of the Commodity Futures Trading the truthfulness and completeness of the key circumstances of an underwriting and is not Commission or those of the Commission. See representations made in any disclosure documents dependent solely on the price of the issue. The proposed Notice endnote 7. used in the offerings.’’ Furthermore, pursuant to Notice refers to MSRB Notice 2009–54 and Rule G– 11 The Notice would provide an example that a SEC Rule 15c2–12(b)(5), an underwriter may not 17 Interpretive Letter—Purchase of new issue from conflict of interest may exist when the underwriter purchase or sell municipal securities in most issuer, MSRB interpretation of December 1, 1997. is also the provider of a swap used by an issuer to primary offerings unless the underwriter has See proposed Notice endnote 11. hedge a municipal securities offering or when the reasonably determined that the issuer or an 15 The Notice would refer to MSRB Rule G– underwriter receives compensation from a swap obligated person has entered into a written 13(b)(iii), which provides: ‘‘For purposes of provider for recommending the swap provider to undertaking to provide certain types of secondary subparagraph (i), a quotation shall be deemed to the issuer. See proposed Notice endnote 8. market disclosure and has a reasonable basis for represent a ‘‘bona fide bid for, or offer of, municipal 12 The Notice would state that even a financing relying on the accuracy of the issuer’s ongoing securities’’ if the broker, dealer or municipal in which the interest rate is benchmarked to an disclosure representations. Securities Exchange Act securities dealer making the quotation is prepared index that is commonly used in the municipal Release No. 34–34961 (November 17, 1994), 59 FR to purchase or sell the security which is the subject marketplace, such as LIBOR or SIFMA, may be 59590 (November 10, 1994) (adopting continuing of the quotation at the price stated in the quotation complex to an issuer that does not understand the disclosure provisions of Exchange Act Rule 15c2– and under such conditions, if any, as are specified components of that index or its possible interaction 12) at text following note 52. See proposed Notice at the time the quotation is made.’’ See proposed with other indexes. See proposed Notice endnote 9. endnote 10. Notice endnote 12.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77869

the fair market value of the securities municipal securities derivative caused the issuer or its obligations to be that are the subject of the bid. transactions. The Notice does not included in the basket or index. In a negotiated underwriting, the require that the amount of such third H. Retail Order Periods underwriter has a duty under MSRB party payments be disclosed. Rule G–17 to negotiate in good faith In addition, the underwriter must The Notice would require an with the issuer. This duty would disclose to the issuer whether the underwriter that has agreed to include the obligation of the dealer to underwriter has entered into any third- underwrite a transaction with a retail ensure the accuracy of representations party arrangements for the marketing of order period to honor such agreement.18 made during the course of such the issuer’s securities. The Notice would require a dealer that negotiations, including representations wishes to allocate securities in a manner regarding the price negotiated and the 2. Profit-Sharing With Investors that is inconsistent with an issuer’s nature of investor demand for the The Notice would state that requirements to obtain the issuer’s securities, for example, the status of the arrangements between the underwriter consent. order period and the order book. If, for and an investor purchasing new issue The Notice would require an example, the dealer represents to the securities from the underwriter underwriter that has agreed to issuer that it is providing the ‘‘best’’ (including purchases that are contingent underwrite a transaction with a retail market price available on the new issue, upon the delivery by the issuer to the order period to take reasonable or that it will exert its best efforts to underwriter of the securities) according measures to ensure that retail clients are obtain the ‘‘most favorable’’ pricing, the to which profits realized from the resale bona fide. An underwriter that dealer may violate MSRB Rule G–17 if by such investor of the securities are knowingly accepts an order that has its actions are inconsistent with such directly or indirectly split or otherwise been framed as a retail order when it is representations.16 shared with the underwriter would, not, for example, a number of small depending on the facts and G. Conflicts of Interest orders placed by an institutional circumstances (including, in particular, investor that would otherwise not 1. Payments To or From Third Parties if such resale occurs reasonably close in qualify as a retail customer, would The Notice would state that in certain time to the original sale by the violate MSRB Rule G–17 if its actions cases, compensation received by the underwriter to the investor), constitute are inconsistent with the issuer’s underwriter from third parties, such as a violation of the underwriter’s fair expectations regarding retail orders. the providers of derivatives and dealing obligation under MSRB Rule Moreover, a dealer that places an order investments (including affiliates of the G–17. Such arrangements could also that is framed as a qualifying retail order underwriters), may color the constitute a violation of MSRB Rule G– but in fact represents an order that does underwriter’s judgment and cause it to 25(c), which precludes a dealer from not meet the qualification requirements recommend products, structures, and sharing, directly or indirectly, in the to be treated as a retail order, for pricing levels to an issuer when it profits or losses of a transaction in example, an order by a retail dealer would not have done so absent such municipal securities with or for a without ‘‘going away’’ orders 19 from payments. The MSRB would view the customer.17 retail customers when such orders are failure of an underwriter to disclose to 3. Credit Default Swaps not within the issuer’s definition of the issuer the existence of payments, ‘‘retail,’’ would violate its MSRB Rule values, or credits received by the The issuance or purchase by a dealer G–17 duty of fair dealing. underwriter in connection with its of credit default swaps for which the The Notice specifies that the MSRB underwriting of the new issue from reference is the issuer for which the will continue to review activities parties other than the issuer, and dealer is serving as underwriter, or an relating to retail order periods to ensure payments made by the underwriter in obligation of that issuer, may pose a that they are conducted in a fair and connection with such new issue to conflict of interest, because trading in orderly manner consistent with the parties other than the issuer (in either such municipal credit default swaps has intent of the issuer and the MSRB’s case including payments, values, or the potential to affect the pricing of the investor protection mandate. underlying reference obligations, as well credits that relate directly or indirectly I. Dealer Payments to Issuer Personnel to collateral transactions integrally as the pricing of other obligations related to the issue being underwritten), brought to market by that issuer. The The Notice would state that dealers to be a violation of the underwriter’s Notice would require a dealer to are reminded of the application of obligation to the issuer under MSRB disclose the fact that it engages in such MSRB Rule G–20 on gifts, gratuities, Rule G–17. activities to the issuers for which the and non-cash compensation, and MSRB For example, the MSRB would dealer serves as underwriter. Rule G–17, in connection with certain consider it to be a violation of MSRB The Notice would not require Rule G–17 for an underwriter to disclosures for activities with regard to 18 The Notice refers to MSRB Interpretation on Priority of Orders for Securities in a Primary compensate an undisclosed third party credit default swaps based on baskets or indexes of municipal issuers that Offering under Rule G–17, MSRB interpretation of in order to secure municipal securities October 12, 2010, reprinted in the MSRB Rule Book. business. Similarly, the MSRB would include the issuer or its obligations, The Notice would remind underwriters of previous consider it to be a violation of MSRB unless the issuer or its obligations MSRB guidance on the pricing of securities sold to retail investors and refer to Guidance on Disclosure Rule G–17 for an underwriter to receive represents more than 2% of the total notional amount of the credit default and Other Sales Practice Obligations to Individual undisclosed compensation from a third and Other Retail Investors in Municipal Securities, party in exchange for recommending swap or the underwriter otherwise MSRB Notice 2009–42 (July 14, 2009). See proposed that third party’s services or products to Notice endnote 15. 17 MSRB Rule D–9 defines the term ‘‘customer’’ 19 The Notice would state that a ‘‘going away’’ an issuer, including business related to as: ‘‘Except as otherwise specifically provided by order is an order for new issue securities for which rule of the Board, the term ‘‘Customer’’ shall mean a customer is already conditionally committed and 16 The Notice would refer to Rule G–17 any person other than a broker, dealer, or municipal cites Securities Exchange Act Release No. 62715 Interpretive Letter—Purchase of new issue from securities dealer acting in its capacity as such or an (August 13, 2010), 75 FR 51128 (August 18, 2010) issuer, MSRB interpretation of December 1, 1997. issuer in transactions involving the sale by the (File No. SR–MSRB–2009–17). See proposed Notice See proposed Notice endnote 13. issuer of a new issue of its securities.’’ endnote 16.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77870 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

payments made to, and expenses comments and the MSRB’s responses financial advisor to represent its reimbursed for, issuer personnel during are set forth below. interests; 31 (3) that the underwriter is the municipal bond issuance process.20 not acting as an advisor; 32 (4) that the A. Basic Fair Dealing Principle The Notice would further state that the underwriter has conflicts with issuers rules are designed to avoid conflicts of Commenters generally supported the because the underwriter represents the interest and to promote fair practices in principle of fair dealing in MSRB Rule interests of investors and other the municipal securities market. G–17,26 but some commenters believed parties; 33 (5) that the underwriter seeks The Notice would alert dealers to that the principle of fair dealing should to maximize profitability; 34 and (6) that consider carefully whether payments not be interpreted to impose a fiduciary the underwriter has no continuing they make in regard to expenses of duty on underwriters to issuers,27 while obligation to the issuer after the issuer personnel in the course of the other commenters believed that transaction.35 bond issuance process, including in underwriters have such a duty if they In Response Letter I, the MSRB noted particular, but not limited to, payments engage in certain activities.28 In that the Notice, as modified by for which dealers seek reimbursement Response Letter I, the MSRB responded Amendment No. 2, incorporates many from bond proceeds or issuers, comport that the Notice does not impose a of the recommendations suggested by with the requirements of MSRB Rule G– fiduciary duty on underwriters and that the commenters, such as requiring 20. For example, the Notice provides the duties imposed by the Notice on underwriters to provide issuers with that a dealer acting as a financial underwriters are no different in many disclosure that underwriters do not have advisor or underwriter may violate cases from the duties already imposed a fiduciary duty to issuers. In addition, MSRB Rule G–20 by paying for on them by MSRB rules with respect to the MSRB noted that the Notice, as excessive or lavish travel, meal, lodging customers. Further, the MSRB stated modified by Amendment No. 2, requires and entertainment expenses in that an underwriter is not required to disclosure regarding the underwriter’s connection with an offering such as may act in the best interest of an issuer role compared to a municipal advisor,36 be incurred for rating agency trips, bond without regard to the underwriter’s own and prohibits an underwriter from closing dinners, and other functions, financial and other interests and is not recommending that the issuer not retain that inure to the personal benefit of required to consider all reasonably a municipal advisor.37 The MSRB also issuer personnel and that exceed the feasible alternatives to the proposed limits or otherwise violate the financings. Rather, the MSRB stated that 31 See GFOA Letter I and NAIPFA Letter I requirements of the rule.21 one purpose of the Notice is to eliminate (requesting a disclosure that an underwriter is no issuer confusion about the role of the replacement for a municipal advisor and stating that when an issuer engages a municipal advisor, III. Comment Letters and the MSRB’s underwriter. Responses the underwriter disclosures should not overlap with B. Role of the Underwriter/Conflicts of areas covered by the role of municipal advisor). As noted earlier, the Commission Other commenters stated their belief that in a received five comments 22 on the Interest negotiated sale, when the issuer of municipal securities engages a registered municipal advisor, proposed rule change as originally 1. Disclosures Concerning the disclosures should be reduced. See NAIPFA Letter 23 proposed and eight comments on the Underwriter’s Role II; SIFMA Letter II; and WM Letter II (stating that proposed rule change, as modified by Some commenters suggested the exemption from some of the disclosures 24 required by the rule for underwriters engaged in a Amendment No. 2. The MSRB filed additional disclosures with respect to two letters responding to the competitive sale should be extended to all 29 transactions in which a financial advisor has been 25 the role of underwriters. For example, comments. A summary of the commenters suggested that the MSRB retained). In Response Letter II, the MSRB noted its require an underwriter to state: (1) That disagreement because it believes that more 20 The Notice would cite to MSRB Rule G–20 disclosure would empower, rather than confuse, Interpretation—Dealer Payments in Connection the underwriter does not have a issuers. With the Municipal Securities Issuance Process, fiduciary duty to the issuer and is a 32 See NAIPFA Letter I. MSRB interpretation of January 29, 2007, reprinted counterparty at arm’s length; 30 (2) that 33 See NAIPFA Letter I. One commenter objected in the MSRB Rule Book. See proposed Notice the issuer may choose to engage a to the required disclosure that an underwriter must endnote 17. balance a fair and reasonable price for issuers with 21 The Notice cites to In the Matter of RBC Capital 26 a fair and reasonable price for investors. See BDA Markets Corporation, SEC Rel. No. 34–59439 (Feb. See SIFMA Letter I. Letter II. The commenter stated its belief that there 27 24, 2009) (settlement in connection with broker- See SIFMA Letter I; NAIPFA Letter I; BDA exists a reasonable price for both issuers and dealer alleged to have violated MSRB Rules G–20 Letter I. Both NAIPFA Letter I and BDA Letter I investors, and recommended that the disclosure be and G–17 for payment of lavish travel and noted that the imposition of a fiduciary duty would modified to reflect that statement. In Response entertainment expenses of city officials and their confuse municipal issuers on the role of Letter II, the MSRB stated its belief that it is families associated with rating agency trips, which underwriters. One commenter disagreed with the appropriate to characterize the underwriter’s duties imposition of a fiduciary duty and noted that expenditures were subsequently reimbursed from of fair pricing as a balance between the interests of municipal issuers often do not understand the bond proceeds as costs of issuance); In the Matter the issuer and investors. disclosures that they are provided and municipal of Merchant Capital, L.L.C., SEC Rel. No. 34–60043 34 issuers do not benefit from complex disclosures See NAIPFA Letter I. (June 4, 2009) (settlement in connection with 35 from firms that are not acting in a fiduciary See NAIPFA Letter I. broker-dealer alleged to have violated MSRB rules capacity. See WM Letter I (stating its belief that the 36 One commenter stated that the requirement for for payment of travel and entertainment expenses proposal will not improve transparency in the an underwriter to compare its obligations with of family and friends of senior officials of issuer and municipal market). others, such as a municipal advisor, should be reimbursement of the expenses from issuers and 28 See, e.g., PFM Letter. The commenter stated eliminated. See BDA Letter II. In Response Letter from proceeds of bond offerings). See proposed that advice given by brokers in their promotion of II, the MSRB noted that it has determined to take Notice endnote 18. themselves to become underwriters makes them the approach suggested by another commenter 22 See supra note 4. municipal advisors. (GFOA) and, therefore, has not changed this 23 See supra note 7. 29 One commenter stated that it supports the provision of the proposal but will monitor 24 One commenter stated that the amended Notice proposal but believes that additional changes would disclosure practices under the proposal and will is a significant improvement over the original be required to protect infrequent and/or small and engage in a dialogue with industry participants and Notice. See PFM Letter. Another commenter stated unsophisticated issuers. See NAIPFA Letter I. the Commission to determine whether sufficient that it supports the changes made in the Notice, as 30 See GFOA Letter I and NAIPFA Letter I. One improvements have occurred in the flow of modified by Amendment No. 2, such as the limits commenter stated its belief that a simple disclosure disclosures to decision-making personnel of issuers on negotiated offerings, disclosures based on from an underwriter to the issuer that the or whether additional steps should be taken. reasonable beliefs, and nondisclosure of third-party underwriter is not acting as financial advisor and 37 One commenter agreed with the MSRB that an payment amounts. See GFOA Letter II. that the issuer should consult with a financial underwriter should not recommend that an issuer 25 See supra notes 5 and 7. advisor would be sufficient. See WM Letter I. not retain a municipal advisor. See BDA Letter II.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77871

stated that it does not believe that it is to disclose to an issuer, and obtain its may arise under less typical necessary for underwriters to disclose informed consent in writing, that the compensation scenarios. that they seek to maximize profitability form of the underwriter’s compensation 3. Other Conflicts Disclosures and have no continuing obligation to the creates a conflict of interest, because issuer after the transaction. underwriter compensation is based One commenter requested additional One commenter suggested that the primarily on the size and type of conflicts of interest disclosures such as MSRB require underwriters to disclose issuance.42 The commenter later stated the duty the underwriter has to 47 pending litigation that may affect the that contingent fees should be investors. In Response Letter I, the underwriter’s municipal securities disclosed.43 Another commenter MSRB stated that it believes that the business, departure of experts that the objected to the characterization of Notice, as modified by Amendment No. 2, would incorporate the commenter’s issuer relied upon, and transactional contingent fee arrangements as resulting recommendation, such as by requiring risk including a comparison of different in a conflict of interest with issuers.44 38 disclosure of an underwriter’s other forms of financings. In Response The commenter stated that such actual or potential material conflicts of Letter I, the MSRB disagreed that arrangements do not necessarily result underwriters should disclose different interest. in a conflict, and recommended that One commenter stated that when types of financings that may be disclosure should state that such applicable to an issuer’s particular there is a syndicate of underwriters, an disclosure ‘‘may’’ present a conflict or underwriter whose participation level is situation because that is under the ‘‘may have’’ the potential for a domain of the municipal advisor, and below 10% should be exempted from conflict.45 48 noted that pending litigation and expert the disclosure requirements. Another departures do not rise to the level of In Response Letter II, the MSRB stated commenter stated that, with respect to conflicts, but could be required by that it believes that it has accurately underwriter syndicates, underwriters issuers as the issuers deem appropriate. characterized compensation who do not have a role in the One commenter stated its belief that arrangements contingent on closing or development or implementation of the the Notice should require underwriters on the size of the transactions as financing structure or other aspects of to educate issuers to better understand creating a conflict of interest—it may be the issue should not be subject to the 49 underwriting pricing and fees.39 In that other factors on which an disclosures. In Response Letter II, the Response Letter I, the MSRB noted it is underwriter and the issuer have a MSRB declined to create any such in the process of developing education coincidence of interests may outweigh exemption since not all conflicts or materials for issuers as suggested by the the conflicting interests resulting from other concerns that arise in the context commenter. the contingent arrangement, but that of an underwriting are necessarily Another commenter stated that does not change the fact that such proportionate to the size of participation of an underwriter. The MSRB noted, underwriters should not be required to arrangement itself represents a conflict. however, that with respect to provide generalized role and Further, given the transaction-based disclosures about the material financial compensation disclosures or written nature of the typical relationship characteristics and risks of an risk disclosures to large and frequent between underwriters and issuers, the underwriting transaction recommended issuers unless requested by such MSRB stated that it believes that the by underwriters, where such issuers.40 In Response Letter II, the proposal’s requirements regarding recommendation is made by the MSRB noted its disagreement and stated disclosure of compensation conflicts, its belief that additional disclosure syndicate manager on behalf of the together with the other conflicts underwriting syndicate, the Notice does would empower, rather than confuse, disclosures included in the proposal, issuers and, therefore, no further not prohibit syndicate members from adequately address concerns that may delegating to the syndicate manager modifications to these provisions are arise in cases where potential conflicts warranted. (through, for example, the agreement may arise under less typical among underwriters) the task of 2. Disclosure Concerning the compensation scenarios. delivering such disclosure in a full and Underwriter’s Compensation One commenter stated that it would timely manner on behalf of the One commenter requested additional be more beneficial to issuers to require syndicate members, although each conflicts of interest disclosures underwriters to disclose the amount of syndicate member would remain regarding underwriter compensation, compensation at the outset and responsible for providing disclosures such as how the underwriter is conclusion of the transaction.46 In with respect to conflicts specific to such compensated.41 In Response Letter I, the Response Letter II, the MSRB stated that member. the provisions relating to these MSRB stated that it believes that the 4. Timing and Manner of Disclosures Notice, as modified by Amendment No. disclosures are appropriate given the 2, would incorporate the commenter’s transaction-based nature of the typical With respect to the disclosure recommendation, such as disclosure relationship between underwriters and process, one commenter stated its belief regarding contingent fee compensation issuers. The MSRB stated its belief that that underwriters should be subject to a as a conflict of interest. the proposal’s requirements regarding process similar to the proposed Another commenter stated its belief disclosure of compensation conflicts, municipal advisors’ more rigorous that the underwriter should be required together with the other conflicts process under the municipal advisor disclosures included in the proposal, portion of proposed MSRB Rules G–17 50 However, the commenter stated that it is concerned adequately address concerns that may and G–36. The commenter stated its that municipal advisors are not subject to arise in cases where potential conflicts professional standards, continuing education, 47 See GFOA Letter I. licensing or other requirements, or a prohibition 48 See SIFMA Letter II. 42 against making political contributions. See NAIPFA Letter I. 49 See BDA Letter II. 38 43 See GFOA Letter I. See also GFOA Letter II. See NAIPFA Letter II. 50 See NAIPFA Letter I. The Commission notes 39 See GFOA Letter I. 44 See BDA Letter II. that these proposals were subsequently withdrawn 40 See SIFMA Letter II. 45 See id. by the MSRB. See Securities Exchange Act Release 41 See GFOA Letter I. 46 See NAIPFA Letter II. Continued

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77872 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

belief that providing disclosures is ‘‘execution of a contract’’ with respect to obligation to document why it was inadequate; rather, underwriters should the timing of the required risk unable to obtain the acknowledgement. be required to obtain informed consent disclosures.54 The commenter stated 5. Acknowledgement of Disclosures from issuers. Moreover, the commenter that execution of the purchase stated its belief that disclosures should agreement should be the appropriate One commenter stated its belief that be made to officials of the municipal measurement. In Response Letter II, the the provision of the Notice requiring entity with the power to bind the MSRB clarified that, other than the issuer written acknowledgement of issuer.51 The commenter also stated that disclosure with regard to the arm’s- disclosures would be helpful, but in the Notice should be amended to length nature of the relationship, the situations where written prohibit the giving of disclosures based remaining disclosures regarding the acknowledgement is not received from on a reasonable belief standard and underwriter’s role, underwriter’s the issuer, the commenter urged the instead require underwriters to have compensation and other conflicts of MSRB to require underwriters to put actual knowledge whether an official interest all must be provided when the forth some level of effort to obtain the has the power to bind the issuer by underwriter is engaged to perform written acknowledgement of the 57 contract. underwriting services (such as in an issuer. Another commenter stated that In Response Letter I, the MSRB stated engagement letter), not solely in the it believes that an underwriter should that it believes that it is not necessary bond purchase agreement. not be required to document why an official of the issuer does not for underwriters to obtain consent from One commenter suggested that the the issuer’s governing body when the acknowledge in writing that disclosures underwriter make its disclosures to the were received.58 Instead, the commenter issuer finance officials have been issuer, in plain English, to ensure that delegated the ability to contract with the recommended that the Notice require the issuer understands such the underwriter to document that underwriter. The MSRB stated that it is disclosures.55 In Response Letter II, the not necessary for a contract to have been disclosures were made and whether MSRB stated that it agrees that acknowledgement was received. executed in order for an underwriter to reasonable efforts must be made to make have a reasonable belief that an issuer In Response Letter II, the MSRB the disclosures understandable, that clarified that if an issuer does not official has the requisite power to bind disclosures must be made in a fair and the issuer. provide the underwriter with a written balanced manner and, if the underwriter acknowledgement of receipt of Another commenter stated its belief does not reasonably believe that the that disclosure should be made to an disclosures, the failure to receive such official to whom the disclosures are acknowledgement must be documented, official that the underwriter reasonably addressed is capable of independently believes ‘‘has or will have’’ the requisite as well as what actions were taken to evaluating the disclosures, the attempt to obtain the acknowledgement, authority, instead of the standard that underwriter must make additional the underwriter believes ‘‘has’’ the in order for the underwriter to fulfill its efforts reasonably designed to inform obligation to document why it was authority to bind the issuer by the issuer or its employees or agent. contract.52 The commenter stated that unable to obtain the acknowledgement. due to the nature of these transactions, One commenter stated that it remains C. Representations to Issuers at the time of disclosures, there may not concerned that to provide disclosure to an official of the issuer that the Under the Notice, an underwriter be an official with such authority as the would be required to have a reasonable authority may not be granted until later. underwriter reasonably believes has authority to bind the issuer would not basis for providing representations and In Response Letter II, the MSRB noted material information in a certificate that that an official, such as a finance provide the issuer with sufficient knowledge of any existing conflicts.56 will be relied upon by the municipal director, who is expected to receive the entity issuer or other relevant parties to delegation of authority from the The commenter recommended that underwriters make disclosure to the an underwriting. One commenter stated governing body to bind the issuer could that one example of such a certificate reasonably be viewed as an acceptable issuer’s governing body and require underwriters to have actual knowledge, used by the MSRB in the Notice is recipient of disclosures for purposes of already regulated by tax laws and does the proposal so long as such expectation instead of a reasonable belief knowledge standard, as to whether the official not need additional regulation by the remains reasonable. MSRB.59 In Response Letter I, the MSRB Another commenter stated that the being presented with disclosures has the stated that it does not believe the Notice should state that the disclosure power to bind the issuer by contract. In disclosure requirement imposes an must be made in a response to a request Response Letter II, the MSRB responded additional regulatory burden on for proposals or in promotional that underwriters must document the underwriters. materials provided to an issuer, rather failure to receive acknowledgement, as than the proposed ‘‘at the earliest well as what actions were taken to D. Required Disclosures to Issuers attempt to obtain the acknowledgement, stages’’ standard, because the One commenter stated that the in order for the underwriter to fulfill its commenter believes that the proposed disclosure requirements, especially for standard is vague and ambiguous.53 routine transactions, should only be 54 Another commenter requested See SIFMA Letter II. The same commenter also imposed when the underwriter has clarification regarding the meaning of requested clarification in situations where the financing terms are determined in a short period of reason to believe that the issuer does not time, such as within a 24-hour window, and how have the knowledge or experience Nos. 65397 (September 26, 2011), 76 FR 60955 underwriters would satisfy the disclosure available to understand the (September 30, 2011) (withdrawing proposed MSRB requirements. In Response Letter II, the MSRB 60 Rule G–36 and interpretive guidance concerning stated that the timeframe set out in the proposal, transaction. Moreover, the commenter MSRB Rule G–36); and 65398 (September 26, 2011), which matches the timeframe for this same 76 FR 60958 (September 30, 2011) (withdrawing disclosure under guidance provided in connection 57 See NAIPFA Letter I. proposed interpretive notice concerning MSRB Rule with recent amendments to MSRB Rule G–23, on 58 See BDA Letter II. G–17). activities of financial advisors, is appropriate and 59 See SIFMA Letter I. 51 See NAIPFA Letter I and NAIPFA Letter II. should not be changed. 60 See BDA Letter I. One commenter suggested 52 See BDA Letter II. 55 See GFOA Letter II. factors to determine routine financings when 53 See id. 56 See NAIPFA Letter II. disclosures would not be necessary. See NAIPFA

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77873

stated that the proposal should be issuer, particularly considering that provides examples of complex clarified as to when the underwriter is under the Notice, as amended by financings, such as those involving required to provide disclosures on the Amendment No. 2, the underwriter variable rate demand obligations and material aspects of the financing need only have a reasonable basis for its swaps. The MSRB stated that it does not structures. The commenter also noted evaluation. consider it appropriate to require an that ‘‘issuer personnel responsible for One commenter stated its belief that issuer to inform the underwriter that the the issuance of municipal securities’’ the written risk disclosures imposed on issuer lacks knowledge or experience and ‘‘an official of the issuer whom the underwriters related to the financings with a financing. The MSRB stated its underwriter reasonably believes has the (including complex financings) are too belief that it is reasonable to require the authority to bind the issuer by contract broad and vague and do not take into underwriter to evaluate the level of account the role of the issuer’s with the underwriter’’ are not the knowledge and sophistication of the 61 municipal advisor, if any.63 Other same. Thus, the commenter stated its issuer. The Notice, as modified by belief that clarification should be commenters stated that the underwriter Amendment No. 2, would only require provided that these regulatory should not have disclosure the underwriter to have a reasonable requirements are imposed on the requirements when the issuer has underwriter only if the underwriter has engaged a financial advisor.64 Another basis for its evaluation. Further, the reason to believe that issuer personnel commenter stated that the underwriter MSRB stated that it agrees with the do not have the requisite knowledge or should not be required to evaluate commenter that disclosure on complex experience, regardless of whether the issuer personnel when the issuer has financings should be limited to material particular official that the underwriter retained a municipal advisor.65 In financial risks that are known to the reasonably believes to have the legal Response Letter I, the MSRB stated that underwriter and reasonably foreseeable. authority to contractually bind the underwriters are in the best position to The MSRB stated that the Notice, as issuer can be reasonably thought to have understand the material terms and risks modified by Amendment No. 2, shows the requisite knowledge and experience. associated with recommended such change. The Notice, as modified by Another commenter stated that the financings, and the burden should not Amendment No. 2, would also require Notice should be amended to take into be solely on municipal advisors to disclosures of the characteristics of a consideration the needs of ascertain such terms and risks. financing that are limited to the material unsophisticated municipal issuers, and One commenter noted that if written financial characteristics and would underwriters should be required to risk disclosures are to be required, then provide examples in the case of swaps. assess the knowledge and additional guidance and clarity is needed on the following: (1) References One commenter disagreed with the understanding of municipal issuers on a MSRB that the level of disclosure case-by-case basis.62 In Response Letter to ‘‘atypical or complex’’ financings; 66 should vary based on the issuer’s I, the MSRB stated that it does not (2) references to ‘‘all material risks and characteristics of the complex financial ability to bear the risks of the consider it unreasonable to require that 70 an underwriter evaluate the level of municipal securities financing’’; 67 (3) recommended financing. The knowledge and sophistication of the which issuer personnel must have the commenter stated its belief that a requisite level of knowledge and municipal entity with taxing power, Letter I. In Response Letter I, the MSRB stated that sophistication; 68 (4) if the issuer does who would be able to bear more risks while the factors are helpful, they do not address not have a financial advisor or internal of a financing, should not be ineligible the particular issuer personnel’s experience and personnel acting in a similar role, then for advice that is competent and knowledge, which are more relevant to the Notice. The MSRB stated that it would take the comment the issuer’s finance staff’s knowledge unimpaired by the broker’s own under advisement. Another commenter stated that and experience should be assessed by interests simply because the government in a routine financing, the Notice should require an underwriters; and (5) only material risks can tax the citizens to restore any loss. underwriter to disclose, in writing, information that are known to the underwriter and In Response Letter II, the MSRB regarding the transaction, should the issuer make such a request. See GFOA Letter II. The commenter reasonably foreseeable at the time of the conceded that the financial ability to stated that additional information on routine disclosure should be required.69 bear the risks of a recommended financings would be helpful. In Response Letter II, In Response Letter I, the MSRB stated financing would not normally be a the MSRB stated its belief that the provisions that it does not consider it appropriate relating to this disclosure are appropriate for the sufficient basis, by itself, for reasons described in Response Letter I and, to provide a more precise definition of determining the level of disclosure to therefore, no further modification is warranted. ‘‘complex municipal securities provide. The MSRB noted, however, the 61 Another commenter noted that to require an financing’’ since the Notice already proposal states three distinct factors that underwriter to determine who should be considered should be considered together in ‘‘issuer personnel’’ is an issue worth more 63 See SIFMA Letter I. consideration and discussion. See GFOA Letter II. coming to this determination. 64 See BDA Letter I and WM Letter I. In Response Letter II, the MSRB noted that it would 65 monitor disclosure practices and would engage in See SIFMA Letter I. Other commenters noted that a dialogue with industry participants and the 66 The commenter stated that these additional disclosure regarding derivatives is Commission to determine whether sufficient written disclosures may require detailed review by premature since there are pending counsel, which would be costly. The commenter improvements have occurred in the flow of rulemakings with the Commodity disclosures to decision-making personnel of issuers urged the Commission to carefully consider the or whether additional steps should be taken. costs relative to the potential benefits. Futures Trading Commission (‘‘CFTC’’) 62 See NAIPFA Letter I and NAIPFA Letter II. The 67 The commenter stated that this reference and the Commission that will apply to commenter reiterated that the proposal requires should be limited to financial risks and dealers recommending swaps or characteristics since the underwriter should not additional changes in order to protect over 50,000 security-based swaps to municipal infrequent and/or small, unsophisticated issuers of have to provide disclosures on legal issues. 71 municipal bonds. See NAIPFA Letter II. Another 68 The commenter stated that if the issuer has a entities. One commenter urged the commenter stated that there are many financial advisor or internal personnel serving the MSRB to work together with SEC and unsophisticated issuers who will benefit from the same role then no underwriter written disclosures CFTC to ensure that one set of disclosures. See AGFS Letter. The commenter should be required. The commenter further stated that underwriters may satisfy their disclosure stated that issuers should rely upon advice from 70 See PFM Letter. advisors who owe the issuers a fiduciary duty, requirements by communicating the disclosures to 71 instead of underwriters who may be in an the financial advisor or issuer internal personnel. See SIFMA Letter I; BDA Letter I; GFOA, Letter adversarial position. 69 See SIFMA Letter I. I.

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77874 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

definitions and rules apply to the F. Underwriter Compensation and New justify under Rule G–17 an unfair price municipal securities market.72 Issue Pricing to an issuer by balancing that unfair price with the fact that it may otherwise In Response Letter I, the MSRB noted 1. Excessive Compensation that it is aware of the ongoing have been fair to the issuer under the One commenter requested that, in the other fairness principles enunciated in rulemaking by the Commission and absence of disclosure and informed the proposal. CFTC and has taken care to ensure that consent, underwriters be prohibited any requirements of the Notice are from seeking reimbursements from bond G. Conflicts of Interest consistent with such rulemaking. In proceeds for expenditures made on 1. Payments To or From Third Parties Response Letter II, the MSRB disagreed behalf of the issuer for any expenses One commenter stated that with the commenter that the proposal is incurred by the underwriter.75 In premature for the reasons described in disclosures with respect to third-party Response Letter I, the MSRB noted that arrangements for the marketing of the Response Letter I. it disagrees with the commenter and issuer’s securities should be clarified as that MSRB Rule G–20 already precludes E. Underwriter Duties in Connection to the level of details.79 Further, the underwriters from seeking With Issuer Disclosure Documents commenter stated its belief that reimbursement for lavish expenditures, payments to and from affiliates of the Under the Notice, the underwriter especially from bond proceeds. Further, underwriters are not third-party must have a reasonable basis for its in Response Letter I, the MSRB noted payments since those payments would representations and information that state law would govern whether not cloud a party’s judgment when the provided to issuers in connection with such reimbursements are permissible. parties are related to each other, unlike the preparation by the issuer of its 2. Fair Pricing third parties. In Response Letter I, the disclosure documents. One commenter With respect to the representation that MSRB noted that the Notice, as stated its belief that the reasonable basis the price an underwriter pays in a modified by Amendment No. 2, would requirement is unreasonably broad.73 negotiated sale be fair and reasonable, require only the disclosure of third- The commenter stated that the Notice one commenter stated its belief that party marketing arrangements, not the should be revised to clarify that an such representation should be altered so particular terms. Moreover, while the underwriter may limit its responsibility that the price the underwriter pays is MSRB disagreed with the commenter for information provided by disclosing ‘‘not unreasonable.’’ 76 In Response that payments from affiliates do not to the issuer any limitations on the Letter I, the MSRB stated that the fair raise risks, the MSRB noted that the scope of the underwriter’s analysis and and reasonable pricing standard is no Notice, as modified by Amendment No. factual verification it performed. The different in many cases than the duties 2, would not require the disclosure of commenter further stated that such duty already imposed on underwriters by the amounts of such payments. Another commenter stated that the MSRB rules with respect to should extend only to material payment amount is an important underwriters’ customers and that it information. In Response Letter I, the variable for the issuer to consider and believes the approach in the Notice MSRB stated that it disagrees with the would encourage its members to further would require more robust disclosures commenter and believes that an question the underwriter about any by underwriters to issuers. In the underwriter should have a reasonable relevant third-party relationships and alternative, the commenter basis for its own representations set payments, which provides better recommended that the disclosure forth in the official statement, as well as transparency for the transaction.80 In should be changed to state that the a reasonable basis for the material Response Letter II, the MSRB stated its pricing is not necessarily the best information it provides to the issuer in agreement that such further inquiries pricing.77 In Response Letter II, the connection with the preparation of the can be made. In addition, the MSRB MSRB stated that it believes that the official statement. clarified that the third-party payments provisions relating to these disclosures to which the disclosure requirement One commenter also stated its belief are appropriate for the reasons under the Notice would apply are those that when an underwriter intends to described in Response Letter I and, that give rise to actual or potential assist in the preparation of an official therefore, no further modifications to conflicts of interest and typically would statement, that a disclosure should be these provisions are warranted. made to the issuer stating that the One commenter urged the not apply to third-party arrangements for products and services of the type underwriter can only be held liable Commission to require underwriters to that are routinely entered into in the where it can be shown that it did not act expressly represent in writing to the normal course of business, so long as with a reasonable belief that the issuer that the price paid for the issuer’s debt is fair, and specify the facts that any specific routine arrangement does information presented was truthful and not give rise to an actual or potential 74 support the representation.78 In complete. In Response Letter I, the conflict of interest. MSRB noted that the Notice would Response Letter II, the MSRB stated that provide that an underwriter must have its view is that, even if an underwriter 2. Profit-Sharing With Investors ‘‘a reasonable basis for the provides a fair price to an issuer for its One commenter sought clarification representations it makes, and other new issue offering, its fair practice that legitimate trading, such as when an material information it provides, to an duties under Rule G–17 are not thereby discharged because, among other things, issuer and to ensure that such 79 See SIFMA Letter I. See also IA Letter. The the many principles laid out in the representations and information are commenter cited examples where an underwriter proposal also must be addressed. would outsource certain routine tasks related to the accurate and not misleading.’’ Conversely, an underwriter cannot financing transactions, and sought clarification whether the Notice would encompass such payments for services rendered. The Commission 75 See id. received the IA Letter after the MSRB filed 72 See GFOA Letter I. 76 See NAIPFA Letter I and NAIPFA Letter II. Response Letter II, and thus, the MSRB has not 73 See id. 77 See NAIPFA Letter II. specifically responded to the commenter. 74 See NAIPFA Letter I. 78 See PFM Letter. 80 See GFOA Letter II.

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77875

underwriter sells a bond and later knowingly accept orders that do not MSRB to provide clarity on the repurchases the bond from a purchaser, meet the requirements of the retail order definition of ‘‘flipping’’ 87 and the is not included in the disclosure for period.84 In Response Letter II, the application of the suitability standard to profit sharing arrangements.81 In MSRB stated that it believes that the transactions proposed by an underwriter Response Letter II, the MSRB stated its commenter has misunderstood these to an issuer.88 belief that the language of the proposal provisions. The MSRB stated that the With respect to ‘‘flipping,’’ the MSRB appropriately reflects that the disclosure Notice provides that an underwriter that stated in Response Letter II that it would applies in cases where there exists an knowingly accepts an order that has reach out to other regulators and the arrangement to split or share profits been framed as a retail order when it is Commission in an attempt to develop a realized by an investor upon resale. not, would violate MSRB Rule G–17 if shared understanding of what such its actions are inconsistent with the ‘‘flipping’’ activities entail and potential 3. Credit Default Swaps issuer’s expectations regarding retail concerns regarding the implications of One commenter stated that it believes orders, but also provides that a dealer these activities. The MSRB noted that, that underwriters should not be that places an order that is framed as a to the extent these activities could be required to disclose hedging and risk qualifying retail order but in fact characterized as arrangements between management strategies and activities represents an order that does not meet the underwriter and an investor when the underwriter, in its role as a the qualification requirements to be purchasing new issue securities from dealer, issues or purchases credit treated as a retail order, violates its duty the underwriter according to which default swaps that reference the of fair dealing. The MSRB stated that profits realized from the resale by such obligations of the municipal issuer.82 these two provisions are entirely investor of the securities are directly or The commenter noted that should these consistent and appropriate, since in the indirectly split or otherwise shared with disclosures be required, a general first provision an underwriter is the underwriter, these activities may disclosure to the issuers that the receiving an order framed by a third already be subject to the proposal’s underwriters may engage in such party, whereas in the second provision, disclosure obligation with respect to activities should be sufficient. The a dealer (not limited to an underwriter) profit-sharing with investors. commenter objected to any provisions is itself placing and framing the order. In Response Letter II, the MSRB noted that would require underwriters to Therefore, the MSRB noted that it has that although the suitability comment is provide specific disclosures that may not modified these provisions. outside the scope of the proposal, the reveal identities of counterparties and MSRB will keep this suggestion under the underwriters’ hedging and risk I. Timing and Consistency advisement. management strategies. In Response One commenter noted that Another commenter urged further Letter I, the MSRB stated that it does not underwriters that may also be municipal consideration of the costs of disclosures believe that the disclosure requirement advisors will not be able to properly and weighing the costs against the would compromise counterparty evaluate the Notice until rules with potential benefits.89 In Response Letter relationships or deter the use of credit respect to municipal advisors have been II, the MSRB noted its disagreement that default swaps for legitimate risk approved and adopted by the it did not weigh the costs and benefits, management purposes. In addition, the Commission and MSRB.85 The and that the proposal in fact recognizes MSRB noted that the Notice would only commenter noted that many that many of the disclosures required require that a dealer that engages in the underwriters may be classified as under the proposal can be tailored, and issuance or purchase of a credit default municipal advisors under these yet-to- in some cases are not required at all, swap for which the underlying reference be-adopted rules and questioned how based on a number of relevant factors is an issuer for which the dealer is the underwriters’ obligations under the set out in the proposal and described in serving as underwriter, or an obligation Notice may relate to these rules. The greater detail in Response Letter I. Most of that issuer, must disclose the fact that commenter stated that many interested across-the-board disclosure provisions it does so to the issuer, not the terms of parties are abstaining from commenting in the proposal either require 83 the particular trades. on the proposal due to this uncertainty. transaction-specific or underwriter- H. Retail Order Periods The commenter stated its belief that, at specific disclosures of relevant conflicts a minimum, the portion of the proposal of interest or consist of standardized One commenter recommended that educational disclosures with respect to the Notice use a single standard of addressing an underwriter’s obligation which, underwriters most likely would requiring that the underwriter not to provide written risk disclosures should be withdrawn and refiled at a realize greater cost-effectiveness and reduced regulatory risk by making such 81 See BDA Letter II. later time. 82 See SIFMA Letter I. One commenter stated that a 90-day disclosures globally rather than on a 83 One commenter noted that the Notice provides implementation period is too short and case-by-case basis. The MSRB stated that if a dealer issues or purchases credit default requested a period no less than six that providing more information to swaps for which the reference obligor is the issuer months.86 In Response Letter I, the issuers would empower and provide to which the dealer is serving as an underwriter, the underwriter must disclose that fact to the issuer. MSRB stated that it believes that 90 considerable benefits to issuers. Further, See SIFMA Letter II. The commenter requested days is an adequate time period for the MSRB stated that it concedes that clarification that, in the case of a conduit issuer that underwriters to develop the required some underwriters may bear up-front issues bonds for multiple obligors or on a specific disclosures. costs in creating basic frameworks for project, whether disclosures need to be made to the the required disclosures for the various obligor(s) to satisfy the disclosure requirements. See J. Miscellaneous Comments SIFMA Letter II. In Response Letter II, the MSRB types of products they may offer their stated that the proposal only requires that credit Some commenters raised issues that issuer clients, but the on-going burden default swap disclosures be made to the issuers of are outside the scope of the proposal. should thereafter be considerably the municipal securities and not to any conduit For example, commenters asked the borrowers or other obligors. However, the MSRB stated that it would take under advisement the 87 See GFOA Letter I; GFOA Letter II and NAIPFA question of whether such disclosure should be 84 See BDA Letter II. Letter II. extended to any applicable obligors other than the 85 See SIFMA Letter I and SIFMA Letter II. 88 See GFOA Letter I and GFOA Letter II. issuer. 86 See SIFMA Letter I. 89 See SIFMA Letter II.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77876 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

reduced and the preparation of written underwritings of municipal securities approval or disapproval which would disclosures would become an inter- transactions (except as specified in the be facilitated by an oral presentation of related component of the necessary Notice). The Notice would impose views, data, and arguments, the documentation of the transaction. disclosures on underwriters regarding, Commission will consider, pursuant to One commenter sought clarification among other things, their role, Rule 19b-4, any request for an that the proposal would not apply to compensation arrangements, conflicts of opportunity to make an oral private placement agents.90 In Response interest, and representations made to presentation.93 Letter II, the MSRB responded that issuers of municipal securities. Interested persons are invited to while the Notice would not apply to Commenters that represent issuers and submit written data, views, and private placement agents, parties relying financial advisors generally support the arguments regarding whether the on this exception should be cautious in proposal and urge additional proposed rule change should be its application because the term ‘‘private disclosures, while commenters that disapproved by January 30, 2012. Any placement’’ is often used to describe represent dealers and underwriters person who wishes to file a rebuttal to transactions that are not recognized as believe the proposal should be any other person’s submission must file private placements for purposes of disapproved or required disclosures be that rebuttal by February 13, 2012. MSRB rules and other applicable law. modified to ease the requirements for Comments may be submitted by any of dealers. Based on the comments, the the following methods: IV. Proceedings To Determine Whether Commission believes that the proposal To Disapprove SR–MSRB–2011–09 and Electronic Comments raises concerns, among other things, as Grounds for Disapproval Under • to whether the disclosures are Use the Commission’s Internet Consideration appropriate and, if so, whether the comment form (http://www.sec.gov/ The Commission is instituting disclosures are sufficiently balanced to rules/sro.shtml); or • proceedings pursuant to Section protect investors and municipal entities Send an email to rule- 19(b)(2)(B) of the Act 91 to determine by assisting issuers and their advisors in [email protected]. Please include File whether the proposed rule change evaluating underwriters and the Number SR–MSRB–2011–09 on the should be disapproved. Institution of transactions proposed by the subject line. such proceedings appears appropriate at underwriters without being overly Paper Comments this time in view of the legal and policy burdensome for underwriters. • issues raised by the proposal, as The Commission believes these Send paper comments in triplicate discussed below. Institution of concerns raise questions as to whether to Elizabeth M. Murphy, Secretary, disapproval proceedings does not the MSRB’s proposal is consistent with Securities and Exchange Commission, indicate that the Commission has the requirements of Section 15B(b)(2)(C) 100 F Street NE., Washington, DC reached any conclusions with respect to of the Act, including whether the 20549–1090. any of the issues involved. Rather, as disclosures outlined in the notice would All submissions should refer to File described in greater detail below, the prevent fraudulent and manipulative Number SR–MSRB–2011–09. This file Commission seeks and encourages acts and practices, promote just and number should be included on the interested persons to comment on the equitable principles of trade, foster subject line if email is used. To help the proposed rule change to inform the cooperation and coordination with Commission process and review your Commission’s analysis whether to persons facilitating transactions in comments more efficiently, please use approve or disapprove the proposed municipal securities and municipal only one method. The Commission will rule change. financial products, remove impediments post all comments on the Commission’s Pursuant to Section 19(b)(2)(B) of the to and perfect the mechanism of a free Internet Web site (http://www.sec.gov/ Act, the Commission is providing notice and open market in municipal securities rules/sro.shtml). Copies of the of the grounds for disapproval under and municipal financial products, and, submission, all subsequent consideration. In particular, Section in general, protect investors, municipal amendments, all written statements 15B(b)(2)(C) of the Act 92 requires, entities, obligated persons, and the with respect to the proposed rule among other things, that the rules of the public interest. The Commission change that are filed with the MSRB shall be designed to prevent believes the issues raised by the Commission, and all written fraudulent and manipulative acts and proposed rule change can benefit from communications relating to the practices, to promote just and equitable additional consideration and evaluation proposed rule change between the principles of trade, to foster cooperation in light of the requirements of Section Commission and any person, other than and coordination with persons 15B(c)(2)(C) of the Act. those that may be withheld from the facilitating transactions in municipal public in accordance with the V. Procedure: Request for Written provisions of 5 U.S.C. 552, will be securities and municipal financial Comments products, to remove impediments to and available for Web site viewing and perfect the mechanism of a free and The Commission requests that printing in the Commission’s Public open market in municipal securities and interested persons provide written Reference Room, 100 F Street NE., municipal financial products, and, in submissions of their views, data, and Washington, DC 20549, on official business days between the hours of 10 general, to protect investors, municipal arguments with respect to the concerns a.m. and 3 p.m. Copies of such filing entities, obligated persons, and the identified above, as well as any others public interest. they may have with the proposal. In particular, the Commission invites the 93 Section 19(b)(2) of the Act, as amended by the The MSRB’s proposal would interpret Securities Act Amendments of 1975, Pub. L. 94–29 the application of MSRB Rule G–17 written views of interested persons (June 4, 1975), grants the Commission flexibility to applicable to dealers acting in the concerning whether the proposed rule determine what type of proceeding—either oral or capacity of underwriters in negotiated change is inconsistent with Section notice and opportunity for written comments—is 15B(b)(2)(C) or any other provision of appropriate for consideration of a particular proposal by a self-regulatory organization. See 90 See SIFMA Letter II. the Act, or the rules and regulation Securities Act Amendments of 1975, Senate Comm. 91 15 U.S.C. 78s(b)(2)(B). thereunder. Although there do not on Banking, Housing & Urban Affairs, S. Rep. No. 92 15 U.S.C. 78o–4(b)(2)(C). appear to be any issues relevant to 75, 94th Cong., 1st Sess. 30 (1975).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77877

also will be available for inspection and For the Commission, by the Division of A. Self-Regulatory Organization’s copying at the principal office of the Trading and Markets, pursuant to delegated Statement of the Purpose of, and 5 Exchange. All comments received will authority. Statutory Basis for, the Proposed Rule be posted without change; the Kevin M. O’Neill, Change Deputy Secretary. Commission does not edit personal 1. Purpose identifying information from [FR Doc. 2011–32067 Filed 12–13–11; 8:45 am] submissions. You should submit only BILLING CODE 8011–01–P The Exchange’s current list of routing information that you wish to make options are codified in Rule 11.9(b)(3). available publicly. All submissions In this filing, the Exchange proposes to SECURITIES AND EXCHANGE should refer to File Number SR–MSRB– amend several routing options COMMISSION 2011–09 and should be submitted on or contained in Rule 11.9(b)(3) to allow before January 30, 2012. Rebuttal [Release No. 34–65911; File No. SR–EDGA– Users more discretion if shares remain comments should be submitted by 2011–40] unexecuted after routing. In particular, February 13, 2012. Rule 11.9(b)(3) is proposed to be Self-Regulatory Organizations; EDGA amended to provide that Users may For the Commission, by the Division of Exchange, Inc.; Notice of Filing of elect that any remainder of an order be Trading and Markets, pursuant to delegated Proposed Rule Change To Amend posted to the EDGX Exchange, Inc. authority.94 EDGA Rule 11.9 (‘‘EDGX’’) for any of the routing options Kevin M. O’Neill, listed in the rule, except those in December 8, 2011. paragraphs (a) and (n)–(q) 4. Deputy Secretary. Pursuant to Section 19(b)(1) of the [FR Doc. 2011–32087 Filed 12–13–11; 8:45 am] Currently, Rule 11.9(b)(3)(d) provides Securities Exchange Act of 1934 that the INET routing strategy checks BILLING CODE 8011–01–P 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, the System for available shares and then notice is hereby given that on December is sent to Nasdaq. If shares remain 2, 2011, the EDGA Exchange, Inc. unexecuted after routing, they are SECURITIES AND EXCHANGE (‘‘Exchange’’ or ‘‘EDGA’’) filed with the posted on the Nasdaq book. The COMMISSION Securities and Exchange Commission Exchange proposes to modify this (‘‘Commission’’) the proposed rule language to subject this posting to change as described in Items I and II [Release No. 34–65917; File No. SR–Phlx– Nasdaq to a User instruction as below, which Items have been prepared 2011–143] proposed in the introductory paragraph by the Exchange. The Commission is of Rule 11.9(b)(3). This User instruction Self-Regulatory Organizations; publishing this notice to solicit would thus enable the remainder to post NASDAQ OMX PHLX LLC; Notice of comments on the proposed rule change to EDGX instead of Nasdaq. Withdrawal of Proposed Rule Change from interested persons. Currently, Rule 11.9(b)(3)(j) provides To Modify Commentary .01 to Rule I. Self-Regulatory Organization’s that the ROLF routing strategy checks 1009 Regarding Criteria for Listing an Statement of the Terms of Substance of the System for available shares and then Option on an Underlying Covered the Proposed Rule Change is sent to LavaFlow ECN. The Exchange Security The Exchange proposes to amend proposes to modify this strategy to state December 8, 2011. certain existing routing options that any remainder will be posted to contained in Rule 11.9 to provide LavaFlow ECN, unless otherwise On October 24, 2011, NASDAQ OMX Users 3 with more flexible routing instructed by the User. This User PHLX LLC (‘‘Phlx’’) filed with the options. The text of the proposed rule instruction would thus enable the User Securities and Exchange Commission change is available on the Exchange’s to direct the remainder to post to EDGX (‘‘Commission’’) a proposed rule change Web site at http://www.directedge.com, instead of LavaFlow ECN. pursuant to Section 19(b)(1) of the at the Exchange’s principal office and at Rule 11.9(b)(3)(m) provides that the 1 Securities Exchange Act of 1934 and the Public Reference Room of the IOCT routing option checks the System 2 Rule 19b–4 thereunder to amend Commission. for available shares and then is sent Commentary .01 to Rule 1009 to modify sequentially to destinations on the the criteria for listing options on an II. Self-Regulatory Organization’s System routing table. If shares remain underlying covered security. Notice of Statement of the Purpose of, and unexecuted after routing, they are sent the proposed rule change was published Statutory Basis for, the Proposed Rule as an immediate or cancel (IOC) 5 order in the Federal Register on November 14, Change to EDGX. If shares further remain 2011.3 The Commission received two In its filing with the Commission, the unexecuted, they are posted on the comment letters on the proposed rule Exchange included statements EDGA Book, unless otherwise instructed change.4 On December 2, 2011, Phlx concerning the purpose of, and basis for, by the User. The Exchange proposes to withdrew the proposed rule change the proposed rule change and discussed modify this strategy to delete the phrase (SR–Phlx–2011–143). any comments it received on the ‘‘sent as an IOC order’’ since a Day proposed rule change. The text of these Order 6 or an IOC order could be sent to 94 17 CFR 200.30–3(a)(57). statements may be examined at the EDGX. This change would thus enable 1 15 U.S.C. 78s(b)(1). places specified in Item IV below. The 2 17 CFR 240.19b–4. self-regulatory organization has 4 Routing options listed in Rules 11.9(b)(3)(a) and 3 See Securities Exchange Act Release No. 65706 prepared summaries, set forth in (n)–(q) are not altered as a result of this amendment. (November 8, 2011), 76 FR 70520. Sections A, B and C below, of the most The routing option in Rule 11.9(b)(3)(a) already 4 See letters to Elizabeth M. Murphy, Secretary, significant aspects of such statements. posts to EDGX and no amendment to the rule is Commission, from Jenny L. Klebes, Senior Attorney, needed as no discretion is provided to the User. The Legal Division, Chicago Board Options Exchange, routing options in Rules 11.9(b)(3)(n)–(q) do not 5 dated November 25, 2011; and Janet McGinness, 17 CFR 200.30–3(a)(12). have the option to post the remainder of an order Senior Vice President—Legal & Corporate Secretary, 1 15 U.S.C. 78s(b)(1). to EDGX. Legal & Government Affairs, NYSE Euronext, dated 2 17 CFR 240.19b–4. 5 As defined in Rule 11.5(b)(1). December 1, 2011. 3 As defined in Rule 1.5(cc). 6 As defined in Rule 11.5(b)(2).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77878 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

the User to direct the remainder to post the option of posting the remainder of comments more efficiently, please use to EDGX instead of EDGA. the order to EDGX. only one method. The Commission will The Exchange also proposes to amend post all comments on the Commission’s B. Self-Regulatory Organization’s Rule 11.9(b)(3)(a), which currently Internet Web site (http://www.sec.gov/ Statement on Burden on Competition states that any shares that remain rules/sro.shtml). Copies of the unexecuted after routing are posted to The proposed rule change does not submission, all subsequent ‘‘the EDGX Exchange book’’, to impose any burden on competition that amendments, all written statements eliminate the word ‘‘Exchange’’. In light is not necessary or appropriate in with respect to the proposed rule of the routing options modifications furtherance of the purposes of the Act. change that are filed with the proposed herein, paragraph 11.9(b)(3) Commission, and all written C. Self-Regulatory Organization’s would also be modified to define EDGX communications relating to the Statement on Comments on the at the outset and state that except for the proposed rule change between the Proposed Rule Change Received From routing options provided in paragraphs Commission and any person, other than Members, Participants, or Others (a) and (n)–(q), Users can post any those that may be withheld from the remainder of an order to EDGX. The Exchange has not solicited, and public in accordance with the Accordingly, the reference to the word does not intend to solicit, comments on provisions of 5 U.S.C. 552, will be ‘‘Exchange’’ in Rule 11.9(b)(3)(a) would this proposed rule change. The available for Web site viewing and be redundant. Exchange has not received any printing in the Commission’s Public The Exchange believes the proposed unsolicited written comments from Reference Room on official business modification of the routing options members or other interested parties. days between 10 a.m. and 3 p.m. Copies described above will provide market III. Date of Effectiveness of the of the filing will also be available for participants with greater flexibility in inspection and copying at the principal routing orders without having to Proposed Rule Change and Timing for Commission Action office of the Exchange. All comments develop their own complicated routing received will be posted without change; strategies. In addition, the varied Within 45 days of the date of the Commission does not edit personal routing options allow Users to take publication of this notice in the Federal identifying information from primary advantage of EDGA’s low cost Register or within such longer period (i) submissions. You should submit only fee structure to remove liquidity on as the Commission may designate up to information that you wish to make EDGA and if applicable, other 90 days of such date if it finds such available publicly. All submissions destinations. Yet, the User retains the longer period to be appropriate and should refer to File Number SR–EDGA– option of posting the remainder of the publishes its reasons for so finding or 2011–40 and should be submitted on or order to EDGX. (ii) as to which the self-regulatory before January 4, 2012. Assuming the Commission approves organization consents, the Commission For the Commission, by the Division of the proposed rule change, the Exchange will: Trading and Markets, pursuant to delegated will notify its Members in an (a) By order approve or disapprove authority.8 information circular of the exact the proposed rule change, or Kevin M. O’Neill, implementation date(s) of this rule (b) Institute proceedings to determine Deputy Secretary. change, which will be no later than whether the proposed rule change [FR Doc. 2011–32066 Filed 12–13–11; 8:45 am] March 31, 2012. should be disapproved. BILLING CODE 8011–01–P 2. Statutory Basis IV. Solicitation of Comments The Exchange believes that the Interested persons are invited to SECURITIES AND EXCHANGE proposed rule change is consistent with submit written data, views, and COMMISSION Section 6(b)(5) of the Act,7 which arguments concerning the foregoing, requires the rules of an exchange to including whether the proposed rule [Release No. 34–65914; File No. SR–CBOE– promote just and equitable principles of change is consistent with the Act. 2011–114] trade, to remove impediments to and Comments may be submitted by any of perfect the mechanism of a free and the following methods: Self-Regulatory Organizations; open market and a national market Chicago Board Options Exchange, system and, in general, to protect Electronic Comments Incorporated; Notice of Proposed Rule investors and the public interest. The • Use the Commission’s Internet Change Related to Complex Order proposed change to introduce the comment form http://www.sec.gov/ Processing in Hybrid 3.0 Classes routing options described above will rules/sro.shtml); or • December 8, 2011. provide market participants with greater Send an email to rule- Pursuant to Section 19(b)(1) of the flexibility in routing orders without [email protected]. Please include File Securities Exchange Act of 1934 (the having to develop their own order No. SR–EDGA–2011–40 on the subject ‘‘Act’’),1 and Rule 19b–4 thereunder,2 routing strategies. In addition, it will line. notice is hereby given that on November provide additional clarity and Paper Comments 29, 2011, the Chicago Board Options specificity to the Exchange’s rulebook • Exchange, Incorporated (‘‘Exchange’’ or regarding routing strategies and will Send paper comments in triplicate ‘‘CBOE’’) filed with the Securities and further enhance transparency with to Elizabeth M. Murphy, Secretary, Exchange Commission (the respect to Exchange routing offerings. Securities and Exchange Commission, ‘‘Commission’’) the proposed rule Finally, the varied routing options allow 100 F Street NE., Washington, DC change as described in Items I and II, Users to take primary advantage of 20549–1090. which Items have been prepared by the EDGA’s low cost fee structure to remove All submissions should refer to File Exchange. The Commission is liquidity on EDGA and if applicable, Number SR–EDGA–2011–40. This file other destinations. Yet, the User retains number should be included on the 8 17 CFR 200.30–3(a)(12). subject line if email is used. To help the 1 15 U.S.C. 78s(b)(1). 7 15 U.S.C. 78f(b)(5). Commission process and review your 2 17 CFR 240.19b–4.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77879

publishing this notice to solicit currently performed by certain execute against those individual orders comments on the proposed rule change designated Lead Market-Makers. residing in the EBook provided the from interested persons. Under the proposed rule change, for complex order can be executed in full each class trading on the Hybrid 3.0 (or in a permissible ratio) by the orders I. Self-Regulatory Organization’s Platform, the Exchange may determine in the EBook and provided the orders in Statement of the Terms of Substance of to not allow marketable complex orders the EBook are priced equal to or better the Proposed Rule Change entered into COB and/or COA to than the individual quotes residing in The Exchange is proposing to amend automatically execute with the the EBook. its electronic complex order rules. The individual quotes residing in the Second, complex orders that are text of the rule proposal is available on EBook.4 In such classes, the allocation marketable against each other will the Exchange’s Web site (http:// of such marketable complex orders automatically execute provided the www.cboe.org/legal), at the Exchange’s against orders residing in the EBook and execution is at a net price that has Office of the Secretary and at the other complex orders shall be based on priority over the individual orders and Commission. the best net price(s), as is currently the quotes residing in the EBook. As noted II. Self-Regulatory Organization’s case under the existing rule. At the same above, the allocation of a complex order Statement of the Purpose of, and net price, multiple orders will be will otherwise be consistent with the Statutory Basis for, the Proposed Rule allocated subject to the existing existing rules of trading priority Change applicable COB or COA allocation otherwise applicable to COB or COA.6 algorithm,5 subject to the following: Third, to the extent that a marketable In its filing with the Commission, the First, a complex order submitted to complex order cannot automatically self-regulatory organization included COB or COA, as applicable, that is execute when it is routed to COB or statements concerning the purpose of marketable against the individual orders after being subject to COA because there and basis for the proposed rule change residing in the EBook will automatically are individual quotes residing in the and discussed any comments it received EBook that have priority, any part of the on the proposed rule change. The text 4 Pursuant to Rule 6.53C.01, any determination by order that may be executed will be of those statements may be examined at the Exchange to designate a class for complex order executed automatically and the part of the places specified in Item IV below. execution in this manner will be announced to the the order that cannot automatically The Exchange has prepared summaries, membership via Regulatory Circular. 5 execute will be routed on a class-by- set forth in sections A, B, and C below, For COB, at the same net price, (i) individual orders and quotes in the EBook have first priority, class basis to PAR or, at the order entry of the most significant parts of such provided the complex order can be executed in full firm’s discretion, to the order entry statements. (or in a permissible ratio), with multiple orders and quotes at the same price allocated based on the firm’s booth. If an order is not eligible A. Self-Regulatory Organization’s rules of trading priority otherwise applicable to to route to PAR, then the remaining Statement of the Purpose of, and the incoming electronic orders in the individual balance will be cancelled. Statutory Basis for, the Proposed Rule component legs; and (ii) complex orders in COB have second priority, with multiple complex orders Finally, fourth, to the extent that a Change at the same price allocated based on the rules of complex order resting in COB becomes 1. Purpose trading priority otherwise applicable to incoming marketable and cannot automatically electronic orders in the individual series legs or execute in full (or in a permissible Currently, complex orders that are such other algorithm as the Exchange may ratio), the full order will be subject to submitted to the electronic complex designate. For COA, at the same net price, (i) individual orders and quotes residing in the EBook COA (and the process for COA order book (‘‘COB’’) or the complex have first priority, provided the complex order can described above). Having the system order RFR auction process (‘‘COA’’) be executed in full (or in a permissible ratio), with automatically initiate a COA once such automatically execute against individual multiple orders allocated pursuant to the Ultimate a complex order resting in COB becomes orders and quotes residing in the Match Algorithm (‘‘UMA’’) allocation described in Rule 6.45A or 6.45B, as applicable; (ii) public marketable provides an opportunity for electronic book (‘‘EBook’’) provided the customer complex orders resting in COB before, or other market participants to match or complex order can be executed in full that are received during the COA auction, and improve the net price and allows for an or in a permissible ratio, and against public customer COA responses collectively have opportunity for an automatic execution other complex orders represented in second priority, with multiple orders/responses allocated based on time priority; (iii) non-public before a marketable complex order is COB or COA (as applicable). customer orders resting in COB before the COA routed for manual handling to PAR or The Exchange is proposing to revise auction have third priority, with multiple orders a booth.7 As noted above, after being the operation of COB and COA as it allocated pursuant to the UMA allocation described relates to options classes trading on the in Rule 6.54A or 6.45B, as applicable; and (iv) non- public customer orders resting in COB that are 6 See note 5, supra. Hybrid 3.0 Platform, which currently received during the COA auction and non-public 7 The Exchange notes that, in these circumstances only includes options on the S&P 500 customer COA responses collectively have fourth when a resting complex order becomes marketable, Index (option symbol SPX). The priority, with multiple orders/responses allocated COA will automatically initiate regardless of ‘‘Hybrid 3.0 Platform’’ is an electronic based on the capped UMA (‘‘CUMA’’) allocation whether a Trading Permit Holder has requested that described in Rule 6.45A or 6.45B, as applicable. See the complex order be COA’d pursuant to Rule trading platform on the Hybrid Trading Rule 6.53C(c)(ii) and (d) and Interpretation and 6.53C.04. In this regard, the Exchange notes that, System 3 that allows one or more Policy .09. The Exchange notes that the currently, all of its Trading Permit Holders have quoters to submit electronic quotes aforementioned electronic allocation algorithms for elected to have their COA-eligible orders COA’d. In which represent the aggregate Market- COB and COA are consistent with Rule 6.45A(b)(ii) addition, the Exchange notes that other markets and 6.45B(b)(ii) (which relate to the allocation of have programs in place that provide for the Maker quoting interest in a series for the orders represented in open outcry and generally automatic auctioning of complex orders. See, e.g., trading crowd. The quotes are allow a Trading Permit Holder holding a complex NASDAQ OMX PHLX LLC (‘‘Phlx’’) Rule represented, along with other orders, in order to trade at the same price as the trading crowd 1080(e)(i)(A) which, among other things, provides the EBook. The function of generating and public customer limit order book, provided at that a complex order live auction (‘‘COLA’’) will least one leg of the complex order betters the initiate if the Phlx system receives a complex order the aggregate trading crowd quote is corresponding bid (offer) in the public customer that improves the Phlx complex order best debit or limit order book by at least one minimum trading credit price respecting the specific complex order 3 The ‘‘Hybrid Trading System’’ refers to the increment (i.e., $0.10, $0.05 or $0.01, as applicable) strategy that is the subject of the complex order. Exchange’s trading platform that allows Market- or a $0.01 increment, which increment will be During a COLA, Phlx market participants may bid Makers to submit electronic quotes in their determined by the Exchange on a class-by-class and offer against the COLA-eligible order pursuant appointed classes. See Rule 1.1(aaa). basis). to the Phlx Rule.

VerDate Mar<15>2010 19:11 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77880 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

subject to COA, any part of the order contracts represent the Lead Market-Maker of series, and when considering all that may be executed will be executed quote). The best derived net leg market price series across a Market-Makers [sic] ¥ automatically and the part of the order would therefore be $5.15 ($27.90 $22.75). If various appointed classes, this can that cannot automatically execute will the Lead Market-Maker bid in the SPX Dec include millions of series. Accordingly, 1255 call series is thereafter updated to be routed on a class-by-class basis to $22.90 (with a size of 100 contracts), the it is possible that the Market-Maker PAR or, at the order entry firm’s derived net leg market price would become could unintentionally trade with discretion, to the order entry firm’s $5.00 ($27.90¥$22.90) and the full size of another Market-Maker or market booth. If an order is not eligible to route the resting complex order will become participant via COB or COA before a to PAR, then the remaining balance will marketable but cannot automatically execute. quote update(s) in the individual series be cancelled. As a result, the full size (75 units) of the leg is processed.8 The result is The following examples illustrate the resting complex order would be subject to executions at price(s) that were not operation of the proposed system COA. At the conclusion of COA, any part of intended and, at times, that may also be functionality: the complex order that may be executed at extreme or potentially erroneous against orders in the EBook and other Example 1: Assume an incoming market complex orders will be automatically prices. complex order for 75 units is submitted to executed. Any part of the order that is The proposed rule change is designed COA, where the strategy involves the marketable and cannot automatically execute to protect the Lead Market-Maker that purchase of SPX Dec 1250 calls and sale of (because of Lead Market-Maker quotes in an generate [sic] quotes in SPX, as well as SPX Dec 1255 calls. At the conclusion of individual series leg(s)) will be routed on a other Market-Makers and other market COA, assume the best offer in the individual class-by-class basis to PAR or, at the order participants that may trade against these SPX Dec 1250 call series is $27.90 for a size entry firm’s discretion, to the order entry quotes with complex orders at extreme of 50 contracts made up only of orders firm’s booth. If an order is not eligible to or potentially erroneous prices. The resting in the EBook, and the next best offer route to PAR, then the remaining balance Exchange believes the proposed system is $28.20 for 100 contracts made up only of will be cancelled. To the extent any part of functionality is fair and reasonable with Lead Market-Maker quotes. Also assume the the complex order is not marketable, it will best bid in the individual SPX Dec 1255 call continue resting in COB. respect to classes trading on the Hybrid 3.0 Platform in particular, where the series is $22.90 with a size of 50 contracts Over time, the Exchange has quotes represent the aggregate Market- made up only of orders resting in the EBook, introduced various enhancements to the and the next best bid is $22.50 made up only Maker quoting interest in a series for the operation of COB and COA, which of Lead Market-Maker quotes. The best trading crowd but the responsibility for enhancements the Exchange believes are derived net leg market price would therefore generating the quotes and satisfying ¥ be $5.00 ($27.90 $22.90). Also assume that generally designed to make the trades against those quotes in relation to there is a COA response for 10 units at a net processes operate more efficiently and executions occurring through COB or price of $4.90. The incoming market order to effectively, as well as to avoid COA rests with the designated Lead purchase 75 units of the call/put strategy executions at extreme and potentially would receive a partial execution of 60 units: Market-Maker(s) that generates the erroneous prices. The Exchange believes quote. The functionality will mitigate 10 units would execute at a net debit price the instant proposed rule change is of $4.90 against the COA response (which the risk borne only by the Lead Market- has priority over the individual orders net another example of such an Makers that a complex order may priced at $5.00), and 50 units at a net debit enhancement. The Exchange believes execute against a quote in an individual price of $5.00 against the orders resting in the proposed system functionality will series leg at an extreme or potentially each of the individual series legs (the permit more efficient and effective erroneous price. The Exchange believes execution is in a permissible ratio and the execution of complex orders in our that the proposed system functionality orders in the EBook are priced equal to or electronic trading environment. In is a reasonable limitation on Hybrid 3.0 better than the individual quotes residing in addition, the Exchange believes the the EBook). Because the remaining 15 units Market-Maker quotations that will change will assist in preventing appropriately address an operational are only marketable against the quotes in the complex orders from automatically individual series legs at a net price of $5.70 issue that would discourage Market- ($28.20¥$22.50), the 15 units would be executing against the individual quotes Makers, particularly Lead Market- routed to PAR or, at the order entry firm’s residing in the individual series legs at Makers, from offering additional discretion, to the order entry firm’s booth, for potentially erroneous prices, liquidity in the individual series legs. It manual handling. If the order would particularly when there are momentary also will prevent other Market-Makers otherwise route to PAR but is not eligible to or inadvertent discrepancies that occur and other market participants from route to PAR, then the remaining 15 units between the pricing of an individual receiving executions at extreme or will be cancelled. series leg that is a component of a potentially erroneous prices.9 Example 2: Assume a complex order for 75 complex order strategy. The Exchange units with a net debit price of $5.00 is resting recognizes that Market-Makers could 2. Statutory Basis in COB, where the strategy involves the encounter difficulties maintaining The proposed rule change is purchase of SPX Dec 1250 calls and sale of quotations in the individual series legs consistent with Section 6(b) of the Act 10 SPX Dec 1255 calls. By virtue of the fact that it is resting the COB, the complex order is not if the quotes are allowed to execute in general and furthers the objectives of marketable—meaning there are no orders or against complex orders in COB or COA. 8 quotes within the derived net leg market In particular, Market-Maker pricing Indeed, the Exchange has long recognized the systems automatically update the price need to ameliorate small timing differences in price or other complex orders within COB processing Market-Maker quotations updates by against which the resting complex order may of a Market-Maker’s quotations when delaying Market-Maker quotations from executing trade. Assume there are no other complex there is a move in the price of the against each other for up to one second. See, e.g., orders representing in the COB for the underlying stock, index, component Exchange Rule 6.45B(d). strategy and also assume the best offer in the securities or related futures. When such 9 The Exchange has determined to limit the application of this proposed rule change to Hybrid individual SPX Dec 1250 call series is a change occurs, a Market-Maker will $27.90, with a size of 100 contracts (50 3.0 classes. In the future, the Exchange may contracts are orders and 50 contracts need to send updates for its quotes all determine to expand the alternate process of not [sic] the individual series legs it is permitting complex orders to trade against Market- represent the Lead Market-Maker quote) and Maker quotes to other option classes. Any such the best bid in the individual SPX Dec 1255 quoting in each of the Market-Maker’s expansion would be the subject of a separate rule call series is $22.75, with a size of 100 appointed classes. In the SPX options change filing. contracts (50 contracts are orders and 50 class alone this can include thousands 10 15 U.S.C. 78f(b).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77881

Section 6(b)(5) of the Act 11 in particular Securities and Exchange Commission, ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 in that it should promote just and 100 F Street NE., Washington, DC notice is hereby given that, on equitable principles of trade, serve to 20549–1090. November 25, 2011, the International remove impediments to and perfect the All submissions should refer to File Securities Exchange, LLC (the mechanism of a free and open market Number SR–CBOE–2011–114. This file ‘‘Exchange’’ or the ‘‘ISE’’) filed with the and a national market system, and number should be included on the Securities and Exchange Commission protect investors and the public interest. subject line if email is used. To help the (the ‘‘Commission’’) the proposed rule The Exchange believes that the Commission process and review your change as described in Items I and II proposed rule change will facilitate the comments more efficiently, please use below, which Items have been prepared orderly execution of complex orders in only one method. The Commission will by the Exchange. The Commission is our Hybrid 3.0 electronic trading post all comments on the Commission’s publishing this notice to solicit environment. Internet Web site (http://www.sec.gov/ comments on the proposed rule change B. Self-Regulatory Organization’s rules/sro.shtml). Copies of the from interested persons. Statement on Burden on Competition submission, all subsequent I. Self-Regulatory Organization’s amendments, all written statements CBOE does not believe that the Statement of the Terms of Substance of with respect to the proposed rule proposed rule change will impose any the Proposed Rule Change change that are filed with the burden on competition not necessary or Commission, and all written The ISE is proposing to amend its appropriate in furtherance of the Schedule of Fees regarding the purposes of the Act. communications relating to the proposed rule change between the Exchange’s API or login fees. The text of C. Self-Regulatory Organization’s Commission and any person, other than the proposed rule change is available on Statement on Comments on the those that may be withheld from the the Exchange’s Web site (http:// Proposed Rule Change Received From public in accordance with the www.ise.com), at the principal office of Members, Participants, or Others provisions of 5 U.S.C. 552, will be the Exchange, and at the Commission’s Public Reference Room. The Exchange neither solicited nor available for inspection and copying in received comments on the proposal. the Commission’s Public Reference II. Self-Regulatory Organization’s Room, 100 F Street, NE., Washington, Statement of the Purpose of, and III. Date of Effectiveness of the DC 20549, on official business days Statutory Basis for, the Proposed Rule Proposed Rule Change and Timing for between the hours of 10 a.m. and 3 p.m. Change Commission Action Copies of such filing also will be In its filing with the Commission, the Within 45 days of the date of available for inspection and copying at self-regulatory organization included publication of this notice in the Federal the principal office of CBOE. All statements concerning the purpose of, Register or within such longer period comments received will be posted and basis for, the proposed rule change up to 90 days of such date (i) as the without change; the Commission does and discussed any comments it received Commission may designate if it finds not edit personal identifying on the proposed rule change. The text such longer period to be appropriate information from submissions. You of these statements may be examined at and publishes its reasons for so finding should submit only information that the places specified in Item IV below. or (ii) as to which the self-regulatory you wish to make available publicly. All The self-regulatory organization has organization consents, the Commission submissions should refer to File prepared summaries, set forth in will: Number SR–CBOE–2011–114 and (A) By order approve or disapprove sections A, B and C below, of the most should be submitted on or before significant aspects of such statements. such proposed rule change, or January 4, 2012. (B) Institute proceedings to determine A. Self-Regulatory Organization’s whether the proposed rule change For the Commission, by the Division of Trading and Markets, pursuant to delegated Statement of the Purpose of, and should be disapproved. authority.12 Statutory Basis for, the Proposed Rule IV. Solicitation of Comments Kevin M. O’Neill, Change Interested persons are invited to Deputy Secretary. 1. Purpose submit written data, views, and [FR Doc. 2011–32034 Filed 12–13–11; 8:45 am] The ISE is proposing to amend its arguments concerning the foregoing, BILLING CODE 8011–01–P Schedule of Fees regarding the including whether the proposed rule Exchange’s API or login fees. ISE change is consistent with the Act. currently charges its Members a fee for Comments may be submitted by any of SECURITIES AND EXCHANGE each login that a Member utilizes for the following methods: COMMISSION quoting or order entry, with a lesser Electronic Comments charge for logins used for the limited [Release No. 34–65916; File No. SR–ISE– purpose of ‘‘listening’’ to broadcast • Use the Commission’s Internet 2011–80] messages.3 The Exchange currently has comment form (http://www.sec.gov/ the following categories of authorized Self-Regulatory Organizations; rules/sro.shtml); or logins: (1) Quoting, order entry and • International Securities Exchange, Send an email to rule- listening (allowing the user to enter LLC; Notice of Filing and Immediate [email protected]. Please include File quotes, orders, and perform all other Effectiveness of Proposed Rule Number SR–CBOE–2011–114 on the miscellaneous functions, such as setting Change Relating to API Fees subject line. parameters and pulling quotes); (2) Paper Comments December 8, 2011. • Pursuant to Section 19(b)(1) of the 1 15 U.S.C. 78s(b)(1). Send paper comments in triplicate 2 Securities Exchange Act of 1934 (the 17 CFR 240.19b–4. to Elizabeth M. Murphy, Secretary, 3 See Exchange Act Release No. 53522 (March 20, 2006), 71 FR 14975 (March 24, 2006) (SR–ISE– 11 15 U.S.C. 78f(b)(5). 12 17 CFR 200.30–3(a)(12). 2006–09).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77882 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

order entry and listening (allowing the Maker who was allocated up to 3.6 C. Self-Regulatory Organization’s user to enter orders and perform all million quotes per day in a month.7 A Statement on Comments on the other miscellaneous functions, such as High Throughput User was able to enter Proposed Rule Change Received From setting parameters and pulling quotes quotes, orders, and perform all other Members, Participants, or Others (but not quoting)); and (3) listening miscellaneous functions, such as setting The Exchange has not solicited, and (allowing the user only to query the parameters and pulling quotes.8 High does not intend to solicit, comments on system and to respond to broadcast Throughput Users were charged a fee of this proposed rule change. The 4 messages). The Exchange notes that $2,400 per month and an additional Exchange has not received any quoting, order entry and listening are user fee of $1,900 for each incremental unsolicited written comments from functionalities available only to usage of up to 3.6 million quotes per members or other interested parties. Exchange Market Makers, i.e., Primary day per user. Now that ISE has fully Market Makers and Competitive Market migrated to Optimise, the Exchange no III. Date of Effectiveness of the Makers, while order entry and listening longer has a need for the ‘‘High Proposed Rule Change and Timing for are functionalities available only to non- Throughput User’’ and proposes to Commission Action Market Makers, i.e., Electronic Access remove it from its Schedule of Fees. The foregoing rule change has become Members. effective pursuant to Section Additionally, now that the Exchange ISE Market Makers currently receive 19(b)(3)(A)(ii) of the Act.11 At any time has transitioned to Optimise, Members an allocation of 1.8 million quotes per within 60 days of the filing of such 5 no longer have a need to use their quote day per user. If a Market Maker submits proposed rule change, the Commission allocation across two trading platforms. more quotes than those allocated, i.e., summarily may temporarily suspend As such, the Exchange proposes to 1.8 million quotes per day per user as such rule change if it appears to the delete text from its Schedule of Fees measured on average in a single month, Commission that such action is that permitted Members to use their the Market Maker is charged for necessary or appropriate in the public quote allocation to access either the old additional users depending upon the interest, for the protection of investors, number of quotes submitted. Each trading system or Optimise. or otherwise in furtherance of the month, the total number of quotes The Exchange has designated this purposes of the Act. If the Commission submitted by a Market Maker is divided proposal to be operative on December 1, takes such action, the Commission shall by the number of trading days, resulting 2011. institute proceedings to determine in the average quotes per day. This whether the proposed rule should be 2. Statutory Basis number is then divided by 1.8 million approved or disapproved. and rounded up to the nearest whole The Exchange believes that its number, resulting in an implied number IV. Solicitation of Comments proposal to amend its Schedule of Fees of users based on quotes. Market Makers is consistent with Section 6(b) of the Interested persons are invited to are charged on a monthly basis for the Act 9 in general, and furthers the submit written data, views, and greater of (a) the greatest number of arguments concerning the foregoing, objectives of Section 6(b)(4) of the Act 10 users that logged into the system, or (b) including whether the proposed rule in particular, in that it is an equitable the number of implied users based on change is consistent with the Act. allocation of reasonable dues, fees and quotes. Comments may be submitted by any of other charges among Exchange members ISE currently charges Market Makers the following methods: $1,200 per month for each quoting and other persons using its facilities. session for up to 1.8 million quotes per The Exchange believes that the proposal Electronic Comments day, on average for a month. Market does not constitute an inequitable • Use the Commission’s Internet Makers are charged an additional user allocation of fees, as all similarly comment form (http://www.sec.gov/ fee of $950 for each incremental usage situated Members will be subject to the rules/sro.shtml); or of up to 1.8 million quotes per day per same fee structure, and access to the • Send an email to rule- user. The Exchange now proposes to Exchange’s market is offered on fair and [email protected]. Please include File standardize this fee by charging a flat non-discriminatory terms. In other Number SR–ISE–2011–80 on the subject fee of $1,000 for each login session. words, the proposed rule change will line. treat similarly situated Members in the Each login session will continue to Paper Comments permit a Market Maker to enter up to 1.8 same manner by assessing the same fees • million quotes per day. Market Makers to all Members based on their quoting Send paper comments in triplicate who exceed their monthly quoting needs. The Exchange further believes to Elizabeth M. Murphy, Secretary, allowance will also be charged $1,000 that its proposal is both equitable and Securities and Exchange Commission, per month for each subsequent usage of reasonable as it will standardize the fees 100 F Street NE., Washington, DC 1.8 million quotes per day in a month. charged by the Exchange. With this 20549–1090. Earlier this year, the Exchange proposed rule change, all Members will All submissions should refer to File launched an enhanced trading system be assessed the same access fee. Number SR–ISE–2011–80. This file called Optimise. Under its old trading B. Self-Regulatory Organization’s number should be included on the system, prior to Optimise, the Exchange Statement on Burden on Competition subject line if email is used. To help the had an additional category of login Commission process and review your known as a ‘‘High Throughput User.’’ 6 The proposed rule change does not comments more efficiently, please use A High Throughput User was a Market impose any burden on competition that only one method. The Commission will is not necessary or appropriate in post all comments on the Commission’s 4 Id. furtherance of the purposes of the Act. Internet Web site (http://www.sec.gov/ 5 See Exchange Act Release No. 64269 (April 8, rules/sro.shtml). Copies of the 2011), 76 FR 20752 (April 13, 2011) (SR–ISE–2011– 7 submission, all subsequent 21). See supra note 5. 6 See Securities Exchange Act Release No. 55941 8 Id. amendments, all written statements (June 21, 2007), 72 FR 35535 (June 28, 2007) (SR– 9 15 U.S.C. 78f(b). ISE–2007–36). 10 15 U.S.C. 78f(b)(4). 11 15 U.S.C. 78s(b)(3)(A)(ii).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77883

with respect to the proposed rule I. Self-Regulatory Organization’s each NOM Participant for all options change that are filed with the Statement of the Terms of Substance of transactions executed or cleared by NOM Commission, and all written the Proposed Rule Change Participant that are cleared by The Options communications relating to the Clearing Corporation (OCC) in the customer The Exchange proposes to institute a range regardless of the exchange on which proposed rule change between the new transaction-based ‘‘Options the transaction occurs. The Options Commission and any person, other than Regulatory Fee’’ and eliminate Regulatory Fee is collected indirectly from those that may be withheld from the registered representative fees for NOM Participants through their clearing public in accordance with the NASDAQ members using the NASDAQ firms by OCC on behalf of NOM. NOM provisions of 5 U.S.C. 552, will be Options Market (‘‘NOM’’), NASDAQ’s Participants who do not transact an equities available for Web site viewing and facility for executing and routing business on the NASDAQ Stock Market LLC printing in the Commission’s Public in a calendar year will receive a refund of the standardized equity and index options. fees specified in Rule 7003(b) upon written Reference Room, 100 F Street NE., While fee changes pursuant to this Washington, DC 20549, on official notification to the Exchange along with proposal are effective upon filing, the documentation evidencing that no equities business days between the hours of 10 Exchange has designated these changes business was conducted on the NASDAQ a.m. and 3 p.m. Copies of the filing also to be operative on January 3, 2012. Stock Market for that calendar year. The will be available for inspection and The text of the proposed rule change Exchange will accept refund requests up copying at the principal office of the is set forth below. Proposed new text is until sixty (60) days after the end of the Exchange. All comments received will italicized and deleted text is in brackets. calendar year. be posted without change; the * * * * * Commission does not edit personal * * * * * The text of the proposed rule change identifying information from 7003. Registration and Processing Fees is available on the Exchange’s Web site submissions. You should submit only (a) The following fees will be collected and at http:// information that you wish to make retained by FINRA via the Web CRD www.nasdaq.cchwallstreet.com, at the available publicly. All submissions registration system for the registration of principal office of the Exchange, and at should refer to File Number SR–ISE– associated persons of Nasdaq members that the Commission’s Public Reference 2011–80 and should be submitted on or are not also FINRA members: Room. before January 4, 2012. (1) $85 for each initial Form U4 filed for the registration of a representative or II. Self-Regulatory Organization’s For the Commission, by the Division of principal; Statement of the Purpose of, and Trading and Markets, pursuant to delegated (2) $95 for the additional processing of Statutory Basis for, the Proposed Rule authority.12 each initial or amended Form U4 or Form U5 Change Kevin M. O’Neill, that includes the initial reporting, Deputy Secretary. amendment, or certification of one or more In its filing with the Commission, the disclosure events or proceedings; Exchange included statements [FR Doc. 2011–32001 Filed 12–13–11; 8:45 am] (3) $30 annually for each of the member’s concerning the purpose of and basis for BILLING CODE 8011–01–P registered representatives and principals for the proposed rule change and discussed system processing; any comments it received on the (4) $13 for processing and posting to the proposed rule change. The text of these SECURITIES AND EXCHANGE CRD system each set of fingerprints COMMISSION submitted by the member, plus a pass- statements may be examined at the through of any other charge imposed by the places specified in Item IV below. The United States Department of Justice for Exchange has prepared summaries, set [Release No. 34–65913; File No. SR– processing each set of fingerprints; forth in sections A, B, and C below, of NASDAQ–2011–163] (5) $13 for processing and posting to the the most significant aspects of such Self-Regulatory Organizations; CRD system each set of fingerprint results statements. and identifying information that has been NASDAQ Stock Market LLC; Notice of processed through a self-regulatory A. Self-Regulatory Organization’s Filing and Immediate Effectiveness of organization other than NASD; and Statement of the Purpose of, and a Proposed Rule Change Relating to (6) a $75 session fee for each individual Statutory Basis for, the Proposed Rule the Options Regulatory Fee who is required to complete the Regulatory Change Element of the Continuing Education December 8, 2011. Requirements pursuant to Nasdaq Rule 1120. 1. Purpose Pursuant to Section 19(b)(1) of the (b) The following fees will be collected via NASDAQ is proposing to amend Rule Securities Exchange Act of 1934 the Web CRD registration system for the 7003 entitled ‘‘Registration and 1 2 registration of associated persons of Nasdaq (‘‘Act’’) and Rule 19b–4 thereunder, members:* Processing Fees’’ to eliminate its notice is hereby given that on November (1) $55 for each initial Form U4 filed for registered representative fees for NOM 28, 2011, The NASDAQ Stock Market the registration of a representative or Participants and also create a new Rule LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed principal. 7059 entitled ‘‘NASDAQ Options with the Securities and Exchange (2) $55 for each registration U4 transfer or Regulatory Fee’’ to institute a new Commission (‘‘Commission’’) the re-licensing of a representative or principal. transaction-based Options Regulatory proposed rule change as described in * NOM Participants that do not transact an Fee. Items I, II, and III below, which Items equities business on the NASDAQ Stock Each Options Participant that registers have been prepared by the Exchange. Market LLC are not subject to the fees in Rule an options principal and/or 7003(b). The Commission is publishing this representative who is conducting notice to solicit comments on the * * * * * business on NOM is assessed a proposed rule change from interested 7059. NASDAQ Options Regulatory Fee registered representative fee (‘‘RR Fee’’) persons. NOM Participants will be assessed an based on the action associated with the Options Regulatory Fee of $0.0015 per registration. There are annual fees as 12 17 CFR 200.30–3(a)(12). contract. * well as initial, transfer and termination 1 15 U.S.C. 78s(b)(1). * Effective January 2, 2012, the Options fees. RR Fees as well as other regulatory 2 17 CFR 240.19b–4. Regulatory Fee will be assessed by NOM to fees collected by the Exchange were

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77884 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

intended to cover only a portion of the of the following year. For example, a Participants’ activities supports cost of the Exchange’s regulatory NOM Participant that does not transact applying the ORF to transactions programs. Prior to recent rule changes an equity business on NASDAQ Stock cleared but not executed by a NOM by other options exchanges such as the Market during the calendar year would Participant. The Exchange’s regulatory Chicago Board Options Exchange, be entitled to a refund of its RR Fees.4 responsibilities are the same regardless Incorporated (‘‘CBOE’’), NASDAQ OMX The Exchange would refund these fees of whether a NOM Participant executes PHLX, LLC (‘‘Phlx’’), the International upon written notification to the a transaction or clears a transaction Securities Exchange, LLC (‘‘ISE’’), NYSE Exchange and documentation executed on its behalf. The Exchange Arca, Inc. (‘‘NYSEArca’’) and NYSE evidencing that no equity business was regularly reviews all such activities, AMEX LLC (‘‘NYSEAmex’’) and conducted on the NASDAQ Stock including performing surveillance for NASDAQ OMX BX, Inc. (‘‘BX’’), all Market for that calendar year. The position limit violations, manipulation, options exchanges, regardless of size, Exchange will accept refund requests up frontrunning, contrary exercise advice charged registered representative fees. until sixty (60) days after the end of the violations and insider trading.6 These The Exchange believes that the calendar year. activities span across multiple current RR Fee is no longer equitable The ORF would be assessed by the exchanges. given changes among option market Exchange to each NOM Participant for The Exchange believes the initial participants. The options industry has all options transactions executed or level of the fee is reasonable because it evolved to a structure with many more cleared by the NOM Participant that are relates to the recovery of the costs of Internet-based and discount brokerage cleared by The Options Clearing supervising and regulating NOM firms. These firms have few registered Corporation (‘‘OCC’’) in the customer Participants. The Exchange believes the representatives and thus pay very little range, i.e., transactions that clear in the amount of the ORF is fair and in RR Fees compared to full service customer account of the NOM reasonably allocated because it is a brokerage firms that have many Participant’s clearing firm at OCC, closer approximation to the Exchange’s registered representatives. Further, due regardless of the marketplace of actual costs in administering its to the manner in which RR Fees are execution. In other words, the Exchange regulatory program. The ORF would be charged, it is possible for a NOM would impose the ORF on all options collected indirectly from NOM Participant to restructure its business to transactions executed by a NOM Participants through their clearing firms avoid paying these fees altogether. A Participant, even if the transactions do by OCC on behalf of the Exchange. The firm can avoid RR Fees by terminating not take place on NOM.5 The ORF Exchange expects that NOM its options participant status and would also be charged for transactions Participants will pass-through the ORF sending its business to NOM through that are not executed by a NOM to their customers in the same manner another separate NOM Participant, even Participants but are ultimately cleared that firms pass-through to their an affiliated firm that has many fewer by a NOM Participant. In the case where customers the fees charged by Self registered representatives. If firms a NOM Participant executes a Regulatory Organizations (‘‘SROs’’) to terminated their options participant transaction and a NOM Participant help the SROs meet their obligations status to avoid RR Fees, the Exchange clears the transaction, the ORF would be under Section 31 of the Exchange Act. would suffer the loss of a source of assessed to the NOM Participant who The ORF is designed to recover a funding for its regulatory programs. executed the transaction. In the case material portion of the costs to the More importantly, the regulatory effort where a non-NOM Participant executes Exchange of the supervision and the Exchange expends to review the a transaction and a NOM Participant regulation of NOM Participants, transactions of each type of firm is not clears the transaction, the ORF would be including performing routine commensurate with the number of assessed to the NOM Participant who surveillances, investigations, as well as registered representatives that each firm clears the transaction. As noted, the policy, rulemaking, interpretive and 7 employs. ORF would replace RR Fees, which enforcement activities. The Exchange In order to address the inequity of the relate to a NOM Participant’s options believes that revenue generated from the current regulatory fee structure and to customer business. Further, RR Fees ORF, when combined with all of the offset more fully the cost of the constituted the single-largest fee Exchange’s other regulatory fees, will Exchange’s regulatory programs assessed that is related to NOM cover a material portion, but not all, of pertaining to NOM, the Exchange customer trading activity (in that NOM the Exchange’s regulatory costs. At proposes to eliminate the current RR generally does not charge customer Fee for NOM Participants and adopt an transaction fees), and the Exchange 6 The Exchange also participates in The Options Regulatory Surveillance Authority (‘‘ORSA’’) Options Regulatory Fee (‘‘ORF’’) of believes it is appropriate to charge the national market system plan and in doing so shares $0.0015 per contract. All participants ORF only to transactions that clear as information and coordinates with other exchanges will continue to be assessed the RR Fee customer at the OCC. The Exchange designed to detect the unlawful use of undisclosed in Exchange Rule 7003(b),3 however, believes that its broad regulatory material information in the trading of securities options. ORSA is a national market system NOM Participants that do not transact responsibilities with respect to NOM comprised of several self-regulatory organizations an equity business on the NASDAQ whose functions and objectives include the joint Stock Market during the applicable year, 4 This would include the $55 fee for initial Form development, administration, operation and will receive a refund of the RR fees U4s filed for the registration of a representative or maintenance of systems and facilities utilized in the principal and the $55 fee for each registration U4 regulation, surveillance, investigation and detection collected through CRD, specifically the transfer or re-licensing of a representative or of the unlawful use of undisclosed material fees specified in Rule 7003(b). The NOM principal. information in the trading of securities options. The Participant would solely conducted an 5 The ORF would apply to all customer orders Exchange compensates ORSA for the Exchange’s options business would be refunded the executed by a NOM Participant on NOM. Exchange portion of the cost to perform insider trading rules require each NOM Participant to submit trade surveillance on behalf of the Exchange. The ORF RR Fees at the end of the first quarter information in order to allow the Exchange to will cover the costs associated with the Exchange’s properly prioritize and match orders and quotations arrangement with ORSA. 3 The RR fee would still apply to those NOM and report resulting transactions to the OCC. See 7 As stated above, the RR Fees collected by the Participants that also conduct business on the Exchange Rules Chapter V, Section 7. The Exchange Exchange were originally intended to cover only a NASDAQ Stock Market equities trading platform. represents that it has surveillances in place to verify portion of the cost of the Exchange’s regulatory See Exchange Rule 7003. that NOM Participants comply with the Rule. programs.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77885

present, RR Fees make up the largest is because regulating customer trading information and coordinates inquiries part of the Exchange’s total options activity is much more labor intensive and investigations with other exchanges regulatory fee revenue, however, the and requires greater expenditure of designed to address potential total amount of NOM specific regulatory human and technical resources than intermarket manipulation and trading fees collected by the Exchange is regulating non-customer trading abuses. The Exchange’s participation in significantly less than the regulatory activity, which tends to be more ISG helps it to satisfy the Exchange Act costs incurred by NOM on an annual automated and less labor-intensive. As a requirement that it have coordinated basis. The Exchange notes that its result, the costs associated with surveillance with markets on which regulatory responsibilities with respect administering the customer component security futures are traded and markets to NOM Participant compliance with of the Exchange’s overall regulatory on which any security underlying options sales practice rules have been program are materially higher than the security futures are traded to detect allocated to FINRA under a 17d–2 costs associated with administering the manipulation and insider trading.12 agreement. The ORF is not designed to non-customer component (e.g., market The Exchange believes that charging cover the cost of options sales practice maker) of its regulatory program. the ORF across markets will avoid regulation. The Exchange believes it is reasonable having NOM Participants direct their The Exchange would monitor the and appropriate for the Exchange to trades to other markets in order to avoid amount of revenue collected from the charge the ORF for options transactions the fee and to thereby avoid paying for ORF to ensure that it, in combination regardless of the exchange on which the their fair share of regulation. If the ORF with its other NOM regulatory fees and transactions occur. The Exchange has a did not apply to activity across markets fines, does not exceed the Exchange’s statutory obligation to enforce then NOM Participants would send total regulatory costs. The Exchange compliance by NOM Participants and their orders to the least cost, least expects to monitor NOM regulatory their associated persons with the regulated exchange. Other exchanges costs and revenues at a minimum on an Exchange Act and the Rules of the could impose a similar fee on their annual basis. If the Exchange Exchange and to surveil for other member’s activity, including the activity determines NOM regulatory revenues manipulative conduct by market of those members on NOM. In addition exceed regulatory costs, the Exchange participants (including non-NOM to the ORF that is currently in place at would adjust the ORF by submitting a Participants) trading on the Exchange. other exchanges,13 the Exchange notes fee change filing to the Commission. The Exchange cannot effectively surveil that there is established precedent for an The Exchange would notify NOM for such conduct without looking at and SRO charging a fee across markets, Participants of adjustments to the ORF evaluating activity across all options namely, FINRA’s Trading Activity via a Regulatory Information Circular. markets. Many of the Exchange’s market Fee.14 While the Exchange does not The Exchange believes the proposed surveillance programs require the have all the same regulatory ORF is equitably allocated because it Exchange to look at and evaluate responsibilities as FINRA, the Exchange would be charged to all NOM activity across all options markets, such believes that, like the other exchanges Participants on all their customer as surveillance for position limit that assess an ORF, its broad regulatory options business. This is because of the violations, manipulation, frontrunning responsibilities with respect to NOM amount of resources required by the and contrary exercise advice violations/ Participants’ activities, irrespective of Exchange to regulate non-customer expiring exercise declarations.9 Also, where their transactions take place, trading activity, which is significantly the Exchange and the other options supports a regulatory fee applicable to less than the amount of resources the exchanges are required to populate a transactions on other markets. Unlike Exchange must dedicate to regulate consolidated options audit trail FINRA’s Trading Activity Fee, the ORF customer trading activity. The ORF (‘‘COATS’’) system in order to surveil would apply only to a NOM seeks to recover the costs of supervising NOM Participant activities across Participant’s customer options and regulating members, including markets.10 transactions. performing routine surveillances, In addition to its own surveillance While fee changes pursuant to this investigations, examinations, financial programs, the Exchange works with proposal are effective upon filing, the monitoring, and policy, rulemaking, other SROs and exchanges on Exchange has designated these changes interpretive, and enforcement activities. intermarket surveillance related issues. to be operative on January 3, 2012. The Exchange believes the proposed Through its participation in the ORF is reasonable because it will raise Intermarket Surveillance Group 2. Statutory Basis revenue related to the amount of (‘‘ISG’’),11 the Exchange shares NASDAQ believes that the proposed customer options business conducted by rule changes are consistent with the NOM Participants, and thus the amount 9 The Exchange and other options SROs are provisions of Section 6 of the Act,15 in of Exchange regulatory services those parties to a 17d–2 agreement allocating among the general, and with Section 6(b)(4) of the SROs regulatory responsibilities relating to 16 NOM Participants will require, instead compliance by the common members with rules for Act, in particular, in that it provides of how many registered representative a expiring exercise declarations, position limits, OCC for the equitable allocation of reasonable particular NOM Participant employs.8 trade adjustments, and Large Option Position dues, fees and other charges among As a fully-electronic exchange Report reviews. See Securities Exchange Act Release No. 63430 (December 3, 2010), 75 FR 76758 12 without a trading floor, the amount of (December 9, 2010). See Exchange Act Section 6(h)(3)(I). 13 resources required by the Exchange to 10 COATS effectively enhances intermarket See other options exchanges such as the regulate non-customer trading activity is options surveillance by enabling the options Chicago Board Options Exchange, Incorporated significantly less than the amount of exchanges to reconstruct the market promptly to (‘‘CBOE’’), NASDAQ OMX PHLX, LLC (‘‘Phlx’’), the effectively surveil certain rules. International Securities Exchange, LLC (‘‘ISE’’), resources the Exchange must dedicate to NYSE Arca, Inc. (‘‘NYSEArca’’) and NYSE AMEX 11 ISG is an industry organization formed in 1983 LLC (‘‘NYSEAmex’’) and NASDAQ OMX BX, Inc. regulate customer trading activity. This to coordinate intermarket surveillance among the SROs by cooperatively sharing regulatory (‘‘BX’’), all options exchanges, regardless of size, charged registered representative fees. 8 The Exchange expects that implementation of information pursuant to a written agreement 14 the proposed ORF will result generally in many between the parties. The goal of the ISG’s See Securities Exchange Act Release No. 47946 traditional brokerage firms paying less regulatory information sharing is to coordinate regulatory (May 30, 2003), 68 FR 3402 (June 6, 2003). fees while Internet and discount brokerage firms efforts to address potential intermarket trading 15 15 U.S.C. 78f. will pay more. abuses and manipulations. 16 15 U.S.C. 78f(b)(4).

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77886 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

members and issuers and other persons offset more fully the cost of the it appears to the Commission that such using any facility or system which Exchange’s regulatory programs. action is necessary or appropriate in the NASDAQ operates or controls. The Commission has addressed the public interest, for the protection of In particular, the Exchange believes funding of an SRO’s regulatory investors, or otherwise in furtherance of the ORF is objectively allocated to NOM operations in the Concept Release the purposes of the Act. Participants because it would be Concerning Self-Regulation 18 and the charged to all NOM Participants on all release on the Fair Administration and IV. Solicitation of Comments their transactions that clear as customer Governance of Self-Regulatory Interested persons are invited to at the OCC. RR Fees constituted the Organizations.19 In the Concept Release, submit written data, views, and single-largest fee assessed that is related the Commission states that: ‘‘Given the arguments concerning the foregoing, to NOM customer trading activity (in inherent tension between an SRO’s role including whether the proposed rule that NOM generally does not charge as a business and a regulator, there change is consistent with the Act. customer transaction fees), and the undoubtedly is a temptation for an SRO Comments may be submitted by any of Exchange believes it is appropriate to to fund the business side of its the following methods: charge the ORF only to transactions that operations at the expense of clear as customer at the OCC. In regulation.’’ 20 In order to address this Electronic Comments addition, the Exchange is assessing potential conflict, the Commission • Use the Commission’s Internet higher fees to those Participants that proposed in the Governance Release comment form (http://www.sec.gov/ require more Exchange regulatory rules that would require an SRO to rules/sro.shtml); or services based on the amount of direct monies collected from regulatory • Send an email to rule-comments@ customer options business they fees, fines, or penalties exclusively to sec.gov. Please include File Number SR– conduct. As a fully-electronic exchange fund the regulatory operations and other NASDAQ–2011–163 on the subject line. without a trading floor, the amount of programs of the SRO related to its resources required by the Exchange to regulatory responsibilities.21 The Paper Comments regulate non-customer trading activity is Exchange has designed the ORF to • Send paper comments in triplicate significantly less than the amount of generate revenues that would recover a to Elizabeth M. Murphy, Secretary, resources the Exchange must dedicate to material portion of NOM’s regulatory Securities and Exchange Commission, regulate customer trading activity. This costs, which is consistent with the 100 F Street NE., Washington, DC is because regulating customer trading Commission’s view that regulatory fees 20549–1090. activity is much more labor intensive be used for regulatory purposes and not All submissions should refer to File and requires greater expenditure of to support the Exchange’s business side. Number SR–NASDAQ–2011–163. This human and technical resources than B. Self-Regulatory Organization’s file number should be included on the regulating non-customer trading Statement on Burden on Competition subject line if email is used. To help the activity, which tends to be more The Exchange does not believe that Commission process and review your automated and less labor-intensive. comments more efficiently, please use Moreover, the Exchange believes the the proposed rule change will impose only one method. The Commission will ORF ensures fairness by assessing any burden on competition not post all comments on the Commission’s higher fees to those NOM Participants necessary or appropriate in furtherance Internet Web site (http://www.sec.gov/ that require more Exchange regulatory of the purposes of the Act. rules/sro.shtml). Copies of the services based on the amount of C. Self-Regulatory Organization’s submission, all subsequent customer options business they Statement on Comments on the amendments, all written statements conduct. The ORF seeks to recover the Proposed Rule Change Received From with respect to the proposed rule costs of supervising and regulating Members, Participants, or Others change that are filed with the Participants including performing Commission, and all written routine surveillances, investigations, No written comments were either communications relating to the examinations, financial monitoring, and solicited or received. proposed rule change between the policy, rulemaking, interpretive, and III. Date of Effectiveness of the Commission and any person, other than enforcement activities. The Exchange’s Proposed Rule Change and Timing for those that may be withheld from the regulatory responsibilities are the same Commission Action public in accordance with the regardless of whether a NOM The foregoing rule change has become provisions of 5 U.S.C. 552, will be Participant executes a transaction or effective pursuant to Section available for Web site viewing and clears a transaction executed on its 19(b)(3)(A)(ii) of the Act 22 and printing in the Commission’s Public behalf. The Exchange believes that this paragraph (f)(2) of Rule 19b–4 23 Reference Room, 100 F Street NE., proposal is reasonable, equitable and thereunder. At any time within 60 days Washington, DC 20549, on official not unfairly [sic] for the foregoing of the filing of the proposed rule change, business days between the hours of 10 reasons and also because this proposal the Commission summarily may a.m. and 3 p.m. Copies of such filing would remove the inequity of the temporarily suspend such rule change if also will be available for inspection and current regulatory fee structure 17 and copying at the principal office of the separate NOM Participant, even an affiliated firm 17 As discussed herein, the options industry has Exchange. All comments received will that has many fewer registered representatives. be posted without change; the evolved to a structure with many more Internet- 18 See Securities Exchange Act Release No. 50700 based and discount brokerage firms. These firms (November 18, 2004), 69 FR 71256 (December 8, Commission does not edit personal have few registered representatives and thus pay 2004) (‘‘Concept Release’’). identifying information from very little in RR Fees compared to full service 19 See Securities Exchange Act Release No. 50700 brokerage firms that have many registered submissions. You should submit only (November 18, 2004), 69 FR 71256 (December 8, representatives. Further, due to the manner in information that you wish to make 2004) (‘‘Concept Release’’). [sic] which RR Fees are charged, it is possible for a NOM publicly available. All submissions 20 Concept Release at 71268. Participant to restructure its business to avoid should refer to File Number SR– paying these fees altogether. A firm can avoid RR 21 Governance Release at 71142. Fees by terminating its options participant status 22 15 U.S.C. 78s(b)(3)(A)(ii). NASDAQ–2011–163 and should be and sending its business to NOM through another 23 17 CFR 240.19b–4(f)(2). submitted on or before January 4, 2012.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77887

For the Commission, by the Division of Passenger terminal building expansion Determination: Approved. Based on Trading and Markets, pursuant to delegated PFC administrative costs information contained in the public 24 authority. Decision Date: October 27, 2011. agency’s application, the FAA has Kevin M. O’Neill, For Further Information Contact: determined that the approved class Deputy Secretary. Andrew Brooks, New York Airports accounts for less than 1 percent of the [FR Doc. 2011–31999 Filed 12–13–11; 8:45 am] District Office, (516) 227–3816. total annual enplanements at Pullman- BILLING CODE 8011–01–P Public Agency: City of Lynchburg, Moscow Regional Airport. Virginia. Brief Description of Projects Approved Application Number: 12–06–C–00– for Collection and Use: DEPARTMENT OF TRANSPORTATION LYH. Americans with Disabilities Act ramp/ Application Type: Impose and use a terminal access Federal Aviation Administration PFC. Environmental assessment for new PFC Level: $4.50. runway Notice of Passenger Facility Charge Total PFC Revenue Approved in This Wildlife hazard assessment and (PFC) Approvals and Disapprovals Decision: $3,046,338. management plan Earliest Charge Effective Date: Interactive computer training system AGENCY: Federal Aviation December 1, 2012. Service road rehabilitation Administration (FAA), DOT. Estimated Charge Expiration Date: General aviation west ramp ACTION: Monthly Notice of PFC September 1, 2022. rehabilitation Approvals and Disapprovals. In Class of Air Carriers Not Required to PFC administration November 2011, there were five Collect PEG’s: Air taxi/commercial Decision Date: November 9, 2011. applications approved. This notice also operators filing FAA Form 1800–31. For Further Information Contact: includes information on one Determination: Approved. Based on Trang Tran, Seattle Airports District application, approved in October 2011, information contained in the public Office, (425) 227–1662. inadvertently left off the October 2011 agency’s application, the FAA has Public Agency: County of Natrona notice. Additionally, 12 approved determined that the approved class Board of Trustees, Casper, Wyoming. amendments to previously approved accounts for less than 1 percent of the Application Number: 12–07–C–00– applications are listed. total annual enplanements at Lynchburg CPR. Regional Airport. Application Type: Impose and use a SUMMARY: The FAA publishes a monthly Brief Description of Projects Approved PFC. notice, as appropriate, of PFC approvals for Collection and Use: PFC Level: $3.00. and disapprovals under the provisions Reimbursement of PFC development Total PFC Revenue Approved in This of the Aviation Safety and Capacity and administrative costs Decision: $443,082. Expansion Act of 1990 (Title IX of the Rehabilitate runway 3/21 Earliest Charge Effective Date: August Omnibus Budget Reconciliation Act of General aviation terminal building, auto 1, 2014. 1990) (Pub. L. 101–508) and Part 158 of parking Estimated Charge Expiration Date: the Federal Aviation Regulations (14 Rehabilitate taxiway B and corporate June 1, 2016. CFR Part 158). This notice is published taxilane Class of Air Carriers Not Required to pursuant to paragraph d of § 158.29. Rehabilitate runway 4/22 drainage— Collect PFC’s: None. Brief Description of Projects Approved PFC Applications Approved phase 2 Runway 4/22 extension, environmental for Collection and Use: Public Agency: County of Clinton, assessment Rehabilitate taxiway A—phase I Plattsburgh, New York. Runway 4/22 design—phase 3 Rehabilitate taxiway A—phase II Application Number: 12–07–C–00– Extend runway 4/22, construction Master plan update and snow removal PBG. Runway 4/22 extension, phase 5 requirements analysis Application Type: Impose and use a Master plan update Acquire snow plow and spreader PFC. Decision Date: November 1, 2011. Decision Date: November 17, 2011. PFC Level: $4.50. For Further Information Contact: For Further Information Contact: Jesse Total PFC Revenue Approved in This Jeffery Breeden, Washington Airports Lyman, Denver Airports District Office, Decision: $56,170,454. District Office, (703) 661–1363. (303) 342–1262. Earliest Charge Effective Date: Public Agency: Cities of Pullman, Public Agency: City of Cody, December 1, 2012. Washington and Moscow, Idaho. Wyoming. Estimated Charge Expiration Date: Application Number: 12–08–C–00– Application Number: 11–07–C–00– February 1, 2043. PUW. COD. Class of Air Carriers Not Required to Application Type: Impose and use a Application Type: Impose and use a Collect PFC’s: Nonscheduled/on- PFC. PFC. demand air carriers filing FAA Form PFC Level: $4.50. PFC Level: $4.50. 1800–31. Total PFC Revenue Approved in This Total PFC Revenue Approved in This Determination: Approved. Based on Decision: $170,350. Decision: $284,100. information contained in the public Earliest Charge Effective Date: Earliest Charge Effective Date: January agency’s application, the FAA has November 1, 2012. 1, 2013. determined that the approved class Estimated Charge Expiration Date: Estimated Charge Expiration Date: accounts for less than 1 percent of the February 1, 2014. June 1, 2016. total annual enplanements at Class of Air Carriers Not Required to Class of Air Carriers Not Required to Plattsburgh International Airport. Collect PFC’s: Non-scheduled air taxi/ Collect PFC’s: On demand, non- Brief Description of Projects Approved commercial operators filing FAA Form scheduled air taxi/commercial for Collection and Use: 1800–31 and utilizing aircraft having a operators. seating capacity of less than 20 Determination: Approved. Based on 24 17 CFR 200.30–3(a)(12). passengers. information contained in the public

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77888 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

agency’s application, the FAA has Date of Withdrawal: September 7, land-connected National Highway determined that the approved class 2011. System within a State. accounts for less than 1 percent of the Decision Date: November 17, 2011. Determination: Approved. Based on total annual enplanements at For Further Information Contact: Jesse information contained in the public Yellowstone Regional Airport. Lyman, Denver Airports District Office, agency’s application, the FAA has Brief Description of Projects Approved (303) 342–1262. determined that each approved class for Collection and Use: Public Agency: County of Knox, accounts for less than 1 percent of the Security enhancement 1 Rockland, Maine. total annual enplanements at Know Security enhancement 2 Application Number: 12–01–C–00– County Regional Airport. Pickup mounted snow plow blade RKD. Brief Description of Projects Approved Service road rehabilitation Application Type: Impose and use a for Collection and Use: Acquire aircraft rescue and firefighting PFC. Snow removal equipment acquisition fire suits PFC Level: $4.50. Airport pavement rehabilitation Replace aircraft rescue and firefighting Total PFC Revenue Approved in This Master plan update equipment Decision: $167,250. Brief Description of Projects Approved Airport layout plan update and Earliest Charge Effective Date: January For Collection: narrative boundary survey 1, 2012. Design and permitting for runway 13/31 PFC consulting fees Estimated Charge Expiration Date: Easement acquisition Expand aircraft rescue and firefighting July 1, 2016. Obstruction removal building Classes of Air Carriers Not Required Perimeter fencing Acquire snow removal equipment to Collect PFC’s: (1) Non-scheduled/on- Runway 13/31 reconstruction Acquire interactive training system demand air carriers; (2) Passengers Rehabilitate terminal aircraft apron Acquire snow removal equipment enplaned on a flight to an airport in a Decision Date: November 22, 2011. vehicle attachment community that has a population of less For Further Information Contact: Brief Description of Withdrawn than 10,000 and is not connected by a Priscilla Scott, New England Region Project: Two-inch overlay, taxiway A. land highway or vehicular way to the Airports Division, (781) 238–7614.

AMENDMENT TO PFC APPROVALS

Original Amended Amendment Original Amended estimated estimated Amendment No. city, state approved approved net approved net charge exp. charge exp. date PFC revenue PFC revenue date. date

07–01–C–01–SIT, Sitka, AK ...... 10/28/11 $1,100,000 $1,375,000 06/01/12 7/01/14 08–05–C–01–RAP Rapid Sity, SD ...... 10/31/11 729,192 1,048,782 06/01/09 10/01/09 99–01–C–04–ANC, Anchorage, AK ...... 11/04/11 22,000,000 21,043,173 01/01/06 01/01/06 06–17–C–01–ORD, Chicago, IL ...... 11/08/11 73,198,000 78,404,650 08/01/16 07/01/16 10–08–C–01–GCC, Gillette, WY ...... 11/10/11 426,381 813,164 05/01/15 11/01/14 07–06–C–01–GCC, Gillette, WY ...... 11/14/11 167,238 91,395 02/01/11 11/01/10 09–04–C–01–ROW, Roswell, NM ...... 11/15/11 510,594 627,519 12/01/13 11/01/13 10–03–C–01–DAL, Dallas, TX ...... 11/15/11 345,323,728 383,636,108 03/01/22 04/01/26 08–01–C–01–IFP, Bullhead City, AZ ...... 11/16/11 744,600 904,132 07/01/12 10/01/12 08–17–C–03–BDL, Windsor Locks, CT ...... 11/16/11 11,707,591 12,135,277 07/01/21 07/01/21 09–06–C–01–HTS, Huntington, WV ...... 11/17/11 1,122,712 1,208,420 09/01/13 06/01/12 08–05–C–01–SAN, San Diego, CA ...... 11/23/11 26,301,763 19,031,690 12/01/09 12/01/09

Issued in Washington, DC, on December 5, SUMMARY: Student Transportation of ADDRESSES: Send an original and 10 2011. America, Inc., a motor carrier of copies of any comments referring to Joe Hebert, passengers (Student Transportation), Docket No. MC–F 21042 to: Surface Manager, Financial Analysis and Passenger has filed an application under 49 U.S.C. Transportation Board, 395 E Street SW., Facility Charge Branch. 14303 for its acquisition of control of Washington, DC 20423–0001. In [FR Doc. 2011–31986 Filed 12–13–11; 8:45 am] Dairyland Buses, Inc., also a motor addition, send one copy of comments to BILLING CODE 4910–13–M carrier of passengers (Dairyland). The Student Transportation’s representative: Board is tentatively approving and Mark J. Andrews, Strasburger & Price, authorizing the transaction, and, if no LLP, Suite 640, 1700 K Street NW., DEPARTMENT OF TRANSPORTATION opposing comments are timely filed, Washington, DC 20006. Surface Transportation Board this notice will be the final Board FOR FURTHER INFORMATION CONTACT: Julia action. Persons wishing to oppose the M. Farr, (202) 245–0359. Federal application must follow the rules under Information Relay Service (FIRS) for the [Docket No. MC–F 21042] 49 CFR 1182.5 and 1182.8. hearing impaired: 1–(800) 877–8339. SUPPLEMENTARY INFORMATION: Student Student Transportation of America, DATES: Comments must be filed by Transportation is a publicly held Inc.—Control—Dairyland Buses, Inc. January 27, 2012. Student corporation established under the laws Transportation may file a reply by AGENCY: Surface Transportation Board. of New Jersey. It holds authority from February 10, 2012. If no comments are the Federal Motor Carrier Safety ACTION: Notice Tentatively Approving filed by January 27, 2012, this notice Administration (FMCSA) as a motor and Authorizing Finance Transaction. shall be effective on that date. carrier providing interstate charter

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77889

passenger services to the public public because Student Transportation By the Board, Chairman Elliott, Vice (MC–31422). Dairyland, a corporation has no intention of substantially Chairman Begeman, and Commissioner established under Wisconsin law, also changing the physical operations Mulvey. holds a FMCSA license (MC–170747) historically conducted by Dairyland. Jeffrey Herzig, and is owned by Coach USA, Inc., a With respect to fixed charges, Student Clearance Clerk. Delaware corporation and noncarrier. Transportation states that the proposed [FR Doc. 2011–32057 Filed 12–13–11; 8:45 am] The core business of both Student transaction will reduce not only interest BILLING CODE 4915–01–P Transportation and Dairyland is costs but also a variety of other transporting students to and from overhead and variable costs that school, a type of transportation not Dairyland might otherwise bear. DEPARTMENT OF TRANSPORTATION subject to Board jurisdiction. See 49 According to Student Transportation, U.S.C. 13506(a)(1). According to the the transaction will have a positive Surface Transportation Board application, approximately 97 percent impact on employee interests, as the [Docket No. FD 35575] of Student Transportation’s revenue is economies and efficiencies resulting derived from school bus services from the proposed transaction, will Watco Holdings, Inc.—Continuance in exempt from FMCSA licensing directly benefit Dairyland’s employees Control Exemption—Swan Ranch jurisdiction; the remaining 3 percent is by maintaining job security and Railroad, L.L.C. derived from incidental charter retaining or expanding the volume of Watco Holdings, Inc. (Watco) has filed operations that do require FMCSA available work. Additional information, a verified notice of exemption pursuant authority if they are interstate in nature. including a copy of the application, may to 49 CFR 1180.2(d)(2) to continue in Similarly, the application indicates that be obtained from Student control of Swan Ranch Railroad, L.L.C. Dairyland derives the vast majority of its Transportation’s representative. revenue from exempt school bus (SRR), upon SRR’s becoming a Class III On the basis of the application, the 1 transportation, with the remainder Board finds that the proposed rail carrier. This transaction is related to a involving incidental charter operations. acquisition of control is consistent with concurrently filed verified notice of The application states that FMCSA- the public interest and should be exemption in Docket No. FD 35574, regulated charter and special operations tentatively approved and authorized. If Swan Ranch Railroad, L.L.C.— have accounted for an insignificant any opposing comments are timely Operation Exemption–Swan Industrial percentage of Student Transportation’s filed, this finding will be deemed Park, wherein SRR seeks Board and Dairyland’s total revenues. vacated, and, unless a final decision can approval to operate 17,192 feet of track Under the proposed transaction, be made on the record as developed, a located within the Swan Industrial Park, Student Transportation seeks procedural schedule will be adopted to in Cheyenne, Wyo., including Track permission to acquire all of the shares reconsider the application. See 49 CFR Numbers 101, 105, and 109. of Dairyland. According to the 1182.6(c). If no opposing comments are Watco intends to consummate the application, the shares of Dairyland filed by the expiration of the comment transaction on or shortly after December were anticipated to be transferred on or period, this notice will take effect 28, 2011 (the effective date of this about November 14, 2011, from their automatically and will be the final notice). current owner, Coach USA, Inc., into an Board action. Watco currently controls 23 Class III independent voting trust established The party’s application and Board rail carriers: Southern Kansas and under 49 CFR pt 1013—Guidelines for decisions and notices are available on Oklahoma Railroad, Inc.; Palouse River the Proper Use of Voting Trusts, where our Web site at http://www.stb.dot.gov. & Coulee City Railroad, L.L.C.; Timber they would remain until the proposed This decision will not significantly Rock Railroad, L.L.C.; Stillwater Central transaction is dismissed by Student affect either the quality of the human Railroad, L.L.C.; Eastern Idaho Railroad, Transportation or disapproved by the environment or the conservation of Board, or until Board approval is final L.L.C.; Kansas & Oklahoma Railroad, energy resources. and effective. L.L.C.; Pennsylvania Southwestern It is ordered: Under 49 U.S.C. 14303(b), the Board Railroad, L.L.C.; Great Northwest 1. The proposed finance transaction is must approve and authorize a Railroad, L.L.C.; Kaw River Railroad, approved and authorized, subject to the transaction it finds consistent with the L.L.C.; Mission Mountain Railroad, filing of opposing comments. public interest, taking into L.L.C.; Mississippi Southern Railroad, consideration at least: (1) The effect of 2. If opposing comments are timely filed, the findings made in this notice L.L.C.; Yellowstone Valley Railroad, the transaction on the adequacy of L.L.C.; Louisiana Southern Railroad, transportation to the public; (2) the total will be deemed as having been vacated. 3. This notice will be effective January L.L.C.; Arkansas Southern Railroad, fixed charges that result; and (3) the L.L.C.; Alabama Southern Railroad, interest of affected carrier employees. 27, 2012, unless opposing comments are timely filed. L.L.C.; Vicksburg Southern Railroad, Student Transportation has submitted L.L.C.; Austin Western Railroad, L.L.C.; information, as required by 49 CFR 4. A copy of this decision will be served on: (1) U.S. Department of Baton Rouge Southern Railroad, L.L.C.; 1182.2, including the information to Pacific Sun Railroad, L.L.C.; Grand Elk demonstrate that the proposed Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Railroad, Inc.; Alabama Warrior transaction is consistent with the public Railway, L.L.C.; Boise Valley Railroad, interest under 49 U.S.C. 14303(b), and a Avenue SE., Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust L.L.C.; and Autauga Northern Railroad, statement that the 12-month aggregate L.L.C. The 23 Class III rail carriers gross operating revenues of Student Division, 10th Street & Pennsylvania Avenue NW., Washington, DC 20530; operate rail lines in 18 States. Transportation and Dairyland exceeded Watco represents that: (1) The rail $2 million. and (3) the U.S. Department of Transportation, Office of the General lines to be operated by SRR do not Student Transportation states that the connect with any other railroads in the proposed transaction will have no Counsel, 1200 New Jersey Avenue SE., Washington, DC 20590. significant impact on the adequacy of 1 Watco owns 100% of the outstanding transportation services available to the Decided: December 8, 2011. membership interests of SRR.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77890 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

Watco corporate family; (2) the DEPARTMENT OF TRANSPORTATION Board decisions and notices are continuance in control is not part of a available on our Web site at http:// series of anticipated transactions that Surface Transportation Board www.stb.dot.gov. would connect the rail lines to be Decided: December 9, 2011. operated by SRR with any other railroad [Docket No. FD 35574] By the Board. in the Watco corporate family; and (3) Swan Ranch Railroad, L.L.C.— Rachel D. Campbell, the transaction does not involve a Class Director, Office of Proceedings. I rail carrier. Therefore, the transaction Operation Exemption—Swan Industrial Park Raina White, is exempt from the prior approval Clearance Clerk. requirements of 49 U.S.C. 11323. See 49 1 Swan Ranch Railroad, L.L.C. (SRR), a [FR Doc. 2011–32093 Filed 12–13–11; 8:45 am] CFR 1180.2(d)(2). noncarrier, has filed a verified notice of BILLING CODE 4915–01–P Under 49 U.S.C. 10502(g), the Board exemption under 49 CFR 1150.31 to may not use its exemption authority to operate, pursuant to an agreement with relieve a rail carrier of its statutory Cheyenne Logistics Hub, LLC (CLH), all DEPARTMENT OF TRANSPORTATION obligation to protect the interests of its the track located within the Swan Surface Transportation Board employees. Section 11326(c), however, Industrial Park, in Cheyenne, Wyo. The does not provide for labor protection for track over which SRR will operate is [Docket No. FD 35504] transactions under 11324 and 11325 approximately 17,192 feet long and includes Track Numbers 101, 105, and that involve only Class III rail carriers. Union Pacific Railroad Company— 109.2 Accordingly, the Board may not impose Petition for Declaratory Order This transaction is related to a labor protective conditions here because concurrently filed verified notice of AGENCY: Surface Transportation Board. all of the carriers involved are Class III exemption in Docket No. FD 35575, ACTION: Institution of declaratory order carriers. Watco Holdings, Inc.—Continuance in proceeding; request for comments. If the notice contains false or Control Exemption—Swan Ranch SUMMARY: In response to a petition filed misleading information, the exemption Railroad, L.L.C., wherein Watco seeks by Union Pacific Railroad Company is void ab initio. Petitions to revoke the Board approval to continue in control of (UP) on April 27, 2011, the Board is exemption under 49 U.S.C. 10502(d) SRR, upon SRR’s becoming a Class III instituting a declaratory order may be filed at any time. The filing of rail carrier. proceeding under 49 U.S.C. 721 and 5 a petition to revoke will not Applicant states that the agreement U.S.C. 554(e). UP requests that the automatically stay the effectiveness of between SRR and CLH does not contain Board issue a declaratory order to the exemption. Stay petitions must be any provision that prohibits SRR from resolve a controversy regarding the filed no later than December 21, 2011 (at interchanging traffic with a third party reasonableness of the indemnification least 7 days before the exemption or limits SRR’s ability to interchange provisions in UP’s tariff relating to becomes effective). with a third party. transportation of toxic by inhalation The transaction may be consummated hazardous commodities (TIH). The An original and 10 copies of all on or after December 28, 2011 (30 days pleadings, referring to Docket No. FD Board seeks public comment on the after the notice of exemption was filed). issues raised in this case. 35575, must be filed with the Surface SRR certifies that its projected annual DATES: Any person who wishes to Transportation Board, 395 E Street SW., revenues as a result of the transaction participate in this proceeding as a party Washington, DC 20423–0001. In will not result in SRR’s becoming a of record (POR) must file, no later than addition, one copy of each pleading Class II or Class I rail carrier and will December 27, 2011, a notice of intent to must be served on Karl Morell, Of not exceed $5 million. participate. Opening evidence and Counsel, Ball Janik, LLP, Suite 225, If the verified notice contains false or argument from all PORs is due on Fifteenth Street NW., Washington, DC misleading information, the exemption January 25, 2012. Reply evidence and 20005. is void ab initio. Petitions to revoke the argument from all PORs is due on exemption under 49 U.S.C. 10502(d) Board decisions and notices are March 12, 2012. Rebuttal evidence and may be filed at any time. The filing of available on our Web site at http:// argument from all PORs is due on a petition to revoke will not www.stb.dot.gov. March 26, 2012. automatically stay the effectiveness of Decided: December 9, 2011. the exemption. Stay petitions must be ADDRESSES: Any filing submitted in this By the Board. filed by December 21, 2011 (at least 7 proceeding must be submitted either via days before the exemption becomes the Board’s e-filing format or in the Rachel D. Campbell, traditional paper format. Any person Director, Office of Proceedings. effective). An original and 10 copies of all using e-filing should attach a document Raina S. White. pleadings, referring to Docket No. FD and otherwise comply with the Clearance Clerk, 35574, must be filed with the Surface instructions at the E-FILING link on the [FR Doc. 2011–32068 Filed 12–13–11; 8:45 am] Transportation Board, 395 E Street, SW., Board’s Web site, at http://www.stb.dot. gov. Any person submitting a filing in BILLING CODE 4915–01–P Washington, DC 20423–0001. In addition, a copy of each pleading must the traditional paper format should send be served on Karl Morell, Of Counsel, an original and 10 copies (and also an Ball Janik LLP, Suite 225, 655 Fifteenth electronic version), referring to Docket Street, NW., Washington, DC 20005. No. FD 35504, to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In 1 SRR is a wholly owned, indirect subsidiary of Watco Holdings, Inc. (Watco). addition, 1 copy of each filing in this 2 According to SRR, there are no mileposts proceeding must be sent (and may be associated with the tracks. sent by email if service by email is

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77891

acceptable to the recipient) to each of 1101(a) and what rules and practices a held Tuesday, January 10, 2012, at 9 the following (1) Michael L. Rosenthal, rail carrier can reasonably establish in a.m. Pacific Time via telephone Covington & Burling LLP, 1201 its response to a request to transport TIH conference. The public is invited to Pennsylvania Avenue NW., Washington, under 49 U.S.C. 10702. make oral comments or submit written DC 20004–2401, [email protected] Under 5 U.S.C. 554(e), the Board has statements for consideration. Due to (representing UP); (2) David L. Coleman, discretionary authority to issue a limited conference lines, notification of Law Department, Norfolk Southern declaratory order to terminate a intent to participate must be made with Corporation, Three Commercial Place, controversy or remove uncertainty. The Timothy Shepard. For more information Norfolk, VA 23510–9241, david. issues raised by UP merit further please contact Mr. Shepard at 1–(888) [email protected] (representing consideration, and a declaratory order 912–1227 or (206) 220–6095, or write Norfolk Southern Railway Company); proceeding is thus instituted here. Due TAP Office, 915 2nd Avenue, MS W– (3) David F. Rifkind, Leonard, Street, to the significance of this matter to TIH 406, Seattle, WA 98174, or contact us at and Deinard, 1350 I Street NW., Suite shippers, railroads, and other interested the web site: http://www.improveirs.org. 800, Washington, DC 20005, david. parties, we are opening this declaratory The agenda will include various IRS [email protected] (representing order proceeding for public Issues. Canadian Pacific Railway Company); (4) participation. Any person seeking to Dated: December 8, 2011. comment on the issues raised in UP’s Gregory M. Leitner, Husch Blackwell Marian Adams, LLP, 736 Georgia Avenue, Chattanooga, petition may submit written comments Director, Taxpayer Advocacy Panel. TN 37402, gregory.leitner@ to the Board pursuant to the schedule huschblackwell.com (representing Olin and procedures set forth in this notice. [FR Doc. 2011–32032 Filed 12–13–11; 8:45 am] Corporation and SunBelt Chlor Alkali For further information, please see the BILLING CODE 4830–01–P Partnership); (5) Peter A. Pfohl, Slover Board’s decision served on December & Loftus LLP, 1224 17th Street NW., 12, 2011, in Docket No. FD 35504. DEPARTMENT OF THE TREASURY Washington, DC 20036–3003, pap@ Board decisions and notices are sloverandloftus.com (representing Dyno available on our Web site at http://www. Internal Revenue Service Nobel Inc.); (6) Jeffrey O. Moreno, stb.dot.gov. Thompson Hine LLP, 1920 N Street Decided: December 8, 2011. Open Meeting of the Taxpayer NW., Washington, DC 20036, jeff. By the Board, Chairman Elliott, Vice Advocacy Panel Return Processing [email protected] Chairman Begeman, and Commissioner Delays Project Committee (representing The Fertilizer Institute Mulvey. and the American Chemistry Council); AGENCY: Internal Revenue Service (IRS), Jeffrey Herzig, Treasury. (7) Paul M. Donovan, LaRoe, Winn, Clearance Clerk. Moerman & Donovan, 1250 Connecticut ACTION: Notice of meeting. Avenue NW., Suite 200, Washington, [FR Doc. 2011–32094 Filed 12–13–11; 8:45 am] DC 20036, [email protected] BILLING CODE 4915–01–P SUMMARY: An open meeting of the (representing The Chlorine Institute); Taxpayer Advocacy Panel Return and (8) any other person designated as Processing Delays Project Committee a POR on the service-list notice (as DEPARTMENT OF THE TREASURY will be conducted. The Taxpayer explained in the Board’s decision served Advocacy Panel is soliciting public Internal Revenue Service on December 12, 2011 1). comments, ideas, and suggestions on improving customer service at the FOR FURTHER INFORMATION CONTACT: Julia Open Meeting of the Taxpayer Internal Revenue Service. Farr, (202) 245–0359. [Assistance for the Advocacy Panel Bankruptcy DATES: The meeting will be held hearing impaired is available through Compliance Project Committee the Federal Information Relay Service Tuesday, January 3, 2012. (FIRS) at: 1–(800) 877–8339.] Copies of AGENCY: Internal Revenue Service (IRS), FOR FURTHER INFORMATION CONTACT: written comments will be available for Treasury. Janice Spinks at 1–888–912–1227 or viewing and self-copying at the Board’s ACTION: Notice of Meeting. 206–220–6098. Public Docket Room, Room 131, and SUPPLEMENTARY INFORMATION: Notice is SUMMARY: An open meeting of the will be posted to the Board’s Web site. hereby given pursuant to Section Taxpayer Advocacy Panel Bankruptcy 10(a)(2) of the Federal Advisory SUPPLEMENTARY INFORMATION: UP’s Compliance Project Committee will be Committee Act, 5 U.S.C. App. (1988) petition requests a declaratory order conducted. The Taxpayer Advocacy that an open meeting of the Taxpayer regarding Items 50 and 60 of UP Tariff Panel is soliciting public comments, Advocacy Panel Return Processing 6607, ‘‘General Rules for Movement of ideas, and suggestions on improving Delays Project Committee will be held Toxic or Poison Inhalation Commodity customer service at the Internal Revenue Tuesday, January 03, 2012, at 9:30 a.m. Shipments over the Lines of the Union Service. Pacific Railroad,’’ which are attached as Pacific Time via telephone conference. DATES: The meeting will be held an exhibit to the petition. These tariff The public is invited to make oral Tuesday, January 10, 2012. provisions require TIH shippers to comments or submit written statements indemnify UP against all liabilities FOR FURTHER INFORMATION CONTACT: for consideration. Due to limited except those caused by the sole, Timothy Shepard at 1–(888) 912–1227 conference lines, notifications of intent contributory, or concurring negligence or (206) 220–6095. to participate must be made with Ms. or fault of UP. UP’s petition raises SUPPLEMENTARY INFORMATION: Notice is Janice Spinks. For more information questions about what constitutes a hereby given pursuant to Section please contact Ms. Spinks at 1 (888) reasonable request for service involving 10(a)(2) of the Federal Advisory 912–1227 or (206) 220–6098, or write transportation of TIH under 49 U.S.C. Committee Act, 5 U.S.C. App. (1988) TAP Office, 915 2nd Avenue, MS W– that a meeting of the Taxpayer 406, Seattle, WA 98174 or post 1 The service-list notice will be issued as soon Advocacy Panel Bankruptcy comments to the web site: http:// after December 27, 2011, as practicable. Compliance Project Committee will be www.improveirs.org.

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77892 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

The agenda will include various IRS DEPARTMENT OF THE TREASURY will be conducted. The Taxpayer issues. Advocacy Panel is soliciting public Internal Revenue Service Dated: December 8, 2011. comments, ideas and suggestions on improving customer service at the Marian Adams, Open Meeting of the Taxpayer Internal Revenue Service. Advocacy Panel Toll-Free Project Director, Taxpayer Advocacy Panel. DATES: The meeting will be held Committee [FR Doc. 2011–32010 Filed 12–13–11; 8:45 am] Wednesday, January 18, 2012. BILLING CODE P AGENCY: Internal Revenue Service (IRS) FOR FURTHER INFORMATION CONTACT: Treasury. Audrey Y. Jenkins at 1–(888) 912–1227 ACTION: Notice of meeting. or (718) 488–2085. DEPARTMENT OF THE TREASURY SUPPLEMENTARY INFORMATION: Notice is SUMMARY: An open meeting of the Internal Revenue Service hereby given pursuant to section 10 (a) Taxpayer Advocacy Panel Toll-Free (2) of the Federal Advisory Committee Project Committee will be conducted. Open Meeting of the Taxpayer Act, 5 U.S.C. App. (1988) that an open The Taxpayer Advocacy Panel is meeting of the Taxpayer Advocacy Advocacy Panel Tax Forms and soliciting public comments, ideas and Publications Project Committee Panel Taxpayer Burden Reduction suggestions on improving customer Project Committee will be held service at the Internal Revenue Service. AGENCY: Internal Revenue Service (IRS), Wednesday, January 18, 2012, at 2:30 DATES: The meeting will be held Treasury. p.m. Eastern Time via telephone Tuesday, January, 3, 2012. conference. The public is invited to ACTION: Notice of meeting. FOR FURTHER INFORMATION CONTACT: make oral comments or submit written Marianne Dominguez at 1–(888) 912– statements for consideration. Due to SUMMARY: An open meeting of the 1227 or (954) 423–7978. limited conference lines, notification of Taxpayer Advocacy Panel Tax Forms SUPPLEMENTARY INFORMATION: Notice is intent to participate must be made with and Publications Project Committee will hereby given pursuant to Section Ms. Jenkins. For more information be conducted. The Taxpayer Advocacy 10(a)(2) of the Federal Advisory please contact Ms. Jenkins at 1–(888) Panel is soliciting public comments, Committee Act, 5 U.S.C. App. (1988) 912–1227 or (718) 488–2085, or write ideas and suggestions on improving that an open meeting of the Taxpayer TAP Office, 10 MetroTech Center, 625 customer service at the Internal Revenue Advocacy Panel Toll-Free Project Fulton Street Brooklyn, NY 11201, or Service. Committee will be held Tuesday, post comments to the Web site: http:// January 03, 2012, at 2 p.m. Eastern Time www.improveirs.org. DATES: The meeting will be held via telephone conference. The public is The agenda will include various IRS Wednesday, January 11, 2012. invited to make oral comments or issues. FOR FURTHER INFORMATION CONTACT: submit written statements for Dated: December 7, 2011. Marisa Knispel at 1–(888) 912–1227 or consideration. Due to limited Marian Adams, (718) 488–3557. conference lines, notification of intent Director, Taxpayer Advocacy Panel. to participate must be made with [FR Doc. 2011–32036 Filed 12–13–11; 8:45 am] SUPPLEMENTARY INFORMATION: Notice is Marianne Dominguez. For more BILLING CODE 4830–01–P hereby given pursuant to section information please contact Ms. 10(a)(2) of the Federal Advisory Dominguez at 1–(888) 912–1227 or (954) Committee Act, 5 U.S.C. App. (1988) 423–7978, or write TAP Office, 1000 DEPARTMENT OF THE TREASURY that an open meeting of the Taxpayer South Pine Island Road Suite 340, Advocacy Panel Tax Forms and Plantation, FL 33324, or contact us at Internal Revenue Service Publications Project Committee will be the Web site: http://www.improveirs.org. held Wednesday, January 11, 2012, at 2 The agenda will include various IRS Open Meeting of the Taxpayer p.m. Eastern Time via telephone issues. Advocacy Panel Refund Processing Communications Project Committee conference. The public is invited to Dated: December 7, 2011. make oral comments or submit written Marian Adams, AGENCY: Internal Revenue Service (IRS) statements for consideration. Due to Director, Taxpayer Advocacy Panel. Treasury. limited conference lines, notification of [FR Doc. 2011–32033 Filed 12–13–11; 8:45 am] ACTION: Notice of meeting. intent to participate must be made with BILLING CODE 4830–01–P Ms. Knispel. For more information SUMMARY: An open meeting of the please contact Ms. Knispel at 1–(888) Taxpayer Advocacy Panel Refund 912–1227 or (718) 488–3557, or write DEPARTMENT OF THE TREASURY Processing Communications Project TAP Office, 10 MetroTech Center, 625 Committee will be conducted. The Fulton Street, Brooklyn, NY 11201, or Internal Revenue Service Taxpayer Advocacy Panel is soliciting post comments to the Web site: http:// public comments, ideas, and Open Meeting of Taxpayer Advocacy www.improveirs.org. suggestions on improving customer Panel Taxpayer Burden Reduction service at the Internal Revenue Service. The agenda will include various IRS Project Committee DATES: The meeting will be held issues. AGENCY: Internal Revenue Service (IRS), Tuesday, January 03, 2012. Dated: December 7, 2011. Treasury. FOR FURTHER INFORMATION CONTACT: Ellen Smiley at 1–(888) 912–1227 or Marian Adams, ACTION: Notice of meeting. Director, Taxpayer Advocacy Panel. (414) 231–2360. [FR Doc. 2011–32008 Filed 12–13–11; 8:45 am] SUMMARY: An open meeting of the SUPPLEMENTARY INFORMATION: Notice is BILLING CODE 4830–01–P Taxpayer Advocacy Panel Taxpayer hereby given pursuant to Section Burden Reduction Project Committee 10(a)(2) of the Federal Advisory

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices 77893

Committee Act, 5 U.S.C. App. (1988) to participate must be made with Ms. OMB Control Number: 2900–0061. that an open meeting of the Taxpayer Patricia Robb. For more information Type of Review: Extension of a Advocacy Panel Refund Processing please contact Ms. Robb at 1–(888) 912– currently approved collection. Communications Project Committee will 1227 or (414) 231–2360, or write TAP Abstract: VA Form 28–1905m is used be held Tuesday, January 03, 2012 at 2 Office Stop 1006MIL, 211 West to request supplies for veterans in p.m. Eastern Time via telephone Wisconsin Avenue Milwaukee, WI rehabilitation programs. The official at conference. The public is invited to 53203–2221, or post comments to the the facility providing rehabilitation make oral comments or submit written Web site: http://www.improveirs.org. services to veterans completes the form statements for consideration. Due to The agenda will include various IRS and certifies that the veteran needs the limited conference lines, notification of issues. supplies for his or her program, and do intent to participate must be made with not have the requested item in his or her Dated: December 8, 2011. possession. Ms. Ellen Smiley. For more information Marian Adams, please contact Ms. Smiley at 1–(888) An agency may not conduct or Director, Taxpayer Advocacy Panel. 912–1227 or (414) 231–2360, or write sponsor, and a person is not required to TAP Office Stop 1006MIL, 211 West [FR Doc. 2011–32042 Filed 12–13–11; 8:45 am] respond to a collection of information Wisconsin Avenue Milwaukee, WI BILLING CODE 4830–01–P unless it displays a currently valid OMB 53203–2221, or post comments to the control number. The Federal Register Web site: http://www.improveirs.org. Notice with a 60-day comment period The agenda will include various IRS DEPARTMENT OF VETERANS soliciting comments on this collection issues. AFFAIRS of information was published on September 28, 2011, at pages 60133– Dated: December 8, 2011. [OMB Control No. 2900–0061] 60134. Marian Adams, Affected Public: Not-for-profit Agency Information Collection Director, Taxpayer Advocacy Panel. institutions. (Request for Supplies (Chapter 31– Estimated Annual Burden: 16,000 [FR Doc. 2011–32038 Filed 12–13–11; 8:45 am] Vocational Rehabilitation)): Activity BILLING CODE 4830–01–P hours. Under OMB Review Estimated Average Burden per AGENCY: Veterans Benefits Respondent: 60 minutes. DEPARTMENT OF THE TREASURY Administration, Department of Veterans Frequency of Response: On occasion. Affairs. Estimated Number of Respondents: Internal Revenue Service 16,000. ACTION: Notice. Dated: December 9, 2011. Open Meeting of the Taxpayer SUMMARY: In compliance with the By direction of the Secretary. Advocacy Panel Small Business/Self- Paperwork Reduction Act (PRA) of 1995 Denise McLamb, Employed Decreasing Non-Filers (44 U.S.C. 3501–3521), this notice Project Committee Program Analyst, Enterprise Records Service. announces that the Veterans Benefits [FR Doc. 2011–32029 Filed 12–13–11; 8:45 am] AGENCY: Internal Revenue Service (IRS) Administration (VBA), Department of BILLING CODE 8320–01–P Treasury. Veterans Affairs, will submit the collection of information abstracted ACTION: Notice of meeting. below to the Office of Management and DEPARTMENT OF VETERANS SUMMARY: An open meeting of the Budget (OMB) for review and comment. AFFAIRS The PRA submission describes the Taxpayer Advocacy Panel Small [OMB Control No. 2900–0368] Business/Self-Employed Decreasing nature of the information collection and Non-Filers Project Committee will be its expected cost and burden; it includes Agency Information Collection conducted. The Taxpayer Advocacy the actual data collection instrument. (Monthly Statement of Wages Paid to Panel is soliciting public comments, DATES: Comments must be submitted on Trainee): Activity Under OMB Review ideas, and suggestions on improving or before January 13, 2012. AGENCY: Veterans Benefits customer service at the Internal Revenue ADDRESSES: Submit written comments Administration, Department of Veterans Service. on the collection of information through Affairs. DATES: The meeting will be held http://www.Regulations.gov or to VA’s Tuesday, January 17, 2012. OMB Desk Officer, OMB Human ACTION: Notice. FOR FURTHER INFORMATION CONTACT: Resources and Housing Branch, New SUMMARY: In compliance with the Patricia Robb at 1–(888) 912–1227 or Executive Office Building, Room 10235, Paperwork Reduction Act (PRA) of 1995 (414) 231–2360. Washington, DC 20503 (202) 395–7316. (44 U.S.C. 3501–3521), this notice SUPPLEMENTARY INFORMATION: Notice is Please refer to ‘‘OMB Control No. 2900– announces that the Veterans Benefits hereby given pursuant to Section 0061’’ in any correspondence. Administration (VBA), Department of 10(a)(2) of the Federal Advisory FOR FURTHER INFORMATION CONTACT: Veterans Affairs, will submit the Committee Act, 5 U.S.C. App. (1988) Denise McLamb, Enterprise Records collection of information abstracted that an open meeting of the Taxpayer Service (005R1B), Department of below to the Office of Management and Advocacy Panel Small Business/Self- Veterans Affairs, 810 Vermont Avenue Budget (OMB) for review and comment. Employed Decreasing Non-Filers Project NW, Washington, DC 20420, (202) 461– The PRA submission describes the Committee will be held Tuesday, 7485, FAX (202) 461–0966 or email nature of the information collection and January 17, 2012 at 10 a.m. Eastern [email protected]. Please refer to its expected cost and burden; it includes Time via telephone conference. The ‘‘OMB Control No. 2900–0061.’’ the actual data collection instrument. public is invited to make oral comments SUPPLEMENTARY INFORMATION: DATES: Comments must be submitted on or submit written statements for Title: Request for Supplies (Chapter or before January 13, 2012. consideration. Due to limited 31—Vocational Rehabilitation), VA ADDRESSES: Submit written comments conference lines, notification of intent Form 28–1905m. on the collection of information through

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES 77894 Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Notices

http://www.Regulations.gov or to VA’s OMB Control Number: 2900–0368. of information was published on OMB Desk Officer, OMB Human Type of Review: Extension of a September 28, 2011, at page 60134. Resources and Housing Branch, New currently approved collection. Affected Public: Business or other for- Executive Office Building, Room 10235, profit. Washington, DC 20503 (202) 395–7316. Abstract: Employers providing on-job Estimated Annual Burden: 1,800 Please refer to ‘‘OMB Control No. 2900– or apprenticeship training to veterans hours. 0368’’ in any correspondence. complete VA Form 28–1917 to report Estimated Average Burden Per each veteran’s wages during the Respondent: 30 minutes. FOR FURTHER INFORMATION CONTACT: preceding month. VA uses the Frequency of Response: Monthly. Denise McLamb, Enterprise Records information to determine whether the Estimated Number of Respondents: Service (005R1B), Department of veteran is receiving the appropriate 300. Veterans Affairs, 810 Vermont Avenue wage increase and correct rate of Estimated Total Annual Responses: NW, Washington, DC 20420, (202) 461– subsistence allowance. 7485, FAX (202) 461–0966 or email 3,600. An agency may not conduct or [email protected]. Please refer to Dated: December 9, 2011. sponsor, and a person is not required to ‘‘OMB Control No. 2900–0368.’’ respond to a collection of information By direction of the Secretary. SUPPLEMENTARY INFORMATION: unless it displays a currently valid OMB Denise McLamb, Title: Monthly Statement of Wages control number. The Federal Register Program Analyst, Enterprise Records Service. Paid to Trainee (Chapter 31, Title 38, Notice with a 60-day comment period [FR Doc. 2011–32030 Filed 12–13–11; 8:45 am] U.S.C.), VA Form 28–1917. soliciting comments on this collection BILLING CODE 8320–01–P

VerDate Mar<15>2010 15:14 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00129 Fmt 4703 Sfmt 9990 E:\FR\FM\14DEN1.SGM 14DEN1 mstockstill on DSK4VPTVN1PROD with NOTICES i

Reader Aids Federal Register Vol. 76, No. 240 Wednesday, December 14, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

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. Proposed Rules: Presidential Documents 2 CFR 20...... 77431 Executive orders and proclamations 741–6000 421...... 76609 30...... 77431 The United States Government Manual 741–6000 32...... 76625 3 CFR Other Services 40...... 77431 Electronic and on-line services (voice) 741–6020 Proclamations: 50...... 76322, 77431 8760...... 76021 70...... 77431 Privacy Act Compilation 741–6064 8761...... 76023 72...... 77431 Public Laws Update Service (numbers, dates, etc.) 741–6043 8762...... 76025 73...... 76327 741–6086 TTY for the deaf-and-hard-of-hearing 8763...... 76601 Ch. II ...... 75798 8764...... 76871 429...... 76328 ELECTRONIC RESEARCH 8765...... 77363 430...... 76328 World Wide Web 8766...... 77365 Ch. III ...... 75798 900...... 77432 Full text of the daily Federal Register, CFR and other publications Executive Orders: 13592...... 76603 Ch. X...... 75798 is located at: www.fdsys.gov. Administrative Orders: Federal Register information and research tools, including Public Memorandums: 12 CFR Inspection List, indexes, and links to GPO Access are located at: Memorandum of July 225...... 74631 www.ofr.gov. 19, 2011 ...... 76869 912...... 74648 E-mail Memorandum of 997...... 74648 November 28, FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 1780...... 74648 2011 ...... 75423 an open e-mail service that provides subscribers with a digital 1781...... 74648 1782...... 74648 form of the Federal Register Table of Contents. The digital form 4 CFR of the Federal Register Table of Contents includes HTML and 1783...... 74648 PDF links to the full text of each document. 28...... 76873 1784...... 74648 1785...... 74648 To join or leave, go to http://listserv.access.gpo.gov and select 5 CFR 1786...... 74648 Online mailing list archives, FEDREGTOC-L, Join or leave the list Proposed Rules: 1787...... 74648 (or change settings); then follow the instructions. Ch. XXIII ...... 75798 1788...... 74648 PENS (Public Law Electronic Notification Service) is an e-mail 1789...... 74648 service that notifies subscribers of recently enacted laws. 7 CFR 1790...... 74648 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 761...... 75427 1791...... 74648 and select Join or leave the list (or change settings); then follow 763...... 75427 1792...... 74648 the instructions. 764...... 75427 1793...... 74648 3021...... 76609 1794...... 74648 FEDREGTOC-L and PENS are mailing lists only. We cannot Proposed Rules: 1795...... 74648 respond to specific inquiries. 400...... 75799 1796...... 74648 Reference questions. Send questions and comments about the 457...... 75805 1797...... 74648 Federal Register system to: [email protected] 1700...... 76905 1798...... 74648 The Federal Register staff cannot interpret specific documents or 1799...... 74648 8 CFR regulations. Proposed Rules: 280...... 74625 5...... 76905 Reminders. Effective January 1, 2009, the Reminders, including 1280...... 74625 380...... 77442 Rules Going Into Effect and Comments Due Next Week, no longer Ch. X ...... 75825, 76628 appear in the Reader Aids section of the Federal Register. This 9 CFR information can be found online at http://www.regulations.gov. 201...... 76874 13 CFR CFR Checklist. Effective January 1, 2009, the CFR Checklist no 317...... 76890 Proposed Rules: longer appears in the Federal Register. This information can be 381...... 76890 107...... 76907 found online at http://bookstore.gpo.gov/. Proposed Rules: 121...... 74749 316...... 75809 125...... 74749 FEDERAL REGISTER PAGES AND DATE, DECEMBER 317...... 75809 300...... 76492 320...... 75809 301...... 76492 74625–75426...... 1 331...... 75809 302...... 76492 75427–75770...... 2 354...... 75809 303...... 76492 75771–76020...... 5 355...... 75809 304...... 76492 76021–76292...... 6 381...... 75809 305...... 76492 76293–76600...... 7 412...... 75809 306...... 76492 76601–76872...... 8 424...... 75809 307...... 76492 76873–77106...... 9 308...... 76492 77107–77362...... 12 10 CFR 310...... 76492 77363–77668...... 13 50...... 74630, 75771 311...... 76492 77669–77894...... 14 52...... 74630, 75771 314...... 76492

VerDate Mar 15 2010 19:45 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\14DECU.LOC 14DECU mstockstill on DSK4VPTVN1PROD with FEDREGCU ii Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Reader Aids

14 CFR 171...... 76103 36 CFR 8...... 76896 23...... 75736 7...... 77131 24...... 77712 24 CFR 30...... 77712 25...... 74649 Proposed Rules: 70...... 77712 27...... 74655 91...... 75954, 75994 1190...... 75844 90...... 77712 29...... 74655, 75435 576...... 75954 1193...... 76640, 77738 91...... 77712 39 ...... 74665, 74667, 75442, 582...... 75994 1194...... 76640, 77738 75772, 76027, 76293, 77107, 583...... 75994 126...... 77128 77108, 77367, 77369, 77371, Proposed Rules: 37 CFR 188...... 77712 506...... 74720 77375, 77376, 77378, 77380, 50...... 77162 1...... 74700 77382 55...... 77162 381...... 74703 47 CFR 71 ...... 75445, 75446, 75447, 58...... 77162 386...... 74703 0...... 74721 75448, 75449, 76891, 77383, 91...... 76917 8...... 74721 77669 576...... 76917 38 CFR 20...... 74721, 77415 73...... 77386 580...... 76917 9...... 75458 61...... 76623 91...... 76611 583...... 76917 Proposed Rules: 69...... 76623 97...... 77111, 77113 26 CFR 9...... 77455 101...... 74722 Proposed Rules: 17...... 75509 Proposed Rules: 35...... 74749 1 ...... 75774, 75781, 76895 31...... 77672 39 CFR 20...... 77747 39 ...... 76066, 76068, 76330, 73...... 76337 77157, 77159, 77446 301...... 76037 20...... 75786, 76619 71 ...... 76070, 77448, 77449, Proposed Rules: 111 ...... 74704, 75461, 77133 48 CFR 1 ...... 75829, 76633, 77454 77450, 77451, 77727 501...... 77149 52...... 76899 77...... 76333 27 CFR Proposed Rules: 202...... 76318 121...... 77452 501...... 74753 204...... 76318 9 ...... 77677, 77684, 77696 135...... 77452 205...... 76318 40 CFR 142...... 77452 Proposed Rules: 206...... 76318 183...... 77453 9...... 75830 9...... 75794, 76300 207...... 76318 19...... 75836 15 CFR 52 ...... 75464, 75467, 75795, 209...... 76318 28 CFR 76046, 76048, 76302, 76620, 211...... 76318 730...... 76892 77150, 77701 212...... 76318 732...... 77115 50...... 76037 63...... 74708 213...... 76318 734...... 76892 29 CFR 70...... 77701 214...... 76318 736...... 76892, 77115 81...... 76048, 76302 215...... 76318 738...... 77115 102...... 77699 93...... 75797 216...... 76318 740...... 77115 1910...... 75782 180 ...... 76304, 76309, 77703, 217...... 76318 742...... 76892, 77115 4044...... 74699 77709 219...... 76318 744...... 76892 Proposed Rules: 261...... 74709 225...... 76318 745...... 76892 1910...... 75840 300 ...... 76048, 76314, 77388 227...... 76318 746...... 77115 2520...... 76222 721...... 75794, 76300 234...... 76318 774...... 77115 2560...... 76235 Proposed Rules: 237...... 76318 801...... 76029 2571...... 76235 52 ...... 75845, 75849, 75857, 243...... 76318 902...... 74670 76112, 76115, 76646, 76673, 252...... 76318 30 CFR 922...... 77670 76929, 77178, 77182, 77739, Ch. II ...... 76318 Proposed Rules: 1206...... 76612 77742 422...... 74722 740...... 76072 1210...... 76612 63...... 76260 Proposed Rules: 742...... 76072, 76085 1218...... 76612 70...... 74755, 77742 215...... 75512 770...... 76085 1220...... 76612 85...... 74854, 76932 252...... 75512 774...... 76072, 76085 1227...... 76612 86...... 74854, 76932 422...... 74755 1228...... 76612 16 CFR 136...... 77742 1243...... 76612 152...... 76335 49 CFR 437...... 76816 Proposed Rules: 180...... 76674 177...... 75470 Proposed Rules: 904...... 76104 261...... 76677 269...... 77716 Ch. II ...... 75504 906...... 76109 281...... 76684 383...... 75470 926...... 76111 300 ...... 76118, 76336, 77457 17 CFR 384...... 75470 Ch. XII...... 76634 600...... 74854, 76932 390...... 75470 1...... 77670 391...... 75470 31 CFR Proposed Rules: 41 CFR 392...... 75470 37...... 77728 538...... 76617 102-34...... 76622 575...... 74723 38...... 77728 Proposed Rules: 33 CFR Proposed Rules: 60-741...... 77056 19 CFR 386...... 77458 100...... 77119 523...... 74854, 76932 12...... 74690, 74691 110...... 76295 42 CFR 531...... 74854, 76932 117 ...... 76297, 76298, 76299 401...... 76542 21 CFR 533...... 74854, 76932 155...... 76299 536...... 74854, 76932 558...... 76894 165 ...... 75450, 76044, 77121, 44 CFR 537...... 74854, 76932 1308...... 77330 77125 64...... 74717 571...... 77183 1314...... 74696 334...... 75453 65...... 76052, 77155 830...... 76686 Proposed Rules: Proposed Rules: 67...... 76055, 76060 1140...... 76096 117 ...... 75505, 76634, 76637 50 CFR 165...... 76640, 77175 45 CFR 622...... 75488 22 CFR 167...... 76927 156...... 77392 635...... 75492, 76900 22...... 76032 334...... 75508 158...... 76574, 76596 640...... 75488 126...... 76035 648...... 74724 Proposed Rules: 34 CFR 46 CFR 660...... 74725, 77415 121...... 76097, 76100 99...... 75604 2...... 77712 665...... 74747

VerDate Mar 15 2010 19:45 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\14DECU.LOC 14DECU mstockstill on DSK4VPTVN1PROD with FEDREGCU Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Reader Aids iii

679 ...... 74670, 76902, 76903 680...... 74670 Proposed Rules: 17...... 75858, 76337 223 ...... 77465, 77466, 77467 224...... 77467 622...... 74757 648...... 77200 679...... 77757

VerDate Mar 15 2010 19:45 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\14DECU.LOC 14DECU mstockstill on DSK4VPTVN1PROD with FEDREGCU iv Federal Register / Vol. 76, No. 240 / Wednesday, December 14, 2011 / Reader Aids

The text of laws is not H.R. 394/P.L. 112–63 enacted public laws. To published in the Federal Federal Courts Jurisdiction subscribe, go to http:// LIST OF PUBLIC LAWS Register but may be ordered and Venue Clarification Act of listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual 2011 (Dec. 7, 2011; 125 Stat. publaws-l.html This is a continuing list of pamphlet) form from the 758) public bills from the current Superintendent of Documents, Last List December 5, 2011 session of Congress which U.S. Government Printing Note: This service is strictly have become Federal laws. It Office, Washington, DC 20402 for E-mail notification of new may be used in conjunction (phone, 202–512–1808). The Public Laws Electronic laws. The text of laws is not with ‘‘P L U S’’ (Public Laws text will also be made Notification Service available through this service. Update Service) on 202–741– available on the Internet from (PENS) PENS cannot respond to 6043. This list is also GPO’s Federal Digital System specific inquiries sent to this available online at http:// (FDsys) at http://www.gpo.gov/ address. www.archives.gov/federal- fdsys. Some laws may not yet PENS is a free electronic mail register/laws. be available. notification service of newly

VerDate Mar 15 2010 19:45 Dec 13, 2011 Jkt 226001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\14DECU.LOC 14DECU mstockstill on DSK4VPTVN1PROD with FEDREGCU