Vol. 76 Wednesday, No. 207 October 26, 2011

Pages 66169–66600

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 207

Wednesday, October 26, 2011

Advisory Council on Historic Preservation National Maritime Security Advisory Committee, 66313– See Historic Preservation, Advisory Council 66314

Agency for Healthcare Research and Quality Commerce Department NOTICES See Industry and Security Bureau Scientific Information Requests: See International Trade Administration Phototherapy for Treatment of Chronic Plaque Psoriasis, See National Oceanic and Atmospheric Administration 66307–66308

Agriculture Department Defense Acquisition Regulations System See Office of Advocacy and Outreach NOTICES See Rural Utilities Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 66282–66283 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66269–66270 Defense Department See Army Department Antitrust Division See Defense Acquisition Regulations System NOTICES See Navy Department National Cooperative Research and Production Act of 1993: NOTICES Advanced Media Workflow Association, Inc., 66324 Defense Transportation Regulation, Part IV, 66281 Cooperative Research Group on Development of a Predictive Model for Corrosion-Fatigue of Materials Education Department in Sour Environment, 66325 PROPOSED RULES Cooperative Research Group on NASGRO Development Teacher Preparation and TEACH Grant Programs: and Support, 66324–66325 Negotiated Rulemaking Committee, Negotiator Nominations and Schedule of Committee Meetings, Army Department 66248–66249 NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Meetings: Stationing and Operation of Joint High Speed Vessels; Committee on Measures of Student Success, 66283 Withdrawal, 66281–66282 Meetings: Army Education Advisory Committee, 66282 Employment and Training Administration NOTICES Centers for Disease Control and Prevention Amended Certifications Regarding Eligibility To Apply for NOTICES Worker and Alternative Trade Adjustment Assistance: Statement of Organization, Functions, and Delegations of Callaway Golf Ball Operations, Inc., et al., Chicopee, MA, Authority, 66308–66309 66328 Iron Mountain Information Management, Inc., Corporate Centers for Medicare & Medicaid Services Service Group, et al., Boston, MA, 66327–66328 NOTICES Determinations Regarding Eligibility to Apply for Worker Pilot Program for Parallel Review of Medical Products: and Alternative Trade Adjustment Assistance, 66328– Correction, 66309 66330 Investigations Regarding Certifications of Eligibility to Children and Families Administration Apply for Worker and Alternative Trade Ajustment NOTICES Assistance, 66331–66332 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66309–66310 Energy Department See Energy Efficiency and Renewable Energy Office Coast Guard See Federal Energy Regulatory Commission RULES Drawbridge Operations: Energy Efficiency and Renewable Energy Office Nanticoke, Seaford, DE, 66184 NOTICES Trent River, New Bern, NC, 66183–66184 PROPOSED RULES Meetings: Safety Zones: Wind and Water Power Program, 66284 Fireworks Displays within the Fifth Coast Guard District, 66239–66248 Environmental Protection Agency NOTICES RULES Meetings: Exemptions from the Requirement of a Tolerance: Lower Mississippi River Waterway Safety Advisory Bacteriophage of Clavibacter Michiganensis Subspecies Committee, 66314 Michiganensis, 66187–66192

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NOTICES Federal Communications Commission Clean Air Act Operating Permit Program: PROPOSED RULES Petition for Objection to State Operating Permit for Public Television Broadcasting Services: Service Co. of Colorado dba Xcel Energy – Cherokee Cleveland, OH, 66250 Power Station, 66286 Petition for Objection to State Operating Permit for Public Federal Energy Regulatory Commission Service Co. of Colorado dba Xcel Energy – Valmont PROPOSED RULES Power Station, 66285–66286 Automatic Underfrequency Load Shedding and Load Final 2010 Effluent Guidelines Program Plan, 66286–66304 Shedding Plans Reliability Standards, 66220–66229 Enhancement of Electricity Market Surveillance and Executive Office of the President Analysis, etc., 66211–66220 See Presidential Documents Transmission Planning Reliability Standards, 66229–66235 NOTICES Combined Filings, 66284–66285 Federal Aviation Administration RULES Federal Maritime Commission Revision of Class E Airspace: NOTICES Umiat, AK, 66178–66179 Agreements Filed, 66304 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures, 66179– Federal Motor Carrier Safety Administration 66181 PROPOSED RULES PROPOSED RULES Unified Registration System, 66506–66595 Airworthiness Directives: Boeing Co. Airplanes, 66200–66203 Federal Reserve System Bombardier, Inc. Model BD 700 1A10 and BD 700 1A11 NOTICES Airplanes, 66198–66200 Formations of, Acquisitions by, and Mergers of Bank Bombardier, Inc. Model CL 600 2B16 (CL 601 3A, CL 601 Holding Companies, 66304 3R, and CL 604 Variants) Airplanes, 66203–66205 Sikorsky Aircraft Corp. Model S–76A Helicopters, 66205– Federal Retirement Thrift Investment Board 66207 NOTICES Sikorsky Aircraft Corp. Model S–92A Helicopters, 66207– Meetings; Sunshine Act, 66304–66305 66211 NOTICES Agency Information Collection Activities; Proposals, Fiscal Service Submissions, and Approvals: NOTICES Aviation Insurance, 66348 Surety Companies Acceptable on Federal Bonds: FAA Airport Master Record, 66348–66349 Western National Mutual Insurance Co., 66361 Financial Responsibility for Licensed Launch Activities, 66349–66350 Fish and Wildlife Service General Aviation and Air Taxi Activity and Avionics PROPOSED RULES Survey, 66346–66347 Endangered and Threatened Wildlife and Plants: Hazardous Materials Training Requirements, 66347– 90-Day Finding on Petition to Delist the Coastal 66348 California Gnatcatcher, 66255–66260 Organization Designation Authorization, 66346 Designation of Critical Habitat for Lepidium papilliferum Training and Qualification Requirements for Check (Slickspot Peppergrass), 66250–66255 Airmen and Flight Instructors, 66349 Review of Native Species That Are Candidates for Type Certification Procedures for Changed Products, Listing; Annual Notice of Findings on Resubmitted 66347 Petitions, etc., 66370–66439 Meetings: NOTICES RTCA Special Committee 205–EUROCAE WG–71; Environmental Assessments; Availability, etc.: Software Considerations in Aeronautical Systems, Proposed Establishment of Everglades Headwaters 66350 National Wildlife Refuge and Conservation Area, RTCA Special Committee 222 Inmarsat Aeronautical 66321 Mobile Satellite (Route) Services, 66350–66351 Long Range Transportation Plans for Fish and Wildlife Petitions for Exemptions; Summaries of Petitions Received, Service Lands: 66351–66352 HI, IA, Northern NV, OR, WA, and Pacific Island Requests to Release Airport Property: Territories; Correction, 66321 Halifax County Airport (RZZ), Roanoke Rapids, NC, 66352 Food and Drug Administration PROPOSED RULES Bar Code Technologies for Drugs and Biological Products: Federal Bureau of Investigation Retrospective Review Under Executive Order 13563, NOTICES 66235–66238 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 66325–66326 Draft Documents to Support Submission of an Electronic Meetings: Common Technical Document; Availability, 66311 Council for the National Crime Prevention and Privacy Pilot Program for Parallel Review of Medical Products: Compact, 66326 Correction, 66309

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Health and Human Services Department Labor Department See Agency for Healthcare Research and Quality See Employment and Training Administration See Centers for Disease Control and Prevention See Labor–Management Standards Office See Centers for Medicare & Medicaid Services NOTICES See Children and Families Administration Agency Information Collection Activities; Proposals, See Food and Drug Administration Submissions, and Approvals: NOTICES Well-Being Supplement to the American Time Use Agency Information Collection Activities; Proposals, Survey, 66326–66327 Submissions, and Approvals, 66305–66306 Requirements and Registration for Leading Health Labor–Management Standards Office Indicators App Challenge, 66306–66307 RULES Labor Organization Officer and Employee Reports, 66442– Historic Preservation, Advisory Council 66504 NOTICES Meetings: Land Management Bureau Quarterly Business, 66311–66312 NOTICES Filing of Plats of Survey: Homeland Security Department Idaho, 66322 See Coast Guard Oregon/Washington, 66322–66323 NOTICES Agency Information Collection Activities; Proposals, National Highway Traffic Safety Administration Submissions, and Approvals, 66312–66313 NOTICES Agency Information Collection Activities; Proposals, Housing and Urban Development Department Submissions, and Approvals, 66352–66353 NOTICES Grant of Petitions for Decision of Inconsequential Agency Information Collection Activities; Proposals, Noncompliance: Submissions, and Approvals: Tireco, Inc., 66353–66354 Energy Efficient Mortgages, 66317 National Oceanic and Atmospheric Administration Family Unification Program, 66315–66316 Management Reviews of Multifamily Housing Programs, RULES 66317–66318 Fisheries of the Exclusive Economic Zone Off Alaska: Multifamily Insurance Benefits Claims Package, 66316– Pacific Cod by Catcher/Processors Using Pot Gear in the 66317 Bering Sea and Aleutian Islands Management Area, Single Family Mortgage Instruments, 66314–66315 66195–66196 Funding Awards, Fiscal Year 2010/2011: Pacific Cod by Vessels Harvesting Pacific Cod for Limited English Proficiency Initiative Program, 66318– Processing by the Inshore Component in the Western 66319 Regulatory Area of the Gulf of Alaska, 66196–66197 Operating Cost Adjustment Factors for 2012, 66319–66320 Fisheries of the Northeastern United States: Monkfish; Framework Adjustment 7, 66192–66195 PROPOSED RULES Industry and Security Bureau Fisheries of the Northeastern United States: RULES Atlantic Mackerel, Squid, and Butterfish Fisheries; Commerce Control List: Specifications and Management Measures, 66260– CFR Correction, 66181 66268 NOTICES Interior Department Applications for Exempted Fishing Permits: See Fish and Wildlife Service Snapper–Grouper Fishery off the Southern Atlantic States See Land Management Bureau and Coral and Coral Reefs Fishery in the South See National Park Service Atlantic, 66273–66274 See Surface Mining Reclamation and Enforcement Office Meetings: North Pacific Fishery Management Council, 66274 Internal Revenue Service Requests for Applications: RULES Cordell Bank National Marine Sanctuary Advisory Disregarded Entities; Excise Taxes and Employment Taxes, Council, 66274 66181–66183 Small Takes of Marine Mammals Incidental to Specified NOTICES Activities: Quarterly Publication of Individuals Who have Chosen to Pier 36/Brannan Street Wharf Project, San Francisco Bay, Expatriate, 66361–66367 CA, 66274–66281

International Trade Administration National Park Service NOTICES NOTICES Antidumping Duty Administrative Reviews; Results, National Register of Historic Places: Amendments, Extensions, etc.: Pending Nominations and Related Actions, 66323 Stainless Steel Plate in Coils from Belgium, 66271–66273 Navy Department Justice Department NOTICES See Antitrust Division Intent to Grant Partially Exclusive Patent Licenses: See Federal Bureau of Investigation BOLD Industries, Inc., 66283

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Nuclear Regulatory Commission Surface Transportation Board NOTICES NOTICES Applications for Amendments to Facility Operating Construction and Operation Exemptions: Licenses; Withdrawals: DesertXpress Enterprises, LLC and DesertXpress HSR Florida Power Corp., 66332 Corp., Victorville, CA, and Las Vegas, NV, 66354– Appointments to Performance Review Boards for Senior 66355 Executive Service, 66332–66333 Environmental Assessments; Availability, etc.: Transportation Department H. B. Robinson Steam Electric Plant, Unit No. 2, 66333– See Federal Aviation Administration 66334 See Federal Motor Carrier Safety Administration Environmental Assessments; Availibity, etc.: See National Highway Traffic Safety Administration Proposed License Renewal for Nuclear Fuel Services, Inc. See Surface Transportation Board in Erwin, TN, 66334–66336 Office of Advocacy and Outreach Treasury Department RULES See Fiscal Service Office of Advocacy and Outreach Federal Financial See Internal Revenue Service Assistance Programs, 66169–66178 PROPOSED RULES Effect of Election on Corporation: Postal Regulatory Commission Withdrawal, 66239 NOTICES NOTICES Post Office Closings, 66336–66339 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66355–66361 Postal Service RULES Veterans Affairs Department Organization and Administration; Establishment, NOTICES Classification, and Discontinuance, 66184–66187 Meetings: Joint Biomedical Laboratory Research and Development Presidential Documents and Clinical Science Research and Development ADMINISTRATIVE ORDERS Services Scientific Merit Review Board, 66367 Congo, Democratic Republic of the; Continuation of National Emergency (Notice of October 25, 2011), 66597–66599 Separate Parts In This Issue Public Debt Bureau See Fiscal Service Part II Interior Department, Fish and Wildlife Service, 66370– Rural Utilities Service 66439 NOTICES Agency Information Collection Activities; Proposals, Part III Submissions, and Approvals, 66270–66271 Labor Department, Labor–Management Standards Office, Securities and Exchange Commission 66442–66504 NOTICES Inaugural Roundtable of the Financial Reporting Series: Part IV Uncertainty in Financial Statements; How Much to Transportation Department, Federal Motor Carrier Safety Recognize and How Best to Communicate It, 66339 Administration, 66506–66595 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 66344– Part V 66345 Presidential Documents, 66597–66599 NYSE Arca, Inc, 66339–66344 State Department Reader Aids NOTICES Meetings: Consult the Reader Aids section at the end of this page for U.S. Advisory Commission on Public Diplomacy, 66345– phone numbers, online resources, finding aids, reminders, 66346 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Surface Mining Reclamation and Enforcement Office LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency Information Collection Activities; Proposals, archives, FEDREGTOC-L, Join or leave the list (or change Submissions, and Approvals, 66323–66324 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR Administrative Orders: Notices: Notice of October 25, 2011 ...... 66599 7 CFR Ch. XXV...... 66169 14 CFR 71...... 66178 97...... 66179 Proposed Rules: 39 (6 documents) ...... 66198, 66200, 66203, 66205, 66207, 66209 15 CFR 774 (2 documents) ...... 66181 18 CFR Proposed Rules: 35...... 66211 40 (2 documents) ...... 66220, 66229 21 CFR Proposed Rules: 201...... 66235 610...... 66235 26 CFR 301...... 66181 Proposed Rules: 1...... 66239 29 CFR 404...... 66442 33 CFR 117 (2 documents) ...... 66183, 66184 Proposed Rules: 165...... 66239 34 CFR Proposed Rules: Ch. VI...... 66248 39 CFR 241...... 66184 40 CFR 180...... 66187 47 CFR Proposed Rules: 73...... 66250 49 CFR Proposed Rules: 360...... 66506 365...... 66506 366...... 66506 368...... 66506 385...... 66506 387...... 66506 390...... 66506 392...... 66506 50 CFR 648...... 66192 679 (2 documents) ...... 66195, 66196 Proposed Rules: 17 (3 documents) ...... 66250, 66255, 66370 648...... 66260

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Rules and Regulations Federal Register Vol. 76, No. 207

Wednesday, October 26, 2011

This section of the FEDERAL REGISTER • Federal eRulemaking Portal: http:// programs. It will not have an annual contains regulatory documents having general www.regulations.gov. Follow the effect on the economy of $100 million applicability and legal effect, most of which instructions for submitting comments. or more, nor will it adversely affect the are keyed to and codified in the Code of • E—Mail: economy, a sector of the economy, Federal Regulations, which is published under [email protected]. Include productivity, competition, jobs, the 50 titles pursuant to 44 U.S.C. 1510. RIN 0503–ZA01 in the subject line of environment, public health or safety, or the message. State, local, or tribal governments or The Code of Federal Regulations is sold by • the Superintendent of Documents. Prices of Fax: 202–720–7136. Include RIN communities in a material way. new books are listed in the first FEDERAL 0503–ZA01 in the subject line of the Furthermore, it does not raise a novel REGISTER issue of each week. message. legal or policy issue arising out of legal • Mail: paper, disk, or CD–ROM mandates, the President’s priorities or submissions should be submitted to: principles set forth in the Executive DEPARTMENT OF AGRICULTURE Office of Advocacy and Outreach, U.S. Order. Department of Agriculture, Attn: Asher Office of Advocacy and Outreach Weinberg RIN 0503–ZA01, 1400 Regulatory Flexibility Act of 1980 Independence Avenue, Room 520–A, This interim rule has been reviewed 7 CFR Chapter XXV Stop 9801, Washington, DC 20250–9821 in accordance with the Regulatory • Hand Delivery/Courier: Office of Flexibility Act of 1980, as amended by RIN 0503–ZA01 Advocacy and Outreach, U.S. the Small Business Regulatory Department of Agriculture, Attn: Asher Enforcement Fairness Act of 1996, 5 Office of Advocacy and Outreach Weinberg RIN 0503–ZA01, 1400 U.S.C. 601–612. The Department Federal Financial Assistance Programs Independence Avenue, Room 520–A, concluded that the rule will not have a Washington, DC 20250–9821 significant economic impact on a AGENCY: Office of Advocacy and Instructions: All submissions received substantial number of small entities. Outreach, USDA. must include the agency name and RIN The rule does not involve regulatory ACTION: Interim rule with request for for this rulemaking. and informational requirements comments. FOR FURTHER INFORMATION CONTACT: regarding businesses, organizations, and Asher Weinberg, Grants Program governmental jurisdictions subject to SUMMARY: This interim rule establishes Manager, OASDFR Program, at (202) regulation. the regulations for the administrative 720–3112. provisions of all grants or cooperative Paperwork Reduction Act (PRA) SUPPLEMENTARY INFORMATION: agreements to be administered by the The Department certifies that this Office of Advocacy and Outreach I. Introduction interim rule has been assessed in (OAO), established by the Food, The FCEA amended the Department accordance with the requirements of the Conservation, and Energy Act of 2008, of Agriculture Reorganization Act of Paperwork Reduction Act, 44 U.S.C. (FCEA). Additionally, this interim rule 1994, to establish OAO. In addition, the 2501 et seq., (PRA). The Department establishes substantive regulations for FCEA amended Section 2501(a) of the concludes that this interim rule does not the Outreach and Assistance for Socially FACT Act, to transfer the OASDFR impose any new information Disadvantaged Farmers and Ranchers Program to OAO and to authorize requirements. Program (OASDFR Program), mandatory funding for this program for Catalog of Federal Domestic Assistance established by the Food, Agriculture, Fiscal Year (FY) 2009 through FY 2012. This interim regulation applies to Conservation and Trade Act of 1990 The purpose of this rulemaking is to Federal assistance programs (FACT Act). It sets forth the criteria to establish general regulations governing administered by OAO, including 10.443, deliver outreach and technical awards management procedures for all Outreach and Assistance for Socially assistance in a linguistically appropriate OAO award programs. This rulemaking Disadvantaged Farmers and Ranchers manner to socially disadvantaged will also establish specific regulations and 10.465, Farmworker Training farmers, ranchers and forest landowners governing the OASDFR Program awards Grants. to acquire, own, operate, and retain management procedures. farms, ranches and non-industrial forest Unfunded Mandates Reform Act of 1995 II. Administration Requirements land. In addition, it assures farmers and and Executive Order 13132 ranchers who are members of socially Executive Orders 12866 & 13563 disadvantaged groups equitable The Department has reviewed this participation in the full range of This action has been determined not interim rule in accordance with the agriculture programs offered by the significant for the purposes of Executive requirements of Executive Order No. Department. Orders 12866 and 13563, and therefore, 13132 and the Unfunded Mandates has not been reviewed by the Office of Reform Act of 1995, 2 U.S.C. 1501 et DATES: This interim rule becomes Management and Budget. This interim seq., and has found no potential or effective on: October 26, 2011. OAO rule will not create a serious substantial direct effects on the States, requests to receive comments on or inconsistency or otherwise interfere on the relationship between the national before: December 27, 2011. with an action taken or planned by government and the States, or on the ADDRESSES: You may submit comments, another agency. It will not materially distribution of power and identified by RIN 0503–ZA01, by any of alter the budgetary impact of responsibilities among the various the following methods: entitlements, grants, user fees, or loan levels of government. As there is no

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Federal mandate contained herein that program-specific procedures for the Chapter XXV—Office of Advocacy and could result in increased expenditures OASDFR Program. Outreach by State, local, or tribal governments or Part 2500—OAO Federal Financial by the private sector, the Department PART 2500—OAO FEDERAL Assistance Programs—General Award has not prepared a budgetary impact FINANCIAL ASSISTANCE Administrative Procedures statement. PROGRAMS—GENERAL AWARD A. Subpart A—General Information ADMINISTRATIVE PROCEDURES Executive Order 13175: Consultation and Coordination With Indian Tribal The purpose of this subpart is to Subpart A—General Information Governments establish the definitions and statutes Sec. and regulations applicable to this part 2500.001 Applicability of regulations. The Department has reviewed this 2500.002 Definitions. interim rule in accordance with B. Subpart B—Pre-Award: Solicitation 2500.003 Other applicable statutes and Executive Order 13175 and has and Proposal regulations. determined that it does not have ‘‘tribal implications.’’ The interim rule does not The purpose of this subpart is to Subpart B—Pre-Award: Solicitation and Proposals ‘‘have substantial direct effects on one establish the solicitation criteria through or more Indian tribes, on the a Request for Proposals (RFP). This 2500.011 Competition. relationship between the Federal subpart also identifies the type of 2500.012 Requests for proposals. government and Indian tribes, or on the proposals to be submitted and OAO 2500.013 Types of proposals. distribution of power and responsibility eligibility requirements. 2500.014 Eligibility requirements. between the Federal government and 2500.015 Content of a proposal. C. Subpart C—Pre-Award: Proposal 2500.016 Submission of a proposal. Indian tribes.’’ Review and Evaluation 2500.017 Confidentiality of proposals and III. Statutory Authority awards. The purpose of this subpart is to 2500.018 Electronic submission. Section 14013 of the FCEA establishes establish the requirements for OAO. This section specifies the reviewing, evaluating and selecting Subpart C—Pre-Award: Proposal Review establishment and transfer of programs proposals. This subpart also establishes and Evaluation to OAO, including the Socially the OAO ‘‘Applicant Feedback’’ process. 2500.021 Guiding principles. 2500.022 Preliminary proposal review. Disadvantaged Farmers Group, the D. Subpart D—Award Small Farms and Beginning Farmers 2500.023 Selection of reviewers. and Ranchers Group, the Farmworker The purpose of this subpart is to 2500.024 Evaluation criteria. Coordinator, and other programs as identify the OAO administrative 2500.025 Procedures to minimize or eliminate duplication of effort. determined by the Secretary. In processes for spending program funds. 2500.026 Applicant feedback. addition, Section 14004 amended This subpart also establishes the OAO Section 2501(a) of the FACT Act to award agreement which defines the Subpart D—Award clarify the Secretary’s authority to terms and conditions of the award. 2500.031 Administration. engage in grants and other agreements to E. Subpart E—Post-Award and Closeout provide outreach and assistance for Subpart E—Post-Award and Closeout socially disadvantaged farmers and The purpose of this subpart is to 2500.041 Payment. ranchers. Previously, the OASDFR establish the OAO post-award and 2500.042 Cost sharing and matching. 2500.043 Program income. Program (also known as 2501 Program) closeout requirements. Subsequently, 2500.044 Indirect costs. was administered by the National this subpart also establishes the OAO Institute of Food and Agriculture 2500.045 Technical reporting. regulations in regard to cost-sharing and 2500.046 Financial reporting. (NIFA). Section 14013 of the FCEA matching, indirect cost, program 2500.047 Project meetings. added Section 226B to the Department income, and financial and technical 2500.048 Review of disallowed costs. of Agriculture Reorganization Act of reporting. 2500.049 Prior approvals. 1994 to transfer the OASDFR Program to F. Subpart F—Outreach and Assistance 2500.050 Suspension, termination, and OAO. The OASDFR Program provides withholding of support. for Socially Disadvantaged Farmers and outreach and technical assistance in a 2500.051 Debt collection. linguistically appropriate manner to Ranchers Program 2500.052 Award appeals procedures. encourage and assist current and The purpose of this subpart is to 2500.053 Expiring appropriations. prospective socially disadvantaged establish the program-specific grants 2500.054 Monitoring scope, purpose, and farmers, ranchers, and forest and cooperative agreements awardee responsibility. landowners in (1) owning and operating 2500.055 Audit. management procedures for the 2500.056 Civil rights. farms, ranches, and non-industrial forest OASDFR Program. lands; and (2) in participating equitably Subpart F—Outreach and Assistance for in the full range of agricultural programs List of Subjects in 7 CFR Part 2500 Socially Disadvantaged Farmers and offered by the Department. Ranchers Program Farmers, Federal aid programs, Grants IV. Section-by-Section Analysis administration, Grant programs— 2500.101 Applicability of regulations. agriculture, Ranchers, Socially 2500.102 Purpose. This interim rule will identify OAO disadvantaged groups. 2500.103 Definitions. awards management procedures for all 2500.104 Eligibility requirements. competitive and noncompetitive award For the reasons discussed in the 2500.105 Project types and priorities. programs administered within OAO. preamble, the Office of Advocacy and 2500.106 Funding restrictions. General OAO awards management Outreach, Departmental Management 2500.107 Matching. procedures are discussed in part 2500 adds chapter XXV, consisting of part 2500.108 Term of award. subparts A, B, C, D and E. Part 2500 2500, to Title 7 of the Code of Federal 2500.109 Program requirements. subpart F of this regulation provides Regulations to read as follows: Authority: 7 U.S.C. 6934, 7 U.S.C. 2279.

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Subpart A—General Information Community-based organization on the merit of proposals submitted to means a nongovernmental organization OAO. § 2500.001 Applicability of regulations. with a well-defined constituency that Secretary means the Secretary of The regulations in subparts A through includes all or part of a particular Agriculture and any other officer or E of this part apply to the programs community. employee of the Department of authorized under section 14013 of the Cooperative agreement means the Agriculture to whom authority may be FCEA to be administered within the award of funds to an eligible awardee to delegated. Office of Advocacy and Outreach assist in meeting the costs of conducting Terminate funding means the (OAO). The purpose of this part is to set a project which is intended and cancellation of Federal assistance, in forth regulations for competitive and designed to accomplish the purpose of whole or in part, at any time before the noncompetitive grants, cooperative the program as identified in the RFP, ending date. agreements, and other assistance and where substantial involvement is agreements awarded through OAO. expected between OAO and the awardee § 2500.003 Other applicable statutes and regulations. when carrying out the activities § 2500.002 Definitions. included in the agreement. This Several Federal statutes and Applicant means the entity that has agreement may also be referred to more regulations apply to proposals for submitted a proposal in response to an generally as an award. Federal assistance considered for review OAO Request For Proposal (RFP). Department means the U.S. and to grants and cooperative Authorized Departmental Officer Department of Agriculture. agreements awarded by OAO. These (ADO) means the Secretary or any Disallowed costs means the use of include, but are not limited to: employee of the Department with Federal financial assistance funds for (a) 7 CFR Part 1, Subpart A—USDA delegated authority to issue or modify unauthorized activities or items as implementation of the Freedom of award instruments on behalf of the stipulated in the applicable Federal cost Information Act; Secretary. principles (2 CFR part 220, 2 CFR part (b) 7 CFR Part 3—USDA Authorized Organizational 225, and 2 CFR part 230). implementation of OMB Circular No. Representative (AOR) means the Ending date means the date the award A–129, regarding debt management; President or Chief Executive Officer of agreement is scheduled to be completed. (c) Title VI of the Civil Rights Act of the applicant organization or the It is also the latest date award funds will 1964 (Pub. L. 88–352), as amended, official, designated by the President or be provided under the award agreement, which prohibits discrimination on the Chief Executive Officer of the applicant without an approved time extension. basis of race, color, or national origin, organization, who has the authority to Participant means an individual or and 7 CFR part 15, subpart A (USDA commit the resources of the entity that participates in awardee-led implementation); organization to the project. activities funded under the award (d) 7 CFR Part 3015—USDA Uniform Award means financial assistance that agreement. Furthermore, a participant is Federal Assistance Regulations, provides support to accomplish a public any individual or entity who has implementing OMB directives and purpose. Awards may be grants, applied for, otherwise participated in, or incorporating provisions of the Federal cooperative agreements, or other received a payment, or other benefit as Grant and Cooperative Agreement Act of assistance agreements. a result of participating in an activity 1977, Public Law 95–224, 31 U.S.C. Award agreement means the funded by an OAO award. § 6301–6308, as well as general policy agreement between OAO and the Partnering means a joint effort among requirements applicable to awardees of awardee which sets forth the terms and two or more eligible entities with the Departmental financial assistance. conditions under which the OAO funds capacity to conduct projects intended (e) 7 CFR Part 3016—USDA will be made available. Award and designed to accomplish the purpose implementation of Administrative agreement is used as a general term to of the program. Requirements for Grants and describe grant agreements, cooperative Program leader means the program Cooperative Agreements to State and agreements, and other assistance supervisor within OAO. Local Governments. agreements. Project means activities supported (f) 7 CFR Part 3017—USDA Award closeout means the process by under an OAO award. implementation of Governmentwide which the award operation is concluded Project Director (PD) means the Debarment and Suspension at the expiration of the award period or individual designated by the awardee in (Nonprocurement). following a decision to terminate the the proposal and award documentation, (g) 7 CFR Part 3018—USDA award. and approved by the ADO who is implementation of Restrictions on Award period means the timeframe of responsible for the direction and Lobbying. Imposes prohibitions and the award from the beginning date to the management of the award. requirements for disclosure and ending date as defined in the award Project Officer (PO) means an certification related to lobbying on agreement. individual within OAO who is awardees of Federal contracts, grants, Awardee means the entity designated responsible for the programmatic cooperative agreements, and loans. in the grant agreement, cooperative oversight of the award on behalf of the (h) 7 CFR Part 3019—USDA agreement, or other assistance Department. implementation of OMB Circular No. agreement as the legal entity to which Request for Proposals (RFP) means an A–110, Uniform Administrative the award is given. official USDA funding opportunity. At Requirements for Grants and Baseline monitoring is the minimum, OAO discretion, funding opportunities Agreements with Institutions of Higher basic monitoring that will take place on may be referred to as request for Education, Hospitals and Other Non- an ongoing basis throughout the lifetime proposals, request for applications, Profit Organizations (now relocated at of every award. notice of funding availability, or 2 CFR part 215). Beginning date means the date the funding opportunity. (i) 7 CFR Part 3021—USDA award agreement is executed by the Review panel means an evaluation implementation of Governmentwide awardee and OAO and from which costs process involving qualified individuals Requirements for Drug-Free Workplace can be incurred. within the relevant field to give advice (Financial Assistance).

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(j) 7 CFR Part 3052—USDA requirements of any other (17) Type of Federal assistance implementation of OMB Circular No. nondiscrimination statute(s) which may awards (i.e., grants or cooperative A–133, Audits of States, Local apply to the proposal. agreements). Governments, and Non-Profit (b) RFP variations. Where program- Organizations. Subpart B—Pre-Award: Solicitation specific requirements differ from the (k) 7 U.S.C. 3318—conferring upon and Proposals requirements established in this part, the Secretary general authority to enter § 2500.011 Competition. program solicitations will also address into contracts, grants, and cooperative any such variation(s). Variations may agreements to further the research, (a) Standards for competition. Except occur in the following: extension, or teaching programs in the as provided in paragraph (b) of this (1) Award management guidelines. food and agricultural sciences of the section, OAO will enter into (2) Restrictions on the delegation of Department of Agriculture. discretionary grants or cooperative fiscal responsibility. (l) 29 U.S.C. 794 (Section 504, agreement only after competition, (3) Required approval for changes to Rehabilitation Act of 1973) and 7 CFR unless restricted by statute. project plans. part 15b (USDA implementation of (b) Exception. The OAO ADO may (4) Expected program outputs and statute)—prohibiting discrimination make a determination in writing that reporting requirements, if applicable. based upon physical or mental handicap competition is not deemed appropriate (5) Applicable Federal statutes and in Federally assisted programs. for a particular transaction. Such regulations. (m) 35 U.S.C. 200 et seq.—Bayh-Dole determination shall be limited to (6) Confidential aspects of proposals Act, promoting the utilization of transactions where it can be adequately and awards, if applicable. inventions arising from federally justified that a noncompetitive award is (7) Regulatory information. supported research or development; in the best interest of the Federal (8) Definitions. encouraging maximum participation of Government and necessary to the goals (9) Minimum and maximum budget small business firms in federally of the program. Non-competitive requests and whether proposals outside supported research and development determinations will comply with of these limits will be returned without efforts; and promoting collaboration regulations established in 7 CFR further review. between commercial concerns and 3015.158(d). (c) Program announcements. nonprofit organizations, including § 2500.012 Requests for proposals. Occasionally, OAO will issue a program universities, while ensuring that the announcement (PA) to alert potential Government obtains sufficient rights in (a) General. For each competitive grant or cooperative agreement, OAO applicants and the public about new federally supported inventions to meet and ongoing funding opportunities. the needs of the Government and will prepare a program solicitation (also called a request for proposals (RFP)). These PAs may provide tentative due protect the public against nonuse or dates and are released without unreasonable use of inventions The RFP may include all or a portion of the following items: associated proposal packages. No (implementing regulations are contained proposals are solicited under a PA. PAs in 37 CFR part 401) (1) Contact information. (2) Catalog of Federal Domestic will be announced in the Federal (n) Title IX of the Education Register or on the OAO Web site. Amendment of 1972 (20 U.S.C. 1681– Assistance (CFDA) number. 1683 and 1685–1686), as amended, (3) Legislative authority and § 2500.013 Types of proposals. background information. which prohibits discrimination on the The type of proposal acceptable may (4) Purpose, priorities, and fund basis of sex; vary by funding opportunity. The RFP availability. (o) Age Discrimination Act of 1975 will stipulate what will be required for (5) Program-specific eligibility (42 U.S.C. 6101–6107), as amended, submission to OAO in response to the requirements. which prohibits discrimination on the funding opportunity. basis of age; (6) Program-specific restrictions on (p) Drug Abuse Office and Treatment the use of funds, if applicable. § 2500.014 Eligibility requirements. Act of 1972 (Pub. L. 92–255), as (7) Matching requirements, if Program-specific eligibility amended, relating to nondiscrimination applicable. requirements appear in the subpart on the basis of drug abuse; (8) Acceptable types of proposals. applicable to each program and in the (q) Comprehensive Alcohol Abuse (9) Types of projects to be given corresponding RFPs. and Alcoholism Prevention, Treatment priority consideration, including and Rehabilitation Act of 1970 (Pub. L. maximum anticipated awards and § 2500.015 Content of a proposal. 91–616), as amended, relating to maximum project lengths, if applicable. The RFP provides instructions on nondiscrimination on the basis of (10) Program areas, if applicable. how to access a funding opportunity. alcohol abuse or alcoholism; (11) Funding restrictions, if The funding opportunity contains the (r) Sections 523 and 527 of the Public applicable. proposal package, which includes the Health Service Act of 1912 (42 U.S.C. (12) Directions for obtaining forms necessary for completion of a 290dd–3 and 290ee–3), as amended, additional requests for proposals and proposal in response to the RFP. The relating to confidentiality of alcohol and proposal forms. RFP will be posted on http:// drug abuse patient records; (13) Information about how to obtain www.Grants.gov. OAO may also publish (s) Title VIII of the Civil Rights Act of proposal forms and the instructions for the RFP in the Federal Register. 1968 (42 U.S.C. 3601 et seq.), as completing such forms. amended, relating to nondiscrimination (14) Instructions and requirements for § 2500.016 Submission of a proposal. in the sale, rental or financing of submitting proposals, including The RFP will provide deadlines for housing; submission deadline(s). the submission of proposals. OAO may (t) Any other nondiscrimination (15) Explanation of the proposal issue separate RFPs and/or establish provisions in the specific statute(s) evaluation process. separate deadlines for different types of under which proposals for Federal (16) Specific evaluation criteria used proposals, different award instruments, assistance are made, and the in the review process. or different topics or phases of the

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assistance programs. If proposals are not unless it is necessary for the proper not be released to applicants. Names of received by applicable deadlines, they evaluation of the proposal. If proprietary applicants, as well as proposal content will not be considered for funding. information is to be included, it should and evaluation comments will be kept Exceptions will be considered only be limited, set apart from other text on confidential to the extent permitted by when extenuating circumstances exist, a separate page, and keyed to the text by law, except to those involved in the as determined by OAO, and justification numbers. It should be confined to a few review process. Reviewers will comply and supporting documentation are critical technical items that, if disclosed, with the above-mentioned provided by the applicant. Conformance could jeopardize the obtaining of foreign confidentiality guidelines. with preparation and submission or domestic patents. Trade secrets, (c) Conflicts of interest. During the instructions is required and will be salaries, or other information that could evaluation process, extreme care will be strictly enforced unless a deviation has jeopardize commercial competitiveness taken to prevent any actual or perceived been approved. OAO may establish should be similarly keyed and presented conflicts of interest that may impact additional requirements. OAO may on a separate page. Proposals or reports review or evaluation. Reviewers are that attempt to restrict dissemination of return without review proposals that are expected to be in compliance with the not consistent with the RFP large amounts of information may be Conflict-of-Interest process made a part instructions. found unacceptable by OAO and of the RFP. constitute grounds for return of the § 2500.017 Confidentiality of proposals proposal without further consideration. and awards. § 2500.024 Evaluation criteria. Without assuming any liability for (a) General. Names of entities inadvertent disclosure, OAO will limit (a) General. To ensure any project submitting proposals, as well as dissemination of such information to its receiving funds from OAO is consistent proposal contents and evaluations, employees and, where necessary for the with the broad goals of the funding except to those involved in the review evaluation of the proposal, to outside program, the content of each proposal process, will be kept confidential to the reviewers on a confidential basis. submitted to OAO will be evaluated extent permissible by law. based on a pre-determined set of review (b) Identifying confidential and § 2500.018 Electronic submission. criteria as indicated in the RFP. proprietary information in a proposal. If Applicants and awardees are (b) Guidance for reviewers. In order a proposal contains proprietary encouraged, but not required, to submit that all potential applicants for a information that constitutes a trade proposals and reports in electronic form program have similar opportunities to secret, proprietary commercial or as prescribed in the RFP issued by OAO compete for funds, all reviewers will financial information, confidential and in the applicable award agreement. receive an orientation from the Program personal information, or data affecting Leader of the review criteria. Reviewers the national security, it will be treated Subpart C—Pre-Award: Proposal Review and Evaluation are instructed to use those same in confidence to the extent permitted by evaluation criteria, and only those law, provided that the information is § 2500.021 Guiding principles. criteria, to judge the merit of the clearly marked by the applicant with the The guiding principle for Federal proposals they review. term ‘‘confidential and proprietary assistance proposal review and information.’’ In addition, the following § 2500.025 Procedures to minimize or evaluation is to ensure that each statement must be included at the eliminate duplication of effort. proposal is treated in a consistent and bottom of the project narrative or any fair manner. After the evaluation OAO may implement appropriate other attachment included in the process by the review panel, OAO will business processes to minimize or proposal that contains such information: provide an opportunity for applicant eliminate the awarding of Federal ‘‘The following pages (specify) contain feedback in as timely a manner as assistance to projects that unnecessarily proprietary information which (name of possible. duplicate activities already being proposing organization) requests not to sponsored under other awards, be released to persons outside the § 2500.022 Preliminary proposal review. including awards made by other Federal Government, except for purposes of Prior to technical examination, a agencies. evaluation.’’ preliminary review will be made of all (c) Disposition of proposals. By law, proposals for responsiveness to the § 2500.026 Applicant feedback. OAO is required to make the final administrative requirements set forth in Unsuccessful applicants may submit a decisions as to whether the information the RFP. Proposals that do not meet the is required to be kept in confidence. request for applicant feedback in writing administrative requirements may be to OAO within 10 days after receiving Information contained in unsuccessful eliminated from program competition. proposals will remain the property of written notice of not being selected for However, OAO retains the right to further processing. Applicant feedback the applicant. However, the Department conduct discussions with applicants to will retain for three years one file copy requests are to be mailed to the Program resolve technical and/or budget issues, Leader at the address below, unless of each proposal received; extra copies as deemed necessary by OAO. will be destroyed. Public release of otherwise stated in the ‘‘Notice of Non- information from any proposal § 2500.023 Selection of reviewers. Selection’’ or in the RFP. At OAO’s submitted will be subject to existing (a) Requirement. OAO is responsible discretion, either written or oral legal requirements. Any proposal that is for performing a review of proposals feedback will be provided to funded will be considered an integral submitted to OAO competitive award unsuccessful applicants. part of the award and normally will be programs. The RFP will identify the U.S. Department of Agriculture, made available to the public upon criteria that OAO will use for the Departmental Management, Office of request, except for information selection of the proposal review panel. Advocacy and Outreach, Attn: Program designated proprietary by OAO. (b) Confidentiality. The identities of Leader (Applicant Feedback), Whitten (d) Submission of proprietary reviewers will remain confidential to Building, Rm. 520–A, stop 9821, 1400 information. The inclusion of the maximum extent possible. Independence Avenue, SW., proprietary information is discouraged Therefore, the names of reviewers will Washington, DC 20250–9821.

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Subpart D—Award will be described in the terms and cost principles, unless superseded by conditions of the award agreement. another authority. § 2500.031 Administration. (b) Reimbursement method. OAO § 2500.045 Technical reporting. (a) General. Within the limit of funds shall use the reimbursement method if available for such purpose, the OAO it determines that advance payment is All projects supported with Federal ADO shall make Federal assistance not feasible or that the awardee does not funds under this part must be awards to those responsible, eligible maintain or demonstrate the willingness documented according to the terms and conditions of the OAO award applicants whose proposals are judged to maintain written procedures that agreement. most meritorious under the procedures minimize the elapse of time between the set forth in the RFP. The date specified transfer of funds and disbursement by § 2500.046 Financial reporting. by the OAO ADO as the effective date the awardee, and financial management (a) SF–425, Federal Financial Report. of the award shall be no later than systems that meet the standards for fund As stated in the award terms and September 30th of the Federal fiscal control and accountability. conditions of the OAO award year in which the project is approved agreement, a final SF–425, Federal for support and funds are appropriated § 2500.042 Cost sharing and matching. Financial Report, is due 90 days after for such purpose, unless otherwise (a) General. Awardees may be the expiration of the award and should permitted by law. It should be noted required to match the Federal funds be submitted to OAO electronically. The that the project need not be initiated on received under an OAO award. The awardee shall report program outlays the award effective date, but as soon required percentage of matching, type of and program income on the same thereafter as practical so that project matching (e.g., cash and/or in-kind accounting basis (i.e., cash or accrual) goals may be attained within the funded contributions), sources of match (e.g., that it uses in its normal accounting project period. All funds awarded by non-Federal), and whether OAO has any system. When submitting a final SF– OAO shall be expended solely for the authority to waive the match will be 425, Federal Financial Report, the total purpose for which the funds are specified in the subpart applicable to matching contribution, if required, awarded in accordance with the the specific Federal assistance program, should be shown in the report. The final approved statement of work and budget, as well as in the RFP. SF–425 must not show any unliquidated the regulations, the terms and (b) Indirect costs as in-kind matching obligations. If the awardee still has valid conditions of the OAO award contributions. Indirect costs may be obligations that remain unpaid when agreement, the applicable Federal cost claimed under the Federal portion of the the report is due, it shall request an principles, and the Department’s award budget. However, unless extension of time for submitting the assistance regulations (e.g., 7 CFR parts explicitly authorized in the RFP, report pursuant to paragraph (c) of this 3015, 3016, and 3019). indirect costs may not be claimed on section; submit a provisional report (b) Award agreement. The award both the Federal and nonfederal portion (showing the unliquidated obligations) agreement and accompanying terms and of the award budget. by the due date; and submit a final conditions will provide pertinent report when all obligations have been instructions and information including, § 2500.043 Program income. liquidated, but no later than the at a minimum, the following: (a) General. OAO shall apply the (1) Legal name and address of approved extension date. SF–425, standards set forth in this subpart in Federal Financial Reports, must be performing organization or institution to requiring awardee organizations to which OAO has awarded a grant or submitted by all awardees, including account for program income related to Federal agencies and national cooperative agreement. projects financed in whole or in part (2) Title of project. laboratories. with Federal funds. (b) Awards with required matching. (3) Name(s) of Project Director(s). (b) Addition method. Unless For awards requiring a matching (4) Identifying award number otherwise provided in the authorizing contribution, an annual SF–425, Federal assigned by OAO. statute, in accordance with the terms (5) Project period. Financial Report, is required and this and conditions of the award, program (6) Total amount of OAO financial requirement will be indicated in the income earned during the project period assistance approved. terms and conditions of the OAO award shall be retained by the awardee and (7) Legal authority under which the agreement, in which case it must be shall be added to funds committed to grant or cooperative agreement is submitted no later than 45 days the project by OAO and the awardee awarded. following the end of the budget or and used to further eligible project or (8) Appropriate CFDA number. reporting period. program objectives. Any specific (9) Approved budget plan (that may (c) After the due date. Requests are program deviations will be identified in be referenced). considered late when they are submitted (10) Terms and Conditions the individual subparts. after the 90-day period following the (c) Award terms and conditions. award expiration date. Requests to Subpart E—Post-Award and Closeout Unless the program regulations submit a late final SF–425, Federal identified in the individual subpart Financial Report, will only be § 2500.041 Payment. provide otherwise, awardees shall considered, up to 30 days after the due (a) General. All payments will be follow the terms and conditions of the date, in extenuating circumstances. This made in advance unless a deviation is OAO award. Such terms and conditions request should include a provisional accepted or as specified in paragraph (b) will be made a part of the OAO award report pursuant to paragraph (a) of this of this section. All payments to the agreement. section, as well as an anticipated awardee shall be made via the approved submission date, a justification for the electronic funds transfer (EFT) method. § 2500.044 Indirect costs. late submission, and a justification for Awardees are expected to request funds Indirect cost rates for grants and the extenuating circumstances. If an via the federally-approved electronic cooperative agreements shall be awardee needs to request additional payment system for reimbursement in a determined in accordance with the funds, procedures in paragraph (d) of timely manner. Exact payment method applicable assistance regulations and this section apply.

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(d) Overdue SF–425, Federal activities. Required attendance at these constitutes an administrative review for Financial Reports. Awardees with conference calls, conferences, debts under 7 CFR part 3, subpart F. overdue SF–425, Federal Financial workshops, meetings, and symposia will Reports, or other required financial be identified in the RFP or award § 2500.049 Prior approvals. reports (as identified in the award terms document. (a) Subcontracts. No more than 50 and conditions), will have their percent of the award may be applicable balances in the approved § 2500.048 Review of disallowed costs. subcontracted to other parties without federal electronic funds transfer system (a) Notice. If the OAO Project Officer prior written approval of the ADO. Any restricted or placed on ‘‘manual (PO) determines that there is a basis for subcontract awarded to a Federal agency review,’’ which restricts the awardee’s disallowing a cost, OAO shall provide under an award must have prior written ability to draw funds, thus requiring the awardee written notice of its intent approval of the ADO. To request prior approval from OAO. If any to disallow the cost. The written notice approval, a justification for the remaining available balances are needed shall state the amount of the cost and proposed subcontractual arrangements, by the awardee (beyond the 90-day the factual and legal basis for a performance statement, and a detailed period following the award expiration disallowing it. budget for the subcontract must be date) and the awardee has not requested (b) Awardee response. Within 60 days submitted to the ADO. of receiving written notice of the PO’s an extension to submit a final SF–425, (b) No-cost extensions of time—(1) intent to disallow the cost, the awardee Financial Status Report, the awardee General. Awardees may initiate a one- may respond with written evidence and will be required to contact OAO to time no-cost extension of the expiration arguments to show the cost is allowable, request permission to draw any date of the award of up to 12 months or that, for equitable, practical, or other additional funds and will be required to unless one or more of the following provide justification and documentation reasons, shall not recover all or part of the amount, or that the recovery should conditions apply: the terms and to support the draw. Awardees also will conditions of the award prohibit the need to comply with procedures in be made in installments. An extension of time will be granted only in extension; the extension requires paragraph (c) of this section. OAO will additional Federal funds; and the approve these draw requests only in extenuating circumstances. (c) Decision. Within 60 days of extension involves any change in the extenuating circumstances. approved objectives or scope of the (e) Additional reporting requirements. receiving the awardee’s written response to the notice of intent to project. For the first no-cost extension, OAO may require forecasts of Federal the awardee must notify OAO in writing cash requirements in the ‘‘Remarks’’ disallow the cost, the PO shall issue a management decision stating whether or with the supporting reasons and revised section of the report; and when practical expiration date at least 10 days before and deemed necessary, OAO may not the cost has been disallowed, the reasons for the decision, and the method the expiration date specified in the require awardees to report in the award. ‘‘Remarks’’ section the amount of cash of appeal that has been provided under (2) Additional requests for no-cost advances received in excess of three this section. If the awardee does not extensions of time before expiration days (i.e., short narrative with respond to the written notice under date. When more than one no-cost explanations of actions taken to reduce paragraph (a) of this section within the extension of time or an extension of the excess balances). When OAO needs time frame specified in paragraph (b) of more than 12 months is required, the additional information or more frequent this section, the PO shall issue a reports, a special provision will be management decision on the basis of the extension(s) must be approved in added to the award terms and information available to it. The writing by the PO. The awardee must conditions and identified in the OAO management decision shall constitute submit a written request, which must be award agreement. Should OAO the final action with respect to whether received no later than 10 days prior to determine that an awardee’s accounting the cost is allowed or disallowed. In the the expiration date of the award, to the system is inadequate, additional case of a questioned cost identified in PO. The request must contain, at a pertinent information to further monitor the context of an audit subject to 7 CFR minimum, the following information: awards may be requested from the part 3052, the management decision The length of the additional time awardee until such time as the system will constitute the management decision required to complete the project is brought up to standard, as determined under 7 CFR 3052.405(a). objectives and a justification for the by OAO. This additional reporting (d) Demand for payment. If the extension; a summary of the progress to requirement will be required via a management decision under paragraph date; an estimate of the funds expected special provision to the award terms (c) of this section constitutes a finding to remain unobligated on the scheduled and conditions of the OAO award that the cost is disallowed and, expiration date; a projected timetable to agreement. therefore, that a debt is owed to the complete the portion(s) of the project for Government, the PO shall provide the which the extension is being requested; § 2500.047 Project meetings. required demand and notice pursuant to and signature of the AOR and the PD. In addition to reviewing and 7 CFR 3.11. (3) Requests for no-cost extensions of monitoring the status of progress and (e) Review process. Within 60 days of time after expiration date. OAO may final technical reports and financial receiving the demand and notice consider and approve requests for no- reports, OAO Project Officers may use referred to in paragraph (d) of this cost extensions of time up to 120 days regular and periodic conference calls to section, the awardee may submit a following the expiration of the award. monitor the awardee’s performance as written request to the OAO Director for These will be approved only for well as conferences, workshops, a review of the final management extenuating circumstances, as meetings, and symposia to not only decision that the debt exists and the determined by OAO. The awardee’s monitor the awards, but to facilitate amount of the debt. Within 60 days of AOR must submit the requirements communication and the sharing of receiving the written request for a identified under paragraph (b)(2) of this project results. These opportunities also review, the OAO Director will issue a section as well as an ‘‘extenuating serve to eliminate or minimize OAO final decision regarding the debt. A circumstance’’ justification and a funding of unneeded duplicative project review by the OAO Director or designee description of the actions taken by the

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awardee to minimize these requests in the awardee to carry out its approved (b) OAO awards supported with funds the future. project in accordance with the from other Federal agencies (4) Other requirements. No-cost applicable law and the terms and (reimbursable funds). OAO may require extensions of time may not be exercised conditions of award; or for failure of the that all draws and reimbursements for merely for the purpose of using awardee otherwise to comply with any awards supported with reimbursable unobligated balances. law, regulation, assurance, term, or funds (from other Federal agencies) be condition applicable to the award. completed prior to June 30th of the 5th § 2500.050 Suspension, termination, and Additionally, an award may be fiscal year after the period of availability withholding of support. determined to be void if, for example, it for obligation ends to allow for the (a) General. If an awardee has failed was not authorized by statute or proper billing, collection, and close-out to materially comply with the terms and regulation or because it was of the associated interagency agreement conditions of the award, OAO may take fraudulently obtained. Appeals of before the appropriations expire. The certain enforcement actions, including, determinations regarding the June 30th requirement also applies to but not limited to, suspending the allowability of costs are subject to the awards with a 90-day period concluding award pending corrective action and procedures in § 2500.048. on a date after June 30th of that fifth terminating the award for cause. (b) Appeal Procedures. The formal year. Appropriations cannot be restored (b) Suspension. OAO generally will notification of an adverse determination after expiration of the accounts. More suspend (rather than immediately will contain a statement of the specific instructions are provided in the terminate) an award to allow the awardee’s appeal rights. To appeal an terms and conditions of the OAO award awardee an opportunity to take adverse determination, the awardee agreement. appropriate corrective action before must submit a request for review to the OAO makes a termination decision. OAO official specified in the § 2500.055 Audit. OAO may decide to terminate the award notification, detailing the nature of the Awardees must comply with the audit if the awardee does not take appropriate disagreement with the adverse requirements of 7 CFR part 3052. The corrective action during the period of determination and providing supporting audit requirements apply to the years in suspension. OAO may terminate, documents in accordance with the which Federal financial assistance without first suspending, the award if procedures contained in the funds are received and years in which the deficiency is so serious as to warrant notification. The awardee’s request to work is accomplished using these funds. immediate termination. Termination for OAO for review must be received within cause may be appealed under the terms 60 days after receipt of the written § 2500.056 Civil rights. and conditions identified in the OAO notification of the adverse Awardees must comply with the civil award agreement. determination; however, an extension rights requirements of 7 CFR part 15, (c) Termination. An award also may may be granted if the awardee can show subpart A—USDA implementation of be terminated, partially or wholly, by good cause why an extension is Title VI of the Civil Rights Act of 1964, the awardee or by OAO with the warranted. OAO will carefully consider as amended. In accordance, no person consent of the awardee. If the awardee the merits of all requests for appeals and in the United States shall, on the ground decides to terminate a portion of the further reviews. However, at the of race, color, or national origin, be award, OAO may determine that the conclusion of the OAO appeal review excluded from participation in, be remaining portion of the award will not process, the OAO decision rendered on denied the benefits of, or be otherwise accomplish the purposes for which the the appeal is considered final. The subjected to discrimination under any award was originally made. In any such awardee will be notified in writing by program or activity for which the case, OAO will advise the awardee of OAO of final appeal review recipient receives Federal financial the possibility of termination of the determinations. assistance and will immediately take entire award and allow the awardee to § 2500.053 Expiring appropriations. any measures necessary to effectuate withdraw its termination request. If the this agreement. awardee does not withdraw its request (a) OAO awards supported with office for partial termination, OAO may appropriations. Most OAO awards are Subpart F—Outreach and Assistance initiate procedures to terminate the supported with annual appropriations. For Socially Disadvantaged Farmers entire award for cause. On September 30th of the 5th fiscal year and Ranchers Program after the period of availability for § 2500.051 Debt collection. obligation ends, the funds for these § 2500.101 Applicability of regulations. The collection of debts owed to OAO appropriations accounts expire per 31 The regulations in this subpart apply by awardees, including those resulting U.S.C. 1552 and the account is closed, to the Outreach and Assistance for from cost disallowances, recovery of unless otherwise specified by law. Socially Disadvantaged Farmers and funds, unobligated balances, or other Funds that have not been drawn Ranchers (OASDFR) Program authorized circumstances, are subject to the through the approved electronic funds under section 2501 of the Food, Department’s debt collection procedures transfer system, by the awardee or Agriculture, Conservation and Trade as set forth in 7 CFR part 3, and, with disbursed through any other system or Act of 1990 (7 U.S.C. 2279), as respect to cost disallowances, method by August 31st of that fiscal amended. Unless otherwise specified in § 2500.048. year are subject to be returned to the this subpart, the requirements of 7 CFR U.S. Department of the Treasury after part 2500 subparts A through E will § 2500.052 Award appeals procedures. that date. The August 31st requirement apply in addition to the requirements (a) General. OAO permits awardees to also applies to awards with a 90-day discussed in this subpart. appeal certain adverse post-award period concluding on a date after administrative decisions made by OAO. August 31st of that fifth year. § 2500.102 Purpose. Such adverse decisions include: Appropriations cannot be restored after (a) The purpose of the OASDFR Termination, in whole or in part, and expiration of the accounts. More Program is to make competitive awards determination that an award is void. An specific instructions are provided in the to provide outreach and technical award may be terminated for failure of OAO award terms and conditions. assistance to encourage and assist

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socially disadvantaged farmers and (2) in participating equitably in the full Socially disadvantaged group means a ranchers in: range of agricultural programs offered group whose members have been (1) Owning and operating farms, by the Department through workshops, subjected to racial or ethnic prejudice ranches and non-industrial forest lands; site visits and other means of contact in because of their identity as members of and a linguistically appropriate manner. a group without regard to their (2) In participating equitably in the Farmer, rancher, or forest landowner individual qualities. (See 7 U.S.C. full range of agricultural programs means the person who primarily 2279(e)(1)). offered by the Department. cultivates, operates, or manages a farm, State means any of the 50 States of the (b) The OASDFR Program awards ranch, or forest for profit, either as United States, the District of Columbia, shall be used exclusively to: owner or tenant. A farm includes the Commonwealth of Puerto Rico, (1) Enhance coordination of the livestock, dairy, poultry, fish, fruit, and Guam, the Virgin Islands of the United outreach, technical assistance, and truck farms. It also includes plantations, States, American Samoa, the education efforts authorized under ranches, ranges, and orchards. Commonwealth of the Northern Mariana agriculture programs; Hispanic-serving institution means an Islands, and federally recognized Indian (2) Assist in reaching current and eligible institution of higher education tribes. prospective socially disadvantaged that has an enrollment of undergraduate Supplemental funding means funding farmers, ranchers or forest landowners full-time equivalent students that is at to an existing awardee in addition to the in a linguistically appropriate manner; least 25 percent Hispanic students at the amount of the original award contained and end of the award year immediately in the grant or cooperative agreement. (3) Improve the participation of those preceding the date of submission of a Such additional funding is intended to farmers and ranchers in agricultural proposal (see 20 U.S.C. 1101a(5)). continue or expand work that is within programs. Indian tribe means any Indian tribe, the scope of the original agreement and band, nation, or other organized group § 2500.103 Definitions. statement of work. or community, including any Alaska Tribal organization means the The definitions provided in subpart A Native village or regional or village recognized governing body of any apply to this subpart. In addition, the corporation as defined in or established Indian tribe. A tribal organization is any definitions that apply specifically to the pursuant to the Alaska Native Claims legally established organization of OASDFR Program under this subpart Settlement Act (85 Stat. 688) (43 U.S.C. Indians which is controlled, sanctioned, include: 1601 et seq.), which is recognized as or chartered by such governing body or Agriculture programs means those eligible for the special programs and which is democratically elected by the programs administered within the services provided by the United States adult members of the Indian Department, by agencies including but to Indians because of their status as community. In any case where an award not limited to: Forest Service (FS), Indians. (For further specification, see is made to an organization to perform Natural Resources Conservation Service 25 U.S.C. 450b). services benefiting more than one (NRCS), Farm Service Agency (FSA), Indian tribal community college Indian tribe, the approval of each Risk Management Agency (RMA), Rural means a post-secondary education participating Indian tribe shall be a Development (RD), Rural Business institution which is formally controlled, prerequisite to the making of such an Cooperative Service (RBCS), National or has been officially sanctioned, or award. (See 25 U.S.C. 1603(25). Institute of Food and Agriculture chartered, by the governing body of an (NIFA), and Agricultural Marketing Indian tribe or tribes. (See 25 U.S.C. § 2500.104 Eligibility requirements. Service (AMS), and other such programs 1801(a)(4)). Proposals may be submitted by any of as determined by the Department on a Institution of higher education means the following: case-by-case basis either at the OAO an educational institution in any State (a) Any community-based Director’s initiative or in response to a that is a public or other nonprofit organization, network, or coalition of written request with supporting institution that is legally authorized and community-based organizations that: explanation for inclusion of a program. accredited by a nationally recognized (1) Has demonstrated experience in (For further details on specific programs accrediting agency or association to providing agricultural education or included under this subpart see 7 U.S.C. provide a program of education beyond other agriculturally related services to 2279(e)(3) or the RFP). secondary education for which the socially disadvantaged farmers, Alaska Native means a citizen of the institution awards a bachelor’s degree. ranchers, and forest landowners; United States who is a person of one- (For further specification, see 20 U.S.C. (2) Has provided to the Secretary fourth or more Alaska Indian, Eskimo, 1001(a)). documentary evidence of work with, or Aleut blood, or combination thereof. Outreach means the use of formal and and on behalf of socially disadvantaged (For further specification, see 43 U.S.C informal educational materials and farmers, ranchers, or forest landowners 1602(b) or the RFP). activities in a linguistically appropriate during the three-year period preceding Alaska Native cooperative colleges manner that serve to encourage and the submission of a proposal for means an eligible post-secondary assist socially disadvantaged farmers assistance under this program; and educational institution that has an and ranchers in: (3) Does not engage in activities enrollment of undergraduate full-time (1) Owning and operating farms and prohibited under Section 501(c)(3) of equivalent students that is at least 20 ranches; and in the Internal Revenue Code of 1986. percent Alaska Native students at the (2) Participating equitably in the full (b) An 1890 institution or 1994 time of submission of a proposal. range of agricultural programs offered institution (as defined in 7 U.S.C. 7601), Assistance means providing by the Department. including West Virginia State educational and technical assistance to Socially disadvantaged farmer, University. socially disadvantaged farmers, rancher or forest landowner means a (c) An Indian tribal community ranchers, and forest landowners in farmer, rancher, or forest landowner college or an Alaska Native cooperative (1) owning and operating farms, who is a member of a socially college. ranches, and non-industrial forest lands; disadvantaged group. (See 7 U.S.C. (d) A Hispanic-serving institution (as and 2279(e)(2)). defined in 7 U.S.C. 3103).

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(e) Any other institution of higher landowners to own and operate farms comments on the proposal to the FAA. education (as defined in 20 U.S.C. 1001) and participate equitably in agricultural One comment was made regarding a that has demonstrated experience in programs; and other priorities as typing error within the final rule. This providing agriculture education or other determined by the Secretary. error has been corrected. agriculturally related services to socially Signed in Washington, DC, on October 14, The Class E airspace areas are disadvantaged farmers, ranchers, and 2011. published in paragraphs 6002 and 6005, respectively, of FAA Order 7400.9V, forest landowners in a region. Pearlie S. Reed, (f) An Indian tribe (as defined in 25 Airspace Designations and Reporting Assistant Secretary for Administration for the Points, signed September 9, 2011, and U.S.C. 450b) or a national tribal Office of the Secretary. organization that has demonstrated effective September 15, 2011, which is [FR Doc. 2011–27108 Filed 10–25–11; 8:45 am] experience in providing agriculture incorporated by reference in 14 CFR education or other agriculturally-related BILLING CODE 3412–89–P 71.1. The Class E airspace designations services to socially disadvantaged listed in this document will be farmers, ranchers, and forest published subsequently in the Order. landowners in a region. DEPARTMENT OF TRANSPORTATION With the exception of editorial changes, (g) Other organizations or institutions and the changes described above, this Federal Aviation Administration that received funding under this rule is the same as that proposed in the program before January 1, 1996, but NPRM. 14 CFR Part 71 only with respect to projects that the The Rule Secretary considers are similar to [Docket No. FAA–2011–0750; Airspace projects previously carried out by the Docket No. 11–AAL–08] This action amends Title 14 Code of entity under this program. Federal Regulations (14 CFR) part 71 by Revision of Class E Airspace; Umiat, revising Class E airspace at the Umiat § 2500.105 Project types and priorities. AK Airport, Umiat, AK, due to the For each RFP, OAO may develop and cancellation of two special instrument AGENCY: Federal Aviation include the appropriate project types approach procedures. The Class E Administration (FAA), DOT. and focus areas based on the critical airspace extending upward from 700 needs of the socially disadvantaged ACTION: Final rule. above the surface is no longer necessary farmer and rancher community. For SUMMARY: This action revises Class E for the safety and management of IFR standard OASDFR projects, competitive airspace at Umiat, AK, due to the operations at the airport. The FAA has determined that this grants or cooperative agreements will be cancellation of two special instrument regulation only involves an established awarded to support programs and approach procedures at the Umiat body of technical regulations for which services, as appropriate, to encourage Airport. The cancellation of these two frequent and routine amendments are and assist socially disadvantaged special instrument approach procedures necessary to keep them operationally farmers and ranchers in the following has made the transition airspace from current. It, therefore—(1) Is not a focus areas: 700 feet above the surface no longer ‘‘significant regulatory action’’ under (a) Owning and operating farms and necessary for the safety of Instrument Executive Order 12866; (2) is not a ranches; Flight Rules (IFR) operations. (b) Participating equitably in the full ‘‘significant rule’’ under DOT DATES: range of agricultural programs offered Effective 0901 UTC, December Regulatory Policies and Procedures (44 by the Department; and 15, 2011. The Director of the Federal FR 11034; February 26, 1979); and (3) (c) Other areas as specified by the Register approves this incorporation by does not warrant preparation of a Secretary in the RFP. reference action under title 1, Code of regulatory evaluation as the anticipated Federal Regulations, part 51, subject to impact is so minimal. Because this is a § 2500.106 Funding restrictions. the annual revision of FAA Order routine matter that will only affect air Funds made available under this 7400.9 and publication of conforming traffic procedures and air navigation, it subpart shall not be used for the amendments. is certified that this rule will not have construction of a new building or FOR FURTHER INFORMATION CONTACT: a significant economic impact on a facility or the acquisition, expansion, Martha Dunn, AAL–538G, Federal substantial number of small entities remodeling, or alteration of an existing Aviation Administration, 222 West 7th under the criteria of the Regulatory facility (including site grading and Avenue, Box 14, Anchorage, AK 99513– Flexibility Act. improvement, and architect fees). 7587; telephone number (907) 271– The FAA’s authority to issue rules § 2500.107 Matching. 5898; fax: (907) 271–2850; e-mail: regarding aviation safety is found in [email protected]. Internet Title 49 of the United States Code. Matching funds are not required as a address: http://www.faa.gov/about/ Subtitle 1, Section 106 describes the condition of receiving awards under this office_org/headquarters_offices/ato/ authority of the FAA Administrator. subpart. service_units/systemops/fs/alaskan/ Subtitle VII, Aviation Programs, § 2500.108 Term of award. rulemaking/. describes in more detail the scope of the The award term will be defined in the SUPPLEMENTARY INFORMATION: agency’s authority. OAO award agreement, and can be later This rulemaking is promulgated History amended upon approval of OAO. under the authority described in On Wednesday, August 10, 2011, the Subtitle VII, Part A, Subpart 1, Section § 2500.109 Program requirements. FAA published a notice of proposed 40103, Sovereignty and use of airspace. Grants and cooperative agreements rulemaking (NPRM) in the Federal Under that section, the FAA is charged under this subpart shall address the Register to revise Class E airspace at with prescribing regulations to ensure priorities in the Department that involve Umiat, AK (76 FR 49387). the safe and efficient use of the providing outreach and technical Interested parties were invited to navigable airspace. This regulation is assistance to socially disadvantaged participate in this rulemaking within the scope of that authority farmers, ranchers, and forest proceeding by submitting written because it reflects the changes in use of

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the Umiat Airport and is consistent with SUMMARY: This rule establishes, amends, Aviation Administration, Mike the FAA’s continuing effort to safely suspends, or revokes Standard Monroney Aeronautical Center, 6500 and efficiently use the navigable Instrument Approach Procedures South MacArthur Blvd., Oklahoma City, airspace. (SIAPs) and associated Takeoff OK 73169 (Mail Address: P.O. Box Minimums and Obstacle Departure 25082, Oklahoma City, OK 73125) List of Subjects in 14 CFR Part 71 Procedures for operations at certain Telephone: (405) 954–4164. Airspace, Incorporation by reference, airports. These regulatory actions are SUPPLEMENTARY INFORMATION: This rule Navigation (air). needed because of the adoption of new amends title 14 of the Code of Federal Adoption of the Amendment or revised criteria, or because of changes Regulations, part 97 (14 CFR part 97), by occurring in the National Airspace establishing, amending, suspending, or In consideration of the foregoing, the System, such as the commissioning of revoking SIAPS, Takeoff Minimums Federal Aviation Administration new navigational facilities, adding new and/or ODPS. The complete regulators amends 14 CFR part 71 as follows: obstacles, or changing air traffic description of each SIAP and its requirements. These changes are associated Takeoff Minimums or ODP PART 71—DESIGNATION OF CLASS A, designed to provide safe and efficient for an identified airport is listed on FAA B, C, D, AND E AIRSPACE AREAS; AIR use of the navigable airspace and to form documents which are incorporated TRAFFIC SERVICE ROUTES; AND promote safe flight operations under by reference in this amendment under REPORTING POINTS instrument flight rules at the affected 5 U.S.C. 552(a), 1 CFR part 51, and 14 ■ 1. The authority citation for 14 CFR airports. CFR part 97.20. The applicable FAA Forms are FAA Forms 8260–3, 8260–4, part 71 continues to read as follows: DATES: This rule is effective October 26, 8260–5, 8260–15A, and 8260–15B when Authority: 49 U.S.C. 106(g), 40103, 40113, 2011. The compliance date for each SIAP, associated Takeoff Minimums, required by an entry on 8260–15A. 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– The large number of SIAPs, Takeoff and ODP is specified in the amendatory 1963 Comp., p. 389. Minimums and ODPs, in addition to provisions. § 71.1 [Amended] The incorporation by reference of their complex nature and the need for certain publications listed in the a special format make publication in the ■ 2. The incorporation by reference in Federal Register expensive and regulations is approved by the Director 14 CFR 71.1 of Federal Aviation impractical. Furthermore, airmen do not of the Federal Register as of October 26, Administration Order 7400.9V, use the regulatory text of the SIAPs, 2011. Airspace Designations and Reporting Takeoff Minimums or ODPs, but instead Points, signed September 9, 2011, and ADDRESSES: Availability of matters refer to their depiction on charts printed effective September 15, 2011, is incorporated by reference in the by publishers of aeronautical materials. amended as follows: amendment is as follows: The advantages of incorporation by For examination— reference are realized and publication of 1. FAA Rules Docket, FAA Paragraph 6005 Class E arspace extending the complete description of each SIAP, upward from 700 feet or more above the Headquarters Building, 800 Takeoff Minimums and ODP listed on surface of the earth. Independence Avenue, SW., FAA forms is unnecessary. This * * * * * Washington, DC 20591; amendment provides the affected CFR 2. The FAA Regional Office of the AAL AK E5 Umiat, AK [Revised] sections and specifies the types of SIAPs region in which the affected airport is Umiat Airport, AK and the effective dates of the, associated ° ′ ″ ° ′ ″ located; (Lat. 69 22 16 N., long. 152 08 06 W.) 3. The National Flight Procedures Takeoff Minimums and ODPs. This amendment also identifies the airport That airspace extending upward from Office, 6500 South MacArthur Blvd., and its location, the procedure, and the 1,200 feet above the surface within a 73-mile Oklahoma City, OK 73169 or, radius of the Umiat Airport, Alaska. 4. The National Archives and Records amendment number. Issued in Anchorage, AK, on October 14, Administration (NARA). For The Rule 2011. information on the availability of this This amendment to 14 CFR part 97 is Marshall G. Severson, material at NARA, call 202–741–6030, effective upon publication of each Acting Manager, Alaska Flight Services. or go to: http://www.archives.gov/ separate SIAP, Takeoff Minimums and [FR Doc. 2011–27366 Filed 10–25–11; 8:45 am] federal_register/code_of_federal_ _ ODP as contained in the transmittal. BILLING CODE 4910–13–P regulations/ibr locations.html. Some SIAP and Takeoff Minimums and Availability—All SIAPs and Takeoff textual ODP amendments may have Minimums and ODPs are available been issued previously by the FAA in a DEPARTMENT OF TRANSPORTATION online free of charge. Visit http://www. Flight Data Center (FDC) Notice to nfdc.faa.gov to register. Additionally, Airmen (NOTAM) as an emergency Federal Aviation Administration individual SIAP and Takeoff Minimums action of immediate flight safety relating and ODP copies may be obtained from: directly to published aeronautical 14 CFR Part 97 1. FAA Public Inquiry Center (APA– charts. The circumstances which 200), FAA Headquarters Building, 800 created the need for some SIAP and [Docket No. 30808; Amdt. No. 3448] Independence Avenue, SW., Takeoff Minimums and ODP Washington, DC 20591; or amendments may require making them Standard Instrument Approach 2. The FAA Regional Office of the effective in less than 30 days. For the Procedures, and Takeoff Minimums region in which the affected airport is remaining SIAPS and Takeoff and Obstacle Departure Procedures; located. Minimums and ODPS, an effective date Miscellaneous Amendments FOR FURTHER INFORMATION CONTACT: at least 30 days after publication is AGENCY: Federal Aviation Richard A. Dunham III, Flight Procedure provided. Administration (FAA), DOT. Standards Branch (AFS–420), Flight Further, the SIAPs and Takeoff Technologies and Programs Divisions, Minimums and ODPS contained in this ACTION: Final rule. Flight Standards Service, Federal amendment are based on the criteria

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contained in the U.S. Standard for ■ 2. Part 97 is amended to read as McGehee, AR, McGehee Muni, Takeoff Terminal Instrument Procedures follows: Minimums and Obstacle DP, Orig (TERPS). In developing these SIAPS and Mesa, AZ, Falcon Fld, RNAV (GPS) RWY 4L, Effective 17 NOV 2011 Amdt 1 Takeoff Minimums and ODPs, the Mesa, AZ, Falcon Fld, RNAV (GPS) RWY 4R, TERPS criteria were applied to the Troy, AL, Troy Muni, RADAR–1, Amdt 9 Show Low, AZ, Show Low Rgnl, RNAV Amdt 1 conditions existing or anticipated at the (GPS) RWY 24, Amdt 2A Atwater, CA, Castle, ILS OR LOC/DME RWY affected airports. Because of the close Salinas, CA, Salinas Muni, Takeoff 31, Amdt 2C and immediate relationship between Minimums and Obstacle DP, Amdt 4 Atwater, CA, Castle, RNAV (GPS) RWY 13, these SIAPs, Takeoff Minimums and Atlanta, GA, Hartsfield-Jackson Atlanta Intl, Orig-B ODPs, and safety in air commerce, I find Takeoff Minimums and Obstacle DP, Amdt Atwater, CA, Castle, RNAV (GPS) RWY 31, that notice and public procedures before 4A Orig-B Atwater, CA, Castle, Takeoff Minimums and adopting these SIAPS, Takeoff Newton, KS, Newton-City-County, Takeoff Minimums and Obstacle DP, Orig Obstacle DP, Amdt 1A Minimums and ODPs are impracticable Fayetteville, NC, Fayetteville Rgnl/Grannis Atwater, CA, Castle, VOR/DME RWY 31, and contrary to the public interest and, Field, ILS OR LOC/DME RWY 4, Amdt 16 Amdt 1B where applicable, that good cause exists Teterboro, NJ, Teterboro, RNAV (GPS)–C, Davis/Woodland/Winters, CA, Yolo County, for making some SIAPs effective in less Orig, CANCELLED RNAV (GPS) RWY 34, Amdt 2 than 30 days. Teterboro, NJ, Teterboro, RNAV (GPS) X Denver, CO, Rocky Mountain Metropolitan, RWY 6,Orig ILS OR LOC Y RWY 29R, Amdt 14 Conclusion Watertown, NY, Watertown Intl, Takeoff Denver, CO, Rocky Mountain Metropolitan, Minimums and Obstacle DP, Amdt 1 ILS OR LOC Z RWY 29R, Orig The FAA has determined that this Fairview, OK, Fairview Muni, Takeoff Denver, CO, Rocky Mountain Metropolitan, regulation only involves an established Minimums and Obstacle DP, Amdt 3 RNAV (GPS) RWY 29L, Amdt 1 body of technical regulations for which Guymon, OK, Guymon Muni, GPS RWY 36, Denver, CO, Rocky Mountain Metropolitan, frequent and routine amendments are Orig-A, CANCELLED RNAV (GPS) RWY 29R, Amdt 1 necessary to keep them operationally Guymon, OK, Guymon Muni, RNAV (GPS) Miami, FL, Opa-Locka Executive, GPS RWY current. It, therefore—(1) Is not a RWY 18, Amdt 1 9L, Orig B, CANCELLED Guymon, OK, Guymon Muni, RNAV (GPS) Miami, FL, Opa-Locka Executive, GPS RWY ‘‘significant regulatory action’’ under 27R, Orig B, CANCELLED Executive Order 12866; (2) is not a RWY 36, Orig Guymon, OK, Guymon Muni, Takeoff Miami, FL, Opa-Locka Executive, ILS OR ‘‘significant rule ’’ under DOT Minimums and Obstacle DP, Amdt 1 LOC RWY 9L, Amdt 5 Regulatory Policies and Procedures (44 Norman, OK, University of Oklahoma Miami, FL, Opa-Locka Executive, ILS OR FR 11034; February 26, 1979); and (3) Westheimer, ILS OR LOC RWY 17, Amdt LOC RWY 12, Amdt 2 does not warrant preparation of a 1A Miami, FL, Opa-Locka Executive, ILS OR regulatory evaluation as the anticipated Jasper, TN, Marion County-Brown Field, LOC RWY 27R, Amdt 1 impact is so minimal. For the same Takeoff Minimums and Obstacle DP, Amdt Miami, FL, Opa-Locka Executive, RNAV (GPS) RWY 9L, Orig reason, the FAA certifies that this 2 Portland, TN, Portland Muni, GPS RWY 19, Miami, FL, Opa-Locka Executive, RNAV amendment will not have a significant Orig, CANCELLED (GPS) RWY 12, Orig economic impact on a substantial Portland, TN, Portland Muni, RNAV (GPS) Miami, FL, Opa-Locka Executive, RNAV number of small entities under the RWY 1, Orig (GPS) RWY 27R, Orig criteria of the Regulatory Flexibility Act. Portland, TN, Portland Muni, RNAV (GPS) Miami, FL, Opa-Locka Executive, Takeoff RWY 19, Orig Minimums and Obstacle DP, Amdt 9 List of Subjects in 14 CFR Part 97 Pulaski, TN, Abernathy Field, RNAV (GPS) Sebring, FL, Sebring Rgnl, RNAV (GPS) RWY Air traffic control, Airports, RWY 16, Amdt 2 14, Orig Sebring, FL, Sebring Rgnl, RNAV (GPS) RWY Incorporation by reference, and Pulaski, TN, Abernathy Field, RNAV (GPS) RWY 34, Amdt 2 32, Orig Navigation (air). Pulaski, TN, Abernathy Field, Takeoff Waynesboro, GA, Burke County, NDB RWY Issued in Washington, DC, on October 14, Minimums and Obstacle DP, Amdt 4 8, Amdt 2B, CANCELLED 2011. Rogersville, TN, Hawkins County, Takeoff Cedar Rapids, IA, The Eastern Iowa, ILS OR Ray Towles, Minimums and Obstacle DP, Amdt 2 LOC RWY 27. Amdt 6B Amarillo, TX, Tradewind, Takeoff Minimums Boise, ID, Boise Air Terminal/Gowen Fld, Deputy Director, Flight Standards Service. and Obstacle DP, Amdt 3 VOR/DME OR TACAN RWY 10L, Amdt 2 Adoption of the Amendment Lancaster, TX, Lancaster Rgnl, NDB RWY 31, Boise, ID, Boise Air Terminal/Gowen Fld, Amdt 3, CANCELLED VOR/DME RWY 10R, Amdt 1 Accordingly, pursuant to the Yakima, WA, Yakima Air Terminal/ Abilene, KS, Abilene Muni, Takeoff authority delegated to me, Title 14, Mcallister Field, RNAV (RNP) Y RWY 27, Minimums and Obstacle DP, Orig Code of Federal Regulations, part 97 (14 Orig-A Marysville, KS, Marysville, NDB RWY 34, Amdt 5, CANCELLED CFR part 97) is amended by Effective 15 DEC 2011 establishing, amending, suspending, or Moundridge, KS, Moundridge Muni, Takeoff Savoonga, AK, Savoonga, RNAV (GPS) RWY Minimums and Obstacle DP, Orig revoking Standard Instrument Approach 5, Amdt 1 Paola, KS, Miami County, Takeoff Minimums Procedures and/or Takeoff Minimums Savoonga, AK, Savoonga, RNAV (GPS) RWY and Obstacle DP, Orig and/or Obstacle Departure Procedures 23, Amdt 1 Indianola, MS, Indianola Muni, NDB RWY effective at 0902 UTC on the dates Shungnak, AK, Shungnak, RNAV (GPS) RWY 18, Amdt 5A, CANCELLED specified, as follows: 9, Amdt 2 Indianola, MS, Indianola Muni, NDB RWY Shungnak, AK, Shungnak, RNAV (GPS) RWY 36, Amdt 5A, CANCELLED PART 97—STANDARD INSTRUMENT 27, Amdt 2 Lewistown, MT, Lewistown Muni, RNAV APPROACH PROCEDURES Hamilton, AL, Marion County-Rankin Fite, (GPS) RWY 8, Amdt 1A Takeoff Minimums and Obstacle DP, Amdt Rochester, NY, Greater Rochester Intl, ■ 1. The authority citation for part 97 1 Takeoff Minimums and Obstacle DP, Amdt Prattville, AL, Prattville-Grouby Field, 7 continues to read as follows: Takeoff Minimums and Obstacle DP, Amdt Aurora, OR, Aurora State, Takeoff Minimums Authority: 49 U.S.C. 106(g), 40103, 40106, 1 and Obstacle DP, Amdt 3 40113, 40114, 40120, 44502, 44514, 44701, Reform, AL, North Pickens, Takeoff North Bend, OR, Southwest Oregon Rgnl, 44719, 44721–44722. Minimums and Obstacle DP, Amdt 1 NDB RWY 4, Amdt 5A

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North Bend, OR, Southwest Oregon Rgnl, b. Rotary position feedback units (e.g., DEPARTMENT OF THE TREASURY RNAV (GPS) Y RWY 4, Orig-A inductive type devices, graduated North Bend, OR, Southwest Oregon Rgnl, scales, infrared systems or ‘‘laser’’ Internal Revenue Service VOR–A, Amdt 5A systems) having an ‘‘accuracy’’ less North Bend, OR, Southwest Oregon Rgnl, ° 26 CFR Part 301 VOR/DME–B, Amdt 4A (better) than 0.00025 ; Scappoose, OR, Scappoose Industrial N.B.: For ‘‘laser’’ systems see also [TD 9553] Airpark, LOC/DME RWY 15, Amdt 2 2B006.b.2. Bay City, TX, Bay City Muni, Takeoff c. ‘‘Compound rotary tables’’ and RIN 1545–BH90 Minimums and Obstacle DP, Orig ‘‘tilting spindles’’, capable of upgrading, Disregarded Entities; Excise Taxes and Denton, TX, Denton Muni, ILS OR LOC RWY according to the manufacturer’s 18, Amdt 9 Employment Taxes Devine, TX, Devine Muni, Takeoff specifications, machine tools to or above Minimums and Obstacle DP, Amdt 1 the levels controlled by 2B001 to 2B009. AGENCY: Internal Revenue Service (IRS), Kenedy, TX, Karnes County, RNAV (GPS) * * * * * Treasury. RWY 16, Orig [FR Doc. 2011–27753 Filed 10–25–11; 8:45 am] ACTION: Final regulations and removal of Kenedy, TX, Karnes County, RNAV (GPS) BILLING CODE 1505–01–D temporary regulations. RWY 34, Orig Kenedy, TX, Karnes County, VOR/DME–A, SUMMARY: This document contains final Amdt 7 DEPARTMENT OF COMMERCE regulations relating to disregarded Paducah, TX, Dan E. Richards Muni, Takeoff entities and excise taxes. These Minimums and Obstacle DP, Orig Bureau of Industry and Security regulations also make conforming Williamsburg, VA, Williamsburg-Jamestown, Takeoff Minimums and Obstacle DP, Amdt changes to the tax liability rule for 2 15 CFR Part 774 disregarded entities and the treatment of Walla Walla, WA, Walla Walla Rgnl, NDB entity rule for disregarded entities with RWY 20, Amdt 6 The Commerce Control List respect to employment taxes. These Milwaukee, WI, General Mitchell Intl, ILS OR regulations affect disregarded entities in CFR Correction LOC RWY 19R, Amdt 12 general and, in particular, disregarded Phillips, WI, Price County, Takeoff In Title 15 of the Code of Federal entities that pay or pay over certain Minimums and Obstacle DP, Amdt 1 Regulations, Parts 300–799, revised as of federal excise taxes or that are required Fairmont, WV, Fairmont Muni-Frankman January 1, 2011, on page 684, in to be registered by the IRS. Field, VOR/DME–A, Amdt 1 Supplement No. 1 to Part 774, in ECCN DATES: Effective Date: These regulations [FR Doc. 2011–27371 Filed 10–25–11; 8:45 am] 1C118, the ‘‘Items’’ paragraph is revised are effective on October 26, 2011. BILLING CODE 4910–13–P to read as follows: Applicability Date: For dates of Supplement No. 1 to PART 774—THE applicability, see §§ 301.7701–2(e)(2), COMMERCE CONTROL LIST 301.7701–2(e)(5), and 301.7701–2(e)(6). DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: * * * * * Bureau of Industry and Security Michael H. Beker, (202) 622–3070 (not 1C118 Titanium-stabilized duplex a toll-free number). stainless steel (Ti-DSS), having all of the SUPPLEMENTARY INFORMATION: 15 CFR Part 774 following characteristics (see List of Items Controlled). Background The Commerce Control List * * * * * This document contains amendments CFR Correction Items: to the Procedure and Administration In Title 15 of the Code of Federal a. Having all of the following Regulations (26 CFR part 301) under Regulations, Parts 300–799, revised as of characteristics: section 7701 of the Internal Revenue January 1, 2011, in Supplement No. 1 to a.1. Containing 17.0–23.0 weight Code (Code). Part 774, in ECCN 2B008, the ‘‘Items’’ percent chromium and 4.5–7.0 weight Temporary regulations (TD 9462, 74 paragraph on page 719 is revised to read percent nickel; FR 46903) and a cross-reference notice as follows: a.2. Having a titanium content of of proposed rulemaking (REG–116614– greater than 0.10 weight percent; and 08, 74 FR 46957) were published in the Supplement No. 1 to PART 774—THE Federal Register on September 14, 2009 COMMERCE CONTROL LIST a.3. A ferritic-austenitic microstructure (also referred to as a two- (the 2009 proposed regulations). On * * * * * phase microstructure) of which at least October 14, 2009, corrections to the 2B008 Assemblies or Units, Specially 10 percent is austenite by volume temporary regulations (74 FR 52677) Designed for Machine Tools, or (according to ASTM E–1181–87 or and to the cross-reference notice of Dimensional Inspection or Measuring national equivalents), and proposed rulemaking (74 FR 52708) Systems and Equipment, as Follows were published in the Federal Register. b. Having any of the following forms: (See List of Items Controlled). The 2009 proposed regulations clarify b.1. Ingots or bars having a size of 100 that a single-owner eligible entity that is * * * * * mm or more in each dimension; Items: disregarded as an entity separate from a. Linear position feedback units (e.g., b.2. Sheets having a width of 600 mm its owner for any purpose under inductive type devices, graduated or more and a thickness of 3 mm or less; § 301.7701–2, but regarded as an entity scales, infrared systems or ‘‘laser’’ or for certain excise tax purposes under systems) having an overall ‘‘accuracy’’ b.3. Tubes having an outer diameter of § 301.7701–2(c)(2)(v), is treated as a less (better) than (800 + (600 × L × 600 mm or more and a wall thickness corporation with respect to those excise 10¥3)) nm (L equals the effective length of 3 mm or less. taxes. In addition, the 2009 proposed in mm); * * * * * regulations make conforming changes to N.B.: For ‘‘laser’’ systems see also [FR Doc. 2011–27751 Filed 10–25–11; 8:45 am] the tax liability rule for disregarded 2B006.b.1.c and d. BILLING CODE 1505–01–D entities in § 301.7701–2(c)(2)(iii) and the

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treatment of entity rule for disregarded those previously taxable transactions no Act (5 U.S.C. chapter 5) does not apply entities with respect to employment longer subject to excise tax when the to these regulations, and, because the taxes in § 301.7701–2(c)(2)(iv)(B). owner of an eligible entity elected to be regulations do not impose a collection No public hearing was requested or a disregarded entity. The 2007 of information on small entities, the held. One written comment was regulations merely restored the long- Regulatory Flexibility Act (5 U.S.C. received. After consideration of the standing and reasonable pre-1997 rule. chapter 6) does not apply. Pursuant to comment, the proposed regulations are Accordingly, the final regulations retain section 7805(f) of the Code, the adopted by this Treasury decision and the rule that excise taxes imposed on proposed regulations preceding these the temporary regulations are removed. amounts paid for covered services (such regulations were submitted to the Chief as air transportation) apply to amounts Counsel for Advocacy of the Small Summary of the Comment and paid between state law entities for such Business Administration for comment Explanation of Provisions services (unless a statutory exception on its impact on small business. A. Air Transportation Excise Tax applies). Drafting Information The commenter asked whether an B. Indoor Tanning Services Excise Tax amount paid to a single-member limited The principal author of these After the 2009 proposed regulations liability company (SMLLC) by its owner regulations is Michael H. Beker, Office were published, section 10907 of the for air transportation provided to its of the Associate Chief Counsel Patient Protection and Affordable Care owner will be deemed to be paid to a (Passthroughs and Special Industries). Act, Public Law 111–148 (124 Stat. 119 separate corporation and therefore However, other personnel from the IRS (2010)) added new Chapter 49 to the subject to federal transportation excise and the Treasury Department Code, which contains an excise tax on taxes under section 4261. participated in their development. amounts paid for indoor tanning On August 16, 2007, final regulations services under new section 5000B. The List of Subjects in 26 CFR Part 301 under § 301.7701–2(c)(2)(v)(A) were IRS and Treasury Department are aware published in the Federal Register (TD Employment taxes, Estate taxes, of issues relating to the treatment of 9356, 72 FR 45891) (the 2007 final Excise taxes, Gift taxes, Income taxes, qualified subchapter S subsidiaries and regulations). The 2007 final regulations Penalties, Reporting and recordkeeping single-owner eligible entities that are provide that a single-owner eligible requirements. disregarded as entities separate from entity that is disregarded as an entity their owners with respect to tax Adoption of Amendments to the separate from its owner for Federal tax liabilities imposed by Chapter 49 of the Regulations purposes is treated as a separate entity Code. The issues are similar to those Accordingly, 26 CFR part 301 is for certain excise tax purposes, addressed in § 301.7701–2(c)(2)(v). amended as follows: including Federal tax liabilities imposed Accordingly, the IRS and the Treasury by Chapter 33 of the Code. Under this Department plan to issue regulations PART 301—PROCEDURE AND rule, amounts paid after December 31, addressing the treatment of those ADMINISTRATION 2007, to an SMLLC by its owner for air entities with respect to tax liabilities transportation are subject to the tax ■ imposed by Chapter 49 of the Code. Paragraph 1. The authority citation imposed by section 4261. The for part 301 continues to read in part as commenter suggested that the rule in C. Firearms Excise Tax and Harbor follows: the 2007 final regulations created a tax Maintenance Tax Authority: 26 U.S.C. 7805. * * * liability where one did not exist before. The rules in the final regulations do ■ Prior to the adoption of the not apply to the firearms excise tax Par. 2. Section 301.7701–2 is § 301.7701–2 regulations in 1997, administered by the Alcohol and amended by: ■ amounts paid from one state law entity Tobacco Tax and Trade Bureau (TTB) 1. Revising paragraphs (c)(2)(iii), to another for air transportation were and the harbor maintenance tax (c)(2)(iv)(B), (c)(2)(v)(B), (c)(2)(v)(C) potentially subject to the section 4261 administered by U.S. Customs and Example (iv), (e)(2), and (e)(6). tax, regardless of the relationship Border Protection (Customs). Rules in ■ 2. Adding two sentences at the end of between the entities. See for example, 26 CFR part 301 generally do not apply paragraph (e)(5). Rev. Ruls. 76–394 (1976–2 CB 355) and for purposes of these taxes and The additions and revisions read as 70–325 (1970–1 CB 231), which involve taxpayers should not assume that a follows: transportation between related single owner entity will be disregarded § 301.7701–2 Business entities; corporations and between corporations under applicable TTB or Customs rules. and their shareholders. Because there definitions. are separate and distinct entities in each Availability of IRS Documents * * * * * case, these rulings hold that payments The IRS revenue rulings cited in this (c) * * * made from one entity to another for preamble are published in the Internal (2) * * * taxable air transportation are ‘‘amounts Revenue Cumulative Bulletin and are (iii) Tax liabilities of certain paid’’ for purposes of the section 4261 available from the Superintendent of disregarded entities—(A) In general. An tax. While section 4282 provides a Documents, P.O. Box 371954, entity that is disregarded as separate limited exception in the case of air Pittsburgh, PA 15250–7954. from its owner for any purpose under transportation excise taxes for certain this section is treated as an entity affiliated groups that do not offer air Special Analyses separate from its owner for purposes transportation services to non-affiliated It has been determined that this of— members, no exception had been Treasury decision is not a significant (1) Federal tax liabilities of the entity provided prior to 1997 for other regulatory action as defined in with respect to any taxable period for situations. Executive Order 12866. Therefore, a which the entity was not disregarded; The adoption of the § 301.7701–2 regulatory assessment is not required. It (2) Federal tax liabilities of any other regulations in 1997 departed from this has also been determined that section entity for which the entity is liable; and long-standing precedent by making 553(b) of the Administrative Procedure (3) Refunds or credits of Federal tax.

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(B) Examples. The following September 14, 2009. For rules that apply Avenue, SE., Washington, DC 20590, examples illustrate the application of before September 14, 2009, see 26 CFR between 9 a.m. and 5 p.m., Monday paragraph (c)(2)(iii)(A) of this section: part 301 revised as of April 1, 2009. through Friday, except Federal Example 1. In 2006, X, a domestic (6)(i) Except as provided in this Holidays. corporation that reports its taxes on a paragraph (e)(6), paragraph (c)(2)(v) of calendar year basis, merges into Z, a this section applies to liabilities FOR FURTHER INFORMATION CONTACT: If domestic LLC wholly owned by Y that is imposed and actions first required or you have questions on this rule, call or disregarded as an entity separate from Y, in permitted in periods beginning on or e-mail Mr. Bill H. Brazier, Bridge a state law merger. X was not a member of after January 1, 2008. Management Specialist, Fifth Coast a consolidated group at any time during its (ii) Paragraphs (c)(2)(v)(B) and Guard District, telephone (757) 398– taxable year ending in December 2005. Under (c)(2)(v)(C) Example (iv) of this section 6422, e-mail [email protected]. If the applicable state law, Z is the successor apply on and after September 14, 2009. you have questions on reviewing the to X and is liable for all of X’s debts. In 2009, docket, call Renee V. Wright, Program the Internal Revenue Service (IRS) seeks to * * * * * extend the period of limitations on Manager, Docket Operations, (202) 366– assessment for X’s 2005 taxable year. Because § 301.7701–2T [Removed] 9826. Z is the successor to X and is liable for X’s ■ Par. 3. Section 301.7701–2T is SUPPLEMENTARY INFORMATION: The North 2005 taxes that remain unpaid, Z is the removed. Carolina Department of Transportation proper party to sign the consent to extend the period of limitations. Steven T. Miller, (NCDOT), who owns and operates this Example 2. The facts are the same as in Deputy Commissioner for Services and bascule lift bridge, has requested a Example 1, except that in 2007, the IRS Enforcement. temporary deviation from the current determines that X miscalculated and Approved: October 18, 2011. operating regulations set out in 33 CFR underreported its income tax liability for 117.843(a), to facilitate the general Emily S. McMahon, 2005. Because Z is the successor to X and is maintenance of the bridge. liable for X’s 2005 taxes that remain unpaid, Acting, Assistant Secretary of the Treasury the deficiency may be assessed against Z and, (Tax Policy). In the closed position to vessels, the in the event that Z fails to pay the liability [FR Doc. 2011–27720 Filed 10–25–11; 8:45 am] US 70 (Alfred Cunningham) Bridge, at after notice and demand, a general tax lien BILLING CODE 4830–01–P mile 0.0, at New Bern, NC has a vertical will arise against all of Z’s property and clearance of 14 feet, above mean high rights to property. water. (iv) * * * DEPARTMENT OF HOMELAND Under this temporary deviation, the (B) Treatment of entity. An entity that SECURITY drawbridge will be closed to vessels is disregarded as an entity separate from requiring an opening each day from 8 its owner for any purpose under this Coast Guard p.m. until 11:59 p.m. on October 26, section is treated as a corporation with 2011 and October 27, 2011. There are no respect to taxes imposed under Subtitle 33 CFR Part 117 alternate routes for vessels transiting C—Employment Taxes and Collection of [Docket No. USCG–2011–0960] this section of the Trent River. Income Tax (Chapters 21, 22, 23, 23A, The Coast Guard reviewed the 2010 24, and 25 of the Internal Revenue Drawbridge Operation Regulations; Code). drawbridge logs provided by NCDOT. In Trent River, New Bern, NC the month of October 2010, between the * * * * * AGENCY: Coast Guard, DHS. hours of 8 p.m. and 11:59 p.m., there (v) * * * were approximately four recorded (B) Treatment of entity. An entity that ACTION: Notice of temporary deviation vessel openings of the drawbridge. The is disregarded as an entity separate from from regulations. drawbridge will be able to open for its owner for any purpose under this emergencies. Most vessel traffic section is treated as a corporation with SUMMARY: The Commander, Fifth Coast utilizing this bridge consists of respect to items described in paragraph Guard District, has issued a temporary recreational boaters. October is outside (c)(2)(v)(A) of this section. deviation from the regulations (C) * * * governing the operation of the US 70 of the high recreational boating season Example. *** (Alfred Cunningham) Bridge, at mile therefore, only a small number of (iv) Assume the same facts as in 0.0, over the Trent River, at New Bern, boaters may be affected by this paragraph (c)(2)(v)(C) Example (i) and NC. The deviation restricts the temporary closure. There are no (ii) of this section. If LLCB does not pay operation of the draw span to facilitate alternate routes on this section of Trent the tax on its sale of coal under chapter the general maintenance of the Bridge. River. Vessels that can pass through the bridge in the closed position may do so 32 of the Internal Revenue Code, any DATES: This deviation is effective from notice of lien the Internal Revenue 8 p.m. October 26, 2011 through 11:59 at any time. Service files will be filed as if LLCB p.m. on October 27, 2011. The Coast Guard will inform all users were a corporation. ADDRESSES: Documents mentioned in of the waterway through our Local and * * * * * this preamble as being available in the Broadcast Notice to Mariners of the (e) * * * docket are part of docket USCG–2011– closure periods for the bridge so that (2) Paragraph (c)(2)(iii) of this section 0960 and are available online by going vessels can arrange their transits to applies on and after September 14, to http://www.regulations.gov, inserting minimize any impacts caused by the 2009. For rules that apply before USCG–2011–0960 in the ‘‘Keywords’’ temporary deviation. September 14, 2009, see 26 CFR part box, and then clicking ‘‘Search’’. This In accordance with 33 CFR 117.35(e), 301, revised as of April 1, 2009. material is also available for inspection the draw must return to its original * * * * * or copying at the Docket Management operating schedule immediately at the (5) * * * However, paragraph Facility (M–30), U.S. Department of end of the designated time period. This (c)(2)(iv)(B) of this section applies with Transportation, West Building Ground deviation from the operating regulations respect to wages paid on or after Floor, Room W12–140, 1200 New Jersey is authorized under 33 CFR 117.35.

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Dated: October 18, 2011. the SR 13 Bridge across the Nanticoke POSTAL SERVICE Waverly W. Gregory, Jr., River, mile 39.6, at Seaford, DE. The Bridge Program Manager, By direction of the requested deviation is to accommodate 39 CFR Part 241 Commander, Fifth Coast Guard District. painting and cleaning of the bridge. The Post Office Organization and [FR Doc. 2011–27721 Filed 10–25–11; 8:45 am] vertical clearance of this single-leaf Administration: Establishment, BILLING CODE 9110–04–P bascule bridge is three feet at mean high water (MHW) in the closed position and Classification, and Discontinuance unlimited in the open position. During AGENCY: Postal Service. DEPARTMENT OF HOMELAND this deviation period, the vertical ACTION: Final rule. SECURITY clearance will be limited to one foot at MHW due to the scaffolding that will be Coast Guard SUMMARY: The Postal Service is used for the maintenance of the bridge. amending its regulations to improve the The bridge will remain in the closed 33 CFR Part 117 administration of the Post Office closing position for the entire month. In critical and consolidation process. This final [Docket No. USCG–2011–0972] situations the bridge will be able to rule adopts changes to Postal Service open if at least 24 hours of notice is regulations pertaining to the definition Drawbridge Operation Regulation; given. There are no alternate routes of ‘‘consolidation’’ and the staffing of Nanticoke, Seaford, DE available to vessels. Post Offices. AGENCY: Coast Guard, DHS. The current operating schedule for the DATES: Effective Date: December 1, 2011. ACTION: Notice of temporary deviation bridge is set out in 33 CFR 117.243(b). FOR FURTHER INFORMATION CONTACT: Jim from regulations. According to that schedule, during the Boldt, (202) 268–6799. month of November the bridge shall SUPPLEMENTARY INFORMATION: SUMMARY: The Commander, Fifth Coast open on signal, except that from 6 p.m. On March Guard District, has issued a temporary to 8 a.m. Monday through Friday and 31, 2011, the Postal Service published a deviation from the regulation governing 3:30 p.m. through 7:30 a.m. Saturday proposed rule in the Federal Register the operation of the SR 13 Bridge across and Sunday, if at least four hours notice (76 FR 17794) to improve the process for the Nanticoke River, mile 39.6, at is given. discontinuing Post Offices and other Seaford, DE. The deviation is necessary Postal Service-operated retail facilities. Logs from November 2010 have The proposed rule also included various to accommodate the cleaning and shown that there were 20 openings for painting of the bridge. This deviation proposals to apply certain the entire month. Sixteen of those discontinuance procedures to all retail allows the bridge to remain in the openings were on November 13th and closed position throughout the month of facilities operated by Postal Service 14th. The openings were due to a Bass employees. The Postal Service requested November to facilitate the maintenance Fishing Tournament; however, the work. comments on the proposed rule. tournament is not scheduled for this On July 13, 2011, the Postal Service DATES: This deviation is effective from year minimizing the amount of published an initial final rule (76 FR 12:01 a.m. on November 1, 2011 to anticipated openings. The majority of 41413), with minor corrections 11:59 on November 30, 2011. vessel traffic utilizing this waterway is published on July 21, 2011 (76 FR ADDRESSES: Documents mentioned in recreational boaters. There is one 43898). That final rule responded to this preamble as being available in the mariner that requests most of the bridge comments and made numerous changes docket are part of docket USCG–2011– openings throughout the winter months. from the proposed rule, resulting in 0972 and are available online by going Marinis Bros., Inc. has coordinated with revised regulations that took effect on to http://www.regulations.gov, inserting this mariner. DelDOT has coordinated July 14, 2011. In the final rule, the USCG–2011–0972 in the ‘‘Keyword’’ with the town concerning the month Postal Service noted that certain aspects box and then clicking ‘‘Search’’. They long bridge closure as well. The Coast of the proposed rule were subject to are also available for inspection or Guard will inform all other users of the then-ongoing consultations under 39 copying at the Docket Management waterway through our Local and U.S.C. 1004(b)–(d). As a result, the first Facility (M–30), U.S. Department of Broadcast Notices to Mariners so that final rule implemented only changes to Transportation, West Building Ground mariners can arrange their transits to 39 CFR part 241 that were not subject Floor, Room W12–140, 1200 New Jersey minimize any impact caused by the to ongoing consultations. 76 FR 41413. Avenue, SE., Washington, DC 20590, temporary deviation. The Coast Guard The Postal Service advised that changes between 9 a.m. and 5 p.m., Monday will also require the bridge owner to subject to consultation—namely, those through Friday, except Federal holidays. post signs on either side of the bridge concerning the definition of FOR FURTHER INFORMATION CONTACT: If notifying mariners of the temporary ‘‘consolidation’’ and the staffing of Post you have questions on this rule, call or regulation change. Offices—were being deferred and could e-mail Lindsey Middleton, Bridge In accordance with 33 CFR 117.35(e), be addressed in a subsequent final rule. Management Specialist, Coast Guard; the drawbridge must return to its regular Id. at 41414–15. telephone 757–398–6629, e-mail operating schedule immediately at the At this time, the consultations [email protected]. If you end of the designated time period. This referenced in the first final rule have have questions on viewing the docket, deviation from the operating regulations run their course, and the Postal Service call Renee V. Wright, Program Manager, is authorized under 33 CFR 117.35. is prepared to issue the remaining Docket Operations, telephone 202–366– proposed changes, with minor Dated: October 12, 2011. 9826. modifications as explained in section III SUPPLEMENTARY INFORMATION: Marinis Waverly W. Gregory, Jr., below. Analysis of the pertinent Bros. Inc., on behalf of Delaware Bridge Program Manager, Fifth Coast Guard comments received appears below. With Department of Transportation (DelDOT), District. the changes described herein, the final has requested a temporary deviation [FR Doc. 2011–27722 Filed 10–25–11; 8:45 am] rule will take effect upon the from the current operating regulation of BILLING CODE 9110–04–P publication of corresponding changes in

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the Postal Bulletin, scheduled for station or classified branch. See, e.g., Service itself. This legal analysis December 1, 2011. SBOC Opinion at 52, 64; Comments of appears to overlook the fact that most of American Postal Workers Union, AFL– the authorities on which it relies, some I. Response to Comments Received CIO, Eugene Area Local No. 679, PRC of which date back to the 1970s, were As recounted in the first final rule (76 Docket No. A2011–4, January 21, 2011, premised on Postal Service regulations FR 41413), the Postal Service received at 1–3. While the Postal Service in effect at the time and did not speak approximately 257 comments in continues to disagree with the to whether the Postal Service was response to the proposed rule. proponents of this view as to whether somehow precluded from changing Commenters included 34 Members of that lack of perceived difference has those regulations. That the Postal Congress, the Postal Regulatory legal relevance, the Postal Service Service’s previous interpretation of Commission (‘‘Commission’’ or ‘‘PRC’’), acknowledges the practical vitality of ‘‘consolidation’’ was found to be five state legislators, three postmasters’ the observation. As a result, it is reasonable does not mean that that and postal supervisors’ organizations, difficult to understand what concrete interpretation is the only reasonable and one postal lessors’ organization and purpose would be furthered by valid one. See Citizens for the Hopkins various of its members, one mailing continuing to apply discontinuance Post Office v. United States Postal Serv., industry stakeholder, and numerous procedures to the conversion of one 830 F. Supp. 296, 299 (D.S.C. 1993) other postal customers. Although some Postal Service-operated retail facility (‘‘This court finds the definition of comments were favorable about certain type to another, when customers will ‘consolidation’ advanced by the Postal aspects of the proposed rule, almost all not see any significant difference in Service [in its then-current regulations] of the comments expressed concerns service. In contrast, customers are more to be one which is reasonable[.]’’ about various aspects of the proposed likely to experience or perceive an (emphasis added)).1 rule. Below we discuss the comments impact from the replacement of a Postal The United States Supreme Court has pertinent to this final rule and our Service-operated retail facility with a long held that an ‘‘initial agency response to each. contractor-operated retail facility. interpretation [of a statute] is not A. Definition of ‘‘Consolidation’’ ‘‘Consolidation,’’ in its former sense instantly carved in stone’’ and that any of changing a Post Office into a station agency ‘‘must consider varying Several commenters expressed or branch of another Post Office, has concern about the proposed rule’s interpretations and the wisdom of its rarely been applied over the last 20 policy on a continuing basis.’’ Chevron, interpretation of ‘‘consolidation,’’ such years. From the perspective of postal that the term would no longer apply to U.S.A., Inc. v. Natural Resources customers, a conversion between Postal Defense Council, Inc., 467 U.S. 837, the conversion of a Post Office into a Service-operated retail facility types has Postal Service-operated station or 863–64 (1984). This is the case even only minimal impact, as few customers where a revised interpretation branch. In particular, these commenters are aware of the distinction between claim that this approach, combined with ‘‘represents a sharp break with prior different types of retail units. interpretations.’’ Id. at 862. Because the the fact that 39 U.S.C. 404(d)(5) does not Unlike classified stations and plain language of the statute is silent confer appeal rights for closings or branches, contractor-operated retail and ambiguous as to the intended consolidations of stations and branches, facilities can be closed without being definition of ‘‘consolidation,’’ and could result in an effective denial of subject to the discontinuance process. because the Postal Service is charged appeal rights if the Postal Service were Relationships established through a with implementing 39 U.S.C. 404(d), the to convert a Post Office into a station or contract have alternative mechanisms Postal Service is free to revise its branch and then proceed to close or for termination or other changes. The consolidate the facility. Comments continuation of contractor-operated interpretation of the statute so long as about appeal rights were discussed in facilities is much more dependent on its interpretation is reasonable. See id. at the first final rule (76 FR 41414–15). the contractor’s willingness to furnish 842–43; Rust v. Sullivan, 500 U.S. 173, Overall, this rulemaking expands the services under contract for a reasonable 186–87 (1991); see also Citizens for the circumstances in which full-blown fee. Contractor-operated units may Hopkins Post Office, 830 F. Supp. at discontinuance studies are used; hence, accordingly experience less 298–99 (‘‘The term ‘consolidation’ as it increases the overall transparency of predictability in their continuation. used in § 404(b) [now 404(d)] is not discontinuance decisions affecting Hence, it is more important that defined in the statute. Consequently, Postal Service-operated retail facilities. customers and other stakeholders have this court will begin with the principle Previously, stations and branches an opportunity to provide input when a that the construction placed on a statute studied for discontinuance were studied Postal Service-operated retail facility is by the agency charged with in a faster, less intensive process. See converted into a contractor-operated administering it is entitled to PRC, Advisory Opinion Concerning the retail facility than when a conversion considerable deference and should be Process for Evaluating Closing Stations results in Postal Service-operated upheld if reasonable.’’). In the proposed and Branches (‘‘SBOC Opinion’’), classified station or branch. The latter rule and elsewhere in this final rule, the Docket No. N2009–1, March 10, 2010, at are not subject to the greater Postal Service has explained why it is 48–57, 61–65 (exploring differences unpredictability of a contractor- reasonable to revise its interpretation of between the discontinuance processes operator, and so customers are unlikely ‘‘consolidation’’ in order to give sensible for Post Offices and for stations and to perceive a significant difference in and feasible effect to larger regulatory branches). service when a Post Office is converted Contrary to longstanding arguments into a Postal Service-operated classified 1 The author of the legal opinion appears to have misquoted this sentence of the Citizens for the by the Postal Service resting on much of station or branch. Hopkins Post Office opinion as referring to ‘‘the the legislative history and case law on Two postmaster organizations [sic] one which is reasonable.’’ This error may help which some of the comments rely, the submitted a legal opinion to the effect to explain why the author reads the opinion as Commission, labor organizations, and that the proposed approach to supporting the author’s conclusion that the Postal Service’s historical interpretation of others have asserted that customers ‘‘consolidation’’ runs counter to a ‘‘consolidation’’ is the only permissible one, rather perceive no functional difference consistent definition provided by than one of multiple interpretive possibilities. The between a Post Office and a classified legislative history, courts, and the Postal actual quotation supports the latter view.

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changes that will increase transparency among other things, pay policies and costs and enhance value. Therefore, it is and public participation. schedules. It was not intended to—and a reasonable exercise of the Postal The same legal opinion cited a unambiguously did not—modify the Service’s authority to administer its pleading filed by the Postal Service in Postal Service’s authority to determine statutory objectives, and it is not an ongoing federal action to support its the staffing and scope of its retail inconsistent with title 39 of the U.S. view that the instant rulemaking facility network. See 39 U.S.C. 403(b)(1), Code. somehow undoes an indelible aspect of 403(b)(3), 404(a)(3), 1001(e)(4)–(5). One commenter was concerned that, postal law. The legal opinion fails to Congress was explicit in framing as a result of the same change, the note that the subject matter of the Section 1004(i)’s definitions as presence of Post Offices staffed by non- litigation and the quoted pleading itself applicable only ‘‘for purposes of this postmaster personnel would make it concern Postal Service regulations in section.’’ 39 U.S.C. 1004(i). Cf. United easier for the Postal Service to close effect at the time. They do not prejudice States v. Cons. Life Ins. Co., 430 U.S. those facilities. It is unclear how such the Postal Service’s authority or 725, 769 (1977) (White, J., dissenting) an effect would flow from mere staffing discretion to revise those regulations at (finding a definition under section arrangements, however. The same a later time. An agency is entitled to 801(c)(2) and (3) of the Internal Revenue requirements, criteria, and procedures defend its actions based on its legal Code of 1954 to be inapplicable to rules apply to all Post Offices, regardless of interpretation and regulations in effect for taxing the income of life insurance how they are staffed. As explained in at the applicable time, rather than on companies from modified coinsured the proposed rule, those same prior or subsequent policies and contracts under section 820 of the requirements, criteria, and procedures regulations. As the Postal Service noted Internal Revenue Code of 1954, because are now applied, as a matter of policy, in its proposed rule and first final rule, the definition was applicable only ‘‘for to Postal Service-operated stations and and reiterates here, this rulemaking is purposes of * * * subsection 801(a)’’); branches, which are not staffed by not retroactive and does not affect any Thomas v. U.S. Bank Nat’l Ass’n, 575 postmasters today. If anything, this actions taken by the Postal Service F.3d 794, 798 (8th Cir. 2009) (construing change could lead to the continued under previous regulations. See preemption language ‘‘for purposes of operation of Post Offices that otherwise generally, Bowen v. Georgetown Univ. this section’’ in 12 U.S.C. 1831d(a) as would be discontinued, due to the Hosp., 488 U.S. 204, 208 (1988) (holding meaning that ‘‘conflicting state Postal Service’s ability to staff them in that agency regulations are not constitutions or statutes are not a more flexible and economical fashion. retroactive except as specifically preempted for every and all purposes, Another commenter viewed the authorized by Congress). but only for purposes of ‘this section’’’). proposed change to 39 CFR 241.1 as In sum, the proposed reinterpretation Congress could have applied Section of ‘‘consolidation’’ is within the Postal inconsistent with Employee and Labor 1004(i)’s definitions to title 39 more Relations Manual (ELM) 113.3, which Service’s authority to administer the broadly or even to section 404(d) in the commenter believed to correspond statutory scheme. The Postal Service is particular, but it did not do so. to 39 U.S.C. 1004(i)(3). ELM 113.3(k) adopting a new interpretation of the Therefore, the limited context of the reflects the Postal Service’s previous existing statutory term, while Postmaster Equity Act is inapposite to practice of requiring a postmaster at all continuing to apply the discontinuance this rulemaking. procedures established by Congress to Even if the Postmaster Equity Act had Post Offices. As explained above, 39 consolidations as distinct from closings. some import in this context, the U.S.C. 1004(i)(3) defines a ‘‘postmaster’’ The proposed interpretation is proposed rule would not be inconsistent in association with a Post Office, but reasonable in its own right and goes a with the definition of a ‘‘postmaster’’ does not require that a Post Office be long way toward closing the gap therein. The Postmaster Equity Act does associated with a postmaster staffing between respective Postal Service and not require that each postmaster manage each Post Office in all cases. Hence, the Commission positions. It also fits into only one Post Office or that every Post Postal Service is not precluded by the larger framework of changes to Office be individually staffed by a statute from taking a different approach. orient discontinuance processes more postmaster. Indeed, in many cities, The Postal Service plans to update ELM appropriately around customer postmasters are responsible for a main 113.3(k) to reflect the change to 39 CFR expectations—as the Commission and Post Office and several classified 241.1. others have recommended for years— stations and branches, which the A postal supervisors’ organization and to increase public transparency and Commission has repeatedly described as raised concerns that the replacement of participation. having no functional difference from Executive and Administrative Schedule customers’ perspectives from Post (EAS) employees with bargaining-unit B. Staffing of Post Offices Offices. The Postal Service is confident employees, and/or postmasters with Many commenters expressed the view that rural postmasters would be clerks-in-charge, would increase that the Postmaster Equity Act, Public similarly capable of overseeing workload, deprive communities of Law 108–86 (2003), precludes the operations at more than one retail access to knowledgeable management proposed change to 39 CFR 241.1 such facility. personnel, and not offer significant cost that a Post Office may be staffed by non- Decisions about the staffing of Post savings in light of current pay ceilings. postmaster personnel. As codified in 39 Offices are within the Postal Service’s The Postal Service has not yet U.S.C. 1004(i)(3), the Postmaster Equity general authority to manage Post Offices determined to take any such specific Act defines a ‘‘postmaster’’ as ‘‘an and staff appointments under the Postal action in furtherance of these changes to individual who is the manager in charge Reorganization Act provisions cited the overarching regulations. Any of the operations of a post office, with above. The proposed rule is consistent particular staffing decision would or without the assistance of subordinate with the definition of a postmaster presumably take account of workload, managers or supervisors.’’ under the Postmaster Equity Act, community needs, and cost savings. In The Postmaster Equity Act serves the exercises appropriate and reasonable this rulemaking, the Postal Service only purpose of requiring consultation by the rule-making authority under the Postal removes, as a general matter, a self- Postal Service with groups representing Reorganization Act, and streamlines imposed restriction on its discretion to middle management tiers regarding, postal operations in order to reduce make such decisions in instances where

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more flexible staffing may be the most Authority: 39 U.S.C. 101, 401, 403, 404, (iv) ‘‘Consolidation’’ means an action rational option. 410, 1001. that converts a Postal Service-operated retail facility into a contractor-operated II. Explanation of Changes From ■ 2. In § 241.1, paragraph (a) is revised retail facility. The resulting contractor- Proposed Rule to read as follows: operated retail facility reports to a Postal The final rule includes the following § 241.1 Post offices. Service-operated retail facility. additional changes to the proposed rule. (a) Establishment. Post Offices are * * * * * Paragraph 241.1(a) has been revised to established and maintained at locations (b) * * * clarify that the operation or staffing of deemed necessary to ensure that regular (2) * * * a Post Office by non-postmaster and effective postal services are (i) In a consolidation, the ZIP Code for personnel must be at the direction of the available to all customers within the replacement contractor-operated postmaster, and that it may include specified geographic boundaries. A Post retail facility is the ZIP Code originally times when the postmaster is not Office may be operated or staffed by a assigned to the discontinued facility. physically present. While the proposed postmaster or by another type of postal * * * * * rule referred to whether a Post Office employee at the direction of the (4) Name of facility established by was ‘‘operated or managed’’ by non- postmaster, including when the consolidation. If a USPS-operated retail postmaster personnel, the phrase postmaster is not physically present. facility is consolidated by establishing ‘‘operated or staffed’’ better reflects the * * * * * in its place a contractor-operated intended meaning that a postmaster ■ 3. In § 241.3: facility, the replacement unit can be would continue to manage operations at ■ a. Paragraph (a)(1)(i)(B) is revised; given the same name of the facility that the Post Office, albeit possibly without ■ b. Paragraph (a)(1)(ii) is redesignated is replaced, if appropriate in light of the personally operating or staffing it on a as paragraph (a)(1)(iii), and new nature of the contract and level of continuous basis. paragraph (a)(1)(ii) is added; service provided. A sentence is added to paragraph ■ c. Newly redesignated paragraph (c) * * * 241.3(a)(1)(ii) (redesignated as (a)(1)(iii) is revised; (2) Consolidation. The proposed 241.3(a)(1)(iii)) to clarify that these ■ d. Paragraph (a)(2)(iv) is revised; action may include a consolidation of regulations will no longer apply to ■ e. Paragraph (b)(2)(i) is revised; USPS-operated retail facilities. A discontinuance actions pending as of ■ f. Paragraph (b)(4) is revised; and consolidation arises when a USPS- December 1, 2011, that pertain to the ■ g. Paragraph (c)(2) is revised. operated retail facility is replaced with conversion of a Post Office to another The revisions and additions read as a contractor-operated retail facility. type of USPS-operated facility. follows: * * * * * The definition of ‘‘consolidation’’ in paragraph 241.3(a)(2)(iv) is revised to § 241.3 Discontinuance of USPS-operated Stanley F. Mires, restrict the term’s definition to instances retail facilities. Attorney, Legal Policy and Legislative Advice. where a Postal Service-operated retail (a) * * * [FR Doc. 2011–27641 Filed 10–25–11; 8:45 am] facility is replaced with a contractor- (1) * * * BILLING CODE 7710–12–P operated retail facility that reports to a (i) * * * Postal Service-operated retail facility. (B) Combine a USPS-operated Post Consistent with the proposed rule, the Office, station, or branch with another ENVIRONMENTAL PROTECTION term no longer encompasses situations USPS-operated retail facility, or AGENCY where a Post Office is replaced with a (ii) The conversion of a Post Office Classified Station or Classified Branch. into, or the replacement of a Post Office 40 CFR Part 180 Paragraph 241.3(b)(4) is revised to with, another type of USPS-operated indicate the possibility that a retail facility is not a discontinuance [EPA–HQ–OPP–2009–0538; FRL–8891–3] consolidated facility’s name, or a similar action subject to this section. A change Bacteriophage of Clavibacter name, can be used by the succeeding in the staffing of a Post Office such that Michiganensis Subspecies facility, rather than suggesting an it is staffed only part-time by a Michiganensis; Exemption From the expectation that the former name will be postmaster, or not staffed at all by a Requirement of a Tolerance maintained, thereby allowing for the postmaster, but rather by another type of range of contract- and service-specific USPS employee, is not a discontinuance AGENCY: Environmental Protection circumstances that can affect such a action subject to this section. Agency (EPA). determination. (iii) The regulations in this section are ACTION: Final rule. The Postal Service hereby adopts the mandatory only with respect to following changes to 39 CFR part 241. discontinuance actions for which initial SUMMARY: This regulation establishes an feasibility studies have been initiated on exemption from the requirement of a List of Subjects in 39 CFR Part 241 or after July 14, 2011. Unless otherwise tolerance for residues of lytic Organization and functions provided by responsible personnel, the bacteriophage of Clavibacter (government agencies), Postal Service. rules under § 241.3 as in effect prior to michiganensis subspecies Accordingly, 39 CFR part 241 is July 14, 2011 shall apply to michiganensis produced in Clavibacter amended as follows: discontinuance actions for which initial michiganensis subspecies feasibility studies have been initiated michiganensis in or on tomato when PART 241—RETAIL ORGANIZATION prior to July 14, 2011. Discontinuance applied as a bactericide in accordance AND ADMINISTRATION: actions pending as of December 1, 2011, with good agricultural practices. On ESTABLISHMENT, CLASSIFICATION, that pertain to the conversion of a Post behalf of OmniLytics, Inc., Interregional AND DISCONTINUANCE Office to another type of USPS-operated Research Project Number 4 (IR–4) facility are no longer subject to these submitted a petition to EPA under the ■ 1. The authority citation for 39 CFR regulations. Federal Food, Drug, and Cosmetic Act part 241 continues to read as follows: (2) * * * (FFDCA) requesting an exemption from

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the requirement of a tolerance. This • Pesticide manufacturing (NAICS • Delivery: OPP Regulatory Public regulation eliminates the need to code 32532). Docket (7502P), Environmental establish a maximum permissible level This listing is not intended to be Protection Agency, Rm. S–4400, One for residues of lytic bacteriophage of exhaustive, but rather provides a guide Potomac Yard (South Bldg.), 2777 S. Clavibacter michiganensis subspecies for readers regarding entities likely to be Crystal Dr., Arlington, VA. Deliveries michiganensis produced in Clavibacter affected by this action. Other types of are only accepted during the Docket michiganensis subspecies entities not listed in this unit could also Facility’s normal hours of operation michiganensis under the FFDCA. be affected. The North American (8:30 a.m. to 4 p.m., Monday through DATES: This regulation is effective Industrial Classification System Friday, excluding legal holidays). October 26, 2011. Objections and (NAICS) codes have been provided to Special arrangements should be made requests for hearings must be received assist you and others in determining for deliveries of boxed information. The on or before December 27, 2011, and whether this action might apply to Docket Facility telephone number is must be filed in accordance with the certain entities. If you have any (703) 305–5805. questions regarding the applicability of instructions provided in 40 CFR part II. Background and Statutory Findings 178 (see also Unit I.C. of the this action to a particular entity, consult SUPPLEMENTARY INFORMATION). the person listed under FOR FURTHER In the Federal Register of September INFORMATION CONTACT. ADDRESSES: EPA has established a 23, 2009 (74 FR 48556) (FRL–8434–7), docket for this action under docket B. How can I get electronic access to EPA issued a notice pursuant to section identification (ID) number EPA–HQ– other related information? 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a OPP–2009–0538. All documents in the You may access a frequently updated docket are listed in the docket index pesticide tolerance petition (PP 9E7552) electronic version of 40 CFR part 180 by IR–4, Rutgers University, 500 College available at http://www.regulations.gov. through the Government Printing Although listed in the index, some Rd. East, Suite 201W, Princeton, NJ Office’s e-CFR site at http:// 08540 (on behalf of OmniLytics, Inc., information is not publicly available, ecfr.gpoaccess.gov/cgi/t/text/text- e.g., Confidential Business Information 9100 South 500 West, Sandy, UT idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ 84070). The petition requested that 40 (CBI) or other information whose 40tab_02.tpl. disclosure is restricted by statute. CFR part 180 be amended by Certain other material, such as C. How can I file an objection or hearing establishing an exemption from the copyrighted material, is not placed on request? requirement of a tolerance for residues the Internet and will be publicly Under FFDCA section 408(g), 21 of bacteriophage of Clavibacter available only in hard copy form. U.S.C. 346a(g), any person may file an michiganensis subspecies Publicly available docket materials are objection to any aspect of this regulation michiganensis. This notice referenced a available in the electronic docket at and may also request a hearing on those summary of the petition prepared by the http://www.regulations.gov, or, if only objections. You must file your objection petitioner, IR–4, which is available in available in hard copy, at the Office of or request a hearing on this regulation the docket via http:// Pesticide Programs (OPP) Regulatory in accordance with the instructions www.regulations.gov. There were no Public Docket in Rm. S–4400, One provided in 40 CFR part 178. To ensure comments received in response to the Potomac Yard (South Bldg.), 2777 S. proper receipt by EPA, you must notice of filing. Crystal Dr., Arlington, VA. The Docket identify docket ID number EPA–HQ– Section 408(c)(2)(A)(i) of FFDCA Facility is open from 8:30 a.m. to 4 p.m., OPP–2009–0538 in the subject line on allows EPA to establish an exemption Monday through Friday, excluding legal the first page of your submission. All from the requirement for a tolerance (the holidays. The Docket Facility telephone objections and requests for a hearing legal limit for a pesticide chemical number is (703) 305–5805. must be in writing, and must be residue in or on a food) only if EPA FOR FURTHER INFORMATION CONTACT: received by the Hearing Clerk on or determines that the exemption is ‘‘safe.’’ Denise Greenway, Biopesticides and before December 27, 2011. Addresses for Section 408(c)(2)(A)(ii) of FFDCA Pollution Prevention Division (7511P), mail and hand delivery of objections defines ‘‘safe’’ to mean that ‘‘there is a Office of Pesticide Programs, and hearing requests are provided in 40 reasonable certainty that no harm will Environmental Protection Agency, 1200 CFR 178.25(b). result from aggregate exposure to the Pennsylvania Ave., NW., Washington, In addition to filing an objection or pesticide chemical residue, including DC 20460–0001; telephone number: hearing request with the Hearing Clerk all anticipated dietary exposures and all (703) 308–8263; e-mail address: as described in 40 CFR part 178, please other exposures for which there is [email protected]. submit a copy of the filing that does not reliable information.’’ This includes contain any CBI for inclusion in the exposure through drinking water and in SUPPLEMENTARY INFORMATION: public docket. Information not marked residential settings but does not include I. General Information confidential pursuant to 40 CFR part 2 occupational exposure. Pursuant to may be disclosed publicly by EPA section 408(c)(2)(B) of FFDCA, in A. Does this action apply to me? without prior notice. Submit a copy of establishing or maintaining in effect an You may be potentially affected by your non-CBI objection or hearing exemption from the requirement of a this action if you are an agricultural request, identified by docket ID number tolerance, EPA must take into account producer, food manufacturer, or EPA–HQOPP–2009–0538, by one of the the factors set forth in section pesticide manufacturer. Potentially following methods: 408(b)(2)(C) of FFDCA, which require affected entities may include, but are • Federal eRulemaking Portal: http:// EPA to give special consideration to not limited to: www.regulations.gov. Follow the on-line exposure of infants and children to the • Crop production (NAICS code 111). instructions for submitting comments. pesticide chemical residue in • Animal production (NAICS code • Mail: OPP Regulatory Public Docket establishing a tolerance exemption and 112). (7502P), Environmental Protection to ‘‘ensure that there is a reasonable • Food manufacturing (NAICS code Agency, 1200 Pennsylvania Ave., NW., certainty that no harm will result to 311). Washington, DC 20460–0001. infants and children from aggregate

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exposure to the pesticide chemical many infections and human diseases potential exposure. Moreover, residue. * * *’’ (Refs. 7, 20, and 21). bacteriophage presence reported in Additionally, section 408(b)(2)(D) of Since 2005, bacteriophage have also foods and feeds ranges from 101 to 105 FFDCA requires that EPA consider been used in a pesticide product PFU/100 grams (g) of meat and up to ‘‘available information concerning the (Agriphage; EPA Reg. No. 67986–1), 107 PFU/100 g of cheese without any cumulative effects of [a particular without reported incidents, to control known harmful effects after pesticide’s] * * * residues and other particular bacterial diseases consumption of such materials. Finally, substances that have a common (Xanthomonas campestris pv. the petitioner noted that, during an mechanism of toxicity.’’ vesicatoria and Pseduomonas syringae extensive history of bacteriophage EPA performs a number of analyses to pv. tomato) of tomato and pepper. In laboratory and pesticidal usage, adverse determine the risks from aggregate conjunction with registration of the reports in the literature have not been exposure to pesticide residues. First, aforementioned pesticide product, EPA documented and episodes of EPA determines the toxicity of established an exemption from the hypersensitivity have not occurred. pesticides. Second, EPA examines requirement of a tolerance for residues Because bacteriophage are obligate exposure to the pesticide through food, of bacteriophage of Xanthomonas bacterial parasites and are not known to drinking water, and through other campestris pv. vesicatoria and infect humans, the only human health exposures that occur as a result of Pseudo´monas syringae pv. tomato in or risk associated with use of pesticide use in residential settings. on tomato and pepper (see the Federal bacteriophage of Clavibacter III. Toxicological Profile Register of December 28, 2005 (70 FR michiganensis subspecies 76704) (FRL–7753–6)). Much like the michiganensis as a bactericide is Consistent with section 408(b)(2)(D) previously registered bacteriophage, potential for acquisition and production of FFDCA, EPA has reviewed the OmniLytics, Inc. is proposing that of microbial toxins. This acquisition available scientific data and other bacteriophage of Clavibacter occurs through lysogeny, which is when relevant information in support of this michiganensis subspecies bacteriophage integrate into the genome action and considered its validity, michiganensis be applied as a pesticide of toxigenic bacterial host strains and completeness, and reliability and the for a very limited use-to control pick up and transmit those genetic traits relationship of this information to bacterial canker disease on tomato. to other bacteria that otherwise would human risk. EPA has also considered not produce toxic substances. Therefore, available information concerning the B. Microbial Pesticide Toxicology Data Requirements bacteriophage of Clavibacter variability of the sensitivities of major michiganensis subspecies identifiable subgroups of consumers, All mammalian toxicology data michiganensis that meet the following including infants and children. requirements supporting the request for two conditions do not present this risk A. Bacteriophage Overview an exemption from the requirement of a issue: tolerance for residues of bacteriophage 1. Bacteriophage produced in Bacteriophage, the most abundant of Clavibacter michiganensis subspecies Clavibacter michiganensis subspecies group of biological entities on the michiganensis in or on tomato have michiganensis, which has been planet, are naturally occurring viruses been fulfilled with submission of valid sequenced and determined to be an that are found in soil and water and in studies from the public literature (Refs. atoxigenic host bacteria, and association with plants and animals, 22 and 23). 2. Bacteriophage possessing the including humans (Refs. 1 through 8). As mentioned in Unit III.A., capability to lyse host bacteria, i.e., Bacteriophage are obligate parasites of bacteriophage are viruses that only completely destroy host cells during the bacteria, which means they attach to, infect specific bacteria, a basic fact viral production process, which infect, and reproduce in bacteria, and supported by both information precludes genetic transfer of possible are host-specific for bacteria, with presented in public literature and the toxins to other bacteria (Ref. 22). specific bacteriophage attacking only absence of reported adverse effects to one bacterial species and most humans even with commonplace IV. Aggregate Exposure frequently only one strain within a exposure to bacteriophage. Literature In examining aggregate exposure, bacterial species (Refs. 9 through 11). As submitted established that section 408 of FFDCA directs EPA to such, bacteriophage do not attack other bacteriophage have been used consider available information beneficial bacteria. In addition, there is historically and through modern times concerning exposures from the pesticide no evidence for bacteriophage infecting in lieu of or to assist the action of residue in food and all other non- any other life form, including humans, antibiotics. Clinical uses encompass all occupational exposures, including except bacteria (Refs. 7, 12, and 13). manner of administration from drinking water from ground water or Humans and other animals commonly injection/intravenous and surgical surface water and exposure through consume bacteriophage as they are wound applications to topical and pesticide use in gardens, lawns, or abundantly found in water, on plant ingestible preparations. There have been buildings (residential and other indoor surfaces, and in foods such as ground no reports of adverse effects from such uses). beef, pork sausage, chicken, oysters, administrations and in other similar cheese, mushrooms, and broccoli (Refs. cases using controlled scientific studies. A. Dietary Exposure 3, 4, and 14 through 19). In addition, Also submitted were literature citations 1. Food exposure. Published literature bacteriophage are common commensals showing that bacteriophage are common submitted by the petitioner, as well as of the human gut and likely play an and abundant in soils, are in a wide other publicly available literature, important role in regulating populations range of plant materials, and are indicate that bacteriophage are of various bacteria in the generally present in high numbers in the commonly associated with food and are gastrointestinal tract (Ref. 7). As cited in environment (e.g., up to 1010 plaque- therefore regularly consumed by public literature, bacteriophage have forming units (PFU) per liter may be humans. According to Ackermann been used for more than 80 years as found in non-polluted waters). Yet (1997), these viruses have been found in therapeutic agents with no ill effects again, no adverse effects to humans association with ‘‘buds, leaves, root and are active against bacteria that cause have been reported with these types of nodules (leguminous plants), roots,

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rotting fruit, seeds, stems, and straw; Demuth et al. (1993), ‘‘Bacteriophage of concern given the information crown gall tumors * * * healthy or * * * have been isolated from all types presented in Unit III. and Unit IV.A. diseased alfalfa, barley, beans, broccoli, of bacteria and from virtually any V. Cumulative Effects From Substances Brussels sprouts, buckwheat, clover, aquatic or terrestrial habitat where With a Common Mechanism of Toxicity cotton, cucumber, lucerne, mulberry, bacteria can exist. However, only in the oats, peas, peach trees, radish, rutabaga, last few years has it been recognized Section 408(b)(2)(D)(v) of FFDCA ryegrass, rye, timothy, tobacco, that viruses (phage) are extremely requires that, when considering whether tomatoes, [and] wheat’’ (Ref. 14). abundant in ocean and fresh water and to establish, modify, or revoke a Moreover, bacteriophage have been may exceed the concentration of tolerance exemption, EPA consider isolated from a wide range of food bacteria by up to 100-fold’’ (Ref. 3). ‘‘available information concerning the products, including ground beef, pork Other studies showed that cumulative effects of [a particular sausage, chicken, farmed freshwater bacteriophage of Erwinia carotovora and pesticide’s] * * * residues and other fish, common carp, marine fish, oil Erwinia ananas were isolated from substances that have a common sardines, raw skim milk, and cheese certain freshwater lakes in Florida and mechanism of toxicity.’’ (Refs. 15, 16, and 24 through 27). In fact, Texas (Ref. 4) and that coliphage were EPA has not found lytic bacteriophage several studies have suggested that present in some samples of drinking of Clavibacter michiganensis subspecies 100% of the ground beef and chicken water (Ref 28). michiganensis produced in Clavibacter meat sold at retail stores contain various When lytic bacteriophage of michiganensis subspecies levels of bacteriophage. For instance, Clavibacter michiganensis subspecies michiganensis to share a common bacteriophage were recovered from michiganensis produced in Clavibacter mechanism of toxicity with any other 100% of examined fresh chicken and michiganensis subspecies substances, and lytic bacteriophage of pork sausage samples and from 33% of michiganensis are applied to tomato as Clavibacter michiganensis subspecies delicatessen meat samples analyzed; the a bactericide in accordance with good michiganensis produced in Clavibacter levels ranged from 3.3 × 1010 to 4.4 × agricultural practices, exposure of michiganensis subspecies 1010 PFU/100 g of fresh chicken, up to humans to residues of these michiganensis do not appear to produce 3.5 × 1010 PFU/100 g of fresh pork, and bacteriophage in consumed drinking a toxic metabolite against the target pest. up to 2.7 × 1010 PFU/100 g of roast water may occur. Although lytic For the purposes of this tolerance turkey breast samples (Ref 16). Other bacteriophage of Clavibacter action, therefore, EPA has assumed that studies similarly showed the michiganensis subspecies lytic bacteriophage of Clavibacter widespread occurrence of bacteriophage michiganensis produced in Clavibacter michiganensis subspecies in certain foods: michiganensis subspecies michiganensis produced in Clavibacter a. 38 bacteriophage-host systems were michiganensis are not expected to reach michiganensis subspecies isolated from 22 of 45 refrigerated surface water because the proposed use michiganensis do not have a common products (Ref 27); patterns do not include direct mechanism of toxicity with other b. Bacteriophage infecting fire blight application to aquatic sites, it is possible substances. Therefore, section pathogen (Erwinia amylovora) were that this microbial pest control agent 408(b)(2)(D)(v) of the FFDCA does not isolated from apple, pear, and raspberry could make it into ground water. apply. For information regarding EPA’s tissues and from soil samples collected Nonetheless, if oral exposure to lytic efforts to determine which chemicals at sites displaying fire blight symptoms bacteriophage of Clavibacter have a common mechanism of toxicity (Ref 5); and michiganensis subspecies and to evaluate the cumulative effects of c. Shellfish, which filter large michiganensis produced in Clavibacter such chemicals, see EPA’s Web site at quantities of seawater, concentrated michiganensis subspecies http://www.epa.gov/pesticides/ both bacteria and bacteriophage (Ref 6). michiganensis occurs through cumulative. Because lytic bacteriophage of consumed drinking water (e.g., due to VI. Determination of Safety for United Clavibacter michiganensis subspecies surface water contamination by michiganensis produced in Clavibacter States (U.S.) Population, Infants and microbial pesticide spray drift or runoff Children michiganensis subspecies or contact with ground water), for the michiganensis are intended to be many reasons enumerated in Unit III. FFDCA section 408(b)(2)(C) provides applied to tomatoes, it is likely that and Unit IV.A.1., EPA concludes there that EPA shall assess the available dietary exposure will occur; however, is reasonable certainty that this type of information about consumption patterns no adverse effects are expected to occur. drinking water exposure, or any level of among infants and children, special Despite constant and direct food drinking water exposure for that matter, susceptibility of infants and children to exposure to bacteriophage (examples will not result in harm to humans. pesticide chemical residues, and the provided in the preceding paragraph cumulative effects on infants and and in Unit III.), no adverse effects to B. Other Non-Occupational Exposure children of the residues and other humans have been reported in publicly Dermal and inhalation non- substances with a common mechanism available literature. Indeed, no such occupational exposures to lytic of toxicity. In addition, FFDCA section effects are expected given that bacteriophage of Clavibacter 408(b)(2)(C) provides that EPA shall bacteriophage, including the one at michiganensis subspecies apply an additional tenfold (10×) margin issue in this action, are not capable of michiganensis produced in Clavibacter of safety for infants and children in the infecting eukaryotic cells and are host michiganensis subspecies case of threshold effects to account for specific, attacking only bacteria. michiganensis are not expected as all prenatal and postnatal toxicity and the 2. Drinking water exposure. Published proposed pesticide applications will completeness of the database on toxicity literature submitted by the petitioner, as take place in distinct agricultural and exposure unless EPA determines well as other publicly available settings. Even if dermal and inhalation that a different margin of safety will be literature, indicate that, much like food, non-occupational exposures were to safe for infants and children. This bacteriophage are commonly associated occur inadvertently (e.g., through spray additional margin of safety is commonly with water and are therefore regularly drift) or due to an eventual expansion of referred to as the Food Quality consumed by humans. According to use sites, such exposures would not be Protection Act Safety Factor. In

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applying this provision, EPA either requires that EPA explain the reasons 4. Eayre CG, Bartz JA, Concelmo DE. 1995. retains the default value of 10× or uses for departing from the Codex level. Bacteriophages of Erwinia carotovora a different additional safety factor when The Codex has not established a MRL and Erwinia ananas isolated from freshwater lakes. Plant Disease 79:801– reliable data available to EPA support for lytic bacteriophage of Clavibacter 804. the choice of a different factor. michiganensis subspecies 5. Schnabel EL, Jones AL. 2001. Isolation and As previously discussed in Unit III. michiganensis produced in Clavibacter characterization of five Erwinia and Unit IV., humans, including infants michiganensis subspecies amylovora bacteriophages and and children, have been exposed to michiganensis. assessment of phage resistance in strains of Erwinia amylovora. Applied and bacteriophage through food and water, C. Revisions to Requested Exemption Environmental Microbiology 67:59–64. where they are commonly found, and In its petition, the petitioner 6. Denis FA. 1975. Contamination of shellfish through decades of therapeutic use with with strains of Pseudomonas aeruginosa no known or reported adverse effects. requested generally that the Agency and specific bacteriophages. Canadian Based on this, as well as all the other issue an exemption from the Journal of Microbiology 21:1055–1057. reasons enumerated repeatedly in this requirement of a tolerance for residues 7. Merril CR, Scholl D, Adhya SL. 2003. The unit, EPA concludes that there is a of bacteriophage of Clavibacter prospect for bacteriophage therapy in reasonable certainty that no harm will michiganensis subspecies Western medicine. Nature 2:489–497. 8. Rohwer F. 2003. Global phage diversity. result to the U.S. population, including michiganensis in or on tomato. The petitioner’s supporting materials Cell 113:1–2. infants and children, from aggregate 9. Stocker BAD. 1955. Bacteriophage and exposure to the residues of lytic indicated that the actual pesticide that bacterial classification. Journal of bacteriophage of Clavibacter would be used would be safe because General Microbiology 12:375–381. michiganensis subspecies the bacteriophage were lytic and 10. Duckworth DH, Gulig PA. 2002. michiganensis produced in Clavibacter produced in Clavibacter michiganensis Bacteriophage: potential treatment for michiganensis subspecies subspecies michiganensis. The Agency bacterial infections. Biodrugs 16:57–62. believes both that these two conditions 11. Summers WC. 2001. Bacteriophage michiganensis. Such exposure includes therapy. Annual Review of Microbiology all anticipated dietary exposures and all are necessary to make the safety finding and the petitioner was only requesting 55:437–451. other exposures for which there is 12. Lorch A. 1999. Bacteriophage: an reliable information. EPA has arrived at a narrow exemption; therefore, the alternative to antibiotics? Biotechnology this conclusion because, considered Agency is modifying the tolerance and Development Monitor 39:14–17. collectively, the public literature exemption regulatory text to include 13. Petricciani JC, Hsu TC, Stock AD, Turner available on bacteriophage, including such criteria. JH, Wenger SL, Elisberg BL. 1978. Bacteriophages, vaccines, and people: an the one at issue in this action, do not VIII. Conclusions assessment of risk. Proceedings of the demonstrate toxic, pathogenic, and/or Society for Experimental Biology and infective potential to mammals. Thus, EPA concludes that there is a reasonable certainty that no harm will Medicine. 58:378–382. there are no threshold effects of concern 14. Ackermann H–W. 1997. Bacteriophage and, as a result, an additional margin of result to the U.S. population, including ecology. Pp. 335–339 in: ‘‘Progress in safety is not necessary. infants and children, from aggregate Microbial Ecology (Proceedings of exposure to residues of lytic Seventh International Symposium on VII. Other Considerations bacteriophage of Clavibacter Microbial Ecology)’’. Martins MT, Sato ¨ A. Analytical Enforcement Methodology michiganensis subspecies MIZ, Tiedje JM, Hagler LCN, Dobereiner michiganensis produced in Clavibacter J, Sanchez PS, eds. Brazilian Society for An analytical method is not required michiganensis subspecies Microbiology. michiganensis. Therefore, an exemption 15. Kennedy JE Jr, Wei CI, Oblinger JL. 1986. for enforcement purposes for the Methodology for enumeration of reasons stated above and because EPA is from the requirement of a tolerance is coliphages in foods. Applied and establishing an exemption from the established for residues of lytic Environmental Microbiology 51:956–962. requirement of a tolerance without any bacteriophage of Clavibacter 16. Kennedy JE Jr, Oblinger JL, Bitton G. numerical limitation. michiganensis subspecies 1984. Recovery of coliphages from michiganensis produced in Clavibacter chicken, pork sausage and delicatessen B. International Residue Limits michiganensis subspecies meats. Journal of Food Protection 47:623–626. In making its tolerance decisions, EPA michiganensis in or on tomato when applied as a bactericide in accordance 17. DePaola A, Motes ML, Chan AM, Suttle seeks to harmonize U.S. tolerances with CA. 1998. Phages infecting Vibrio international standards whenever with good agricultural practices. vulnificus are abundant and diverse in possible, consistent with U.S. food IX. References oysters (Crassostrea virginica) collected safety standards and agricultural from the Gulf of Mexico. Applied and practices. In this context, EPA considers 1. Keel C, Ucurum Z, Michaux P, Adrian M, Environmental Microbiology 64:346–351. Haas D. 2002. Deleterious impact of a the international maximum residue 18. Quiberoni A, Tremblay D, Ackermann H– virulent bacteriophage on survival and W, Moineau S, Reinheimer JA. 2006. limits (MRLs) established by the Codex biocontrol activity of Pseudomonas Diversity of Streptococcus thermophilus Alimentarius Commission (Codex), as fluorescens strain CHAO in natural soil. phages in a large-production cheese required by FFDCA section 408(b)(4). Molecular Plant-Microbe Interactions factory in Argentina. Journal of Dairy The Codex Alimentarius is a joint U.N. 15:567–576. Science 89:3791–3799. Food and Agriculture Organization/ 2. Liew KW, Alvarez AM. 1981. Biological 19. Guillaumes J, Houdeau G, Germain R, World Health Organization food and morphological characterization of Olivier JM. 1988. Improvement of the standards program, and it is recognized Xanthomonas campestris bacteriophages. biocontrol of Pseudomonas tolaasii using as an international food safety Phytopatholoy 71:269–273. bacteriophages associated with an 3. Demuth J, Neve H, Witzel K–P. 1993. standards-setting organization in trade antagonistic bacterium. Bulletin OEPP Direct electron microscopy study on the 18:77–82. agreements to which the United States morphological diversity of bacteriophage 20. Radetsky P. 1996. The good virus. is a party. EPA may establish a tolerance populations in Lake Plussse. Applied Discover 17:50–58. that is different from a Codex MRL; and Environmental Microbiology 21. Chanishvili N, Chanishvili T, Tediashvili however, FFDCA section 408(b)(4) 59:3378–3384. M, Barrow PA. 2001. Phages and their

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application against drug-resistant Populations (59 FR 7629, February 16, List of Subjects in 40 CFR Part 180 bacteria. Journal of Chemical Technology 1994). and Biotechnology 76:689–699. Environmental protection, 22. U.S. EPA. 2011. Bacteriophage of Since tolerances and exemptions that Administrative practice and procedure, Clavibacter michiganensis subsp. are established on the basis of a petition Agricultural commodities, Pesticides michiganensis—AgriPhage CMM. under section 408(d) of FFDCA, such as and pests, Reporting and recordkeeping Memorandum from J.V. Gagliardi, Ph.D. the tolerance exemption in this final requirements. to A. Gross dated June 30, 2011. rule, do not require the issuance of a Dated: September 30, 2011. 23. U.S. EPA. 2011. Bacteriophage of proposed rule, the requirements of the Steven Bradbury, Clavibacter michiganensis subspecies Regulatory Flexibility Act (RFA) (5 michiganensis Biopesticides Registration Director, Office of Pesticide Programs. U.S.C. 601 et seq.) do not apply. Action Document dated August 25, 2011 Therefore, 40 CFR chapter I is (available as ‘‘Supporting & Related This final rule directly regulates amended as follows: Material’’ with docket ID number EPA– growers, food processors, food handlers, HQ–OPP2009–0539 at http://www. and food retailers, not States or tribes. PART 180—[AMENDED] regulations.gov). As a result, this action does not alter the 24. Atterbury RJ, Connerton PL, Dodd CER, relationships or distribution of power ■ 1. The authority citation for part 180 Rees CED, Connerton IF. 2003. Isolation continues to read as follows: and characterization of Campylobacter and responsibilities established by bacteriophages from retail poultry. Congress in the preemption provisions Authority: 21 U.S.C. 321(q), 346a and 371. Applied and Environmental of section 408(n)(4) of FFDCA. As such, ■ 2. Section 180.1307 is added to Microbiology 69:4511–4518. EPA has determined that this action will subpart D to read as follows: 25. Gautier M, Rouault A, Sommer P, not have a substantial direct effect on Briandet R. 1995. Occurrence of States or tribal governments, on the § 180.1307 Bacteriophage of Clavibacter Propionibacterium freudenreichii relationship between the national michiganensis subspecies michiganensis; bacteriophages in swiss cheese. Applied exemption from the requirement of a and Environmental Microbiology government and the States or tribal tolerance. governments, or on the distribution of 61:2572–2576. An exemption from the requirement 26. Greer GG. 2005. Bacteriophage control of power and responsibilities among the of a tolerance is established for residues foodborne bacteria. Journal of Food various levels of government or between of lytic bacteriophage of Clavibacter Protection 68:1102–1111. the Federal Government and Indian michiganensis subspecies 27. Whitman PA, Marshall RT. 1971. tribes. Thus, EPA has determined that michiganensis produced in Clavibacter Isolation of psychrophilic Executive Order 13132, entitled bacteriophagehost systems from michiganensis subspecies refrigerated food products. Applied Federalism (64 FR 43255, August 10, michiganensis in or on tomato when Microbiology 22:220–223. 1999), and Executive Order 13175, applied as a bactericide in accordance 28. El-Abagy MM, Dutka BJ, Kamel M. 1988. entitled Consultation and Coordination with good agricultural practices. Incidence of coliphage in potable water with Indian Tribal Governments (65 FR supplies. Applied and Environmental 67249, November 9, 2000), do not apply [FR Doc. 2011–27042 Filed 10–25–11; 8:45 am] Microbiology 54:1632–1633. to this final rule. In addition, this final BILLING CODE 6560–50–P X. Statutory and Executive Order rule does not impose any enforceable Reviews duty or contain any unfunded mandate as described under Title II of the DEPARTMENT OF COMMERCE This final rule establishes a tolerance Unfunded Mandates Reform Act of 1995 National Oceanic and Atmospheric exemption under section 408(d) of (UMRA) (Pub. L. 104–4). FFDCA in response to a petition Administration This action does not involve any submitted to EPA. The Office of technical standards that would require Management and Budget (OMB) has 50 CFR Part 648 EPA consideration of voluntary exempted these types of actions from consensus standards pursuant to section [Docket No. 101119575–1554–02] review under Executive Order 12866, 12(d) of the National Technology entitled Regulatory Planning and RIN 0648–BA46 Transfer and Advancement Act of 1995 Review (58 FR 51735, October 4, 1993). (NTTAA), Public Law 104–113, section Fisheries of the Northeastern United Because this final rule has been 12(d) (15 U.S.C. 272 note). States; Monkfish; Framework exempted from review under Executive Adjustment 7 Order 12866, this final rule is not XI. Congressional Review Act subject to Executive Order 13211, AGENCY: National Marine Fisheries entitled Actions Concerning Regulations The Congressional Review Act, 5 Service (NMFS), National Oceanic and That Significantly Affect Energy Supply, U.S.C. 801 et seq., generally provides Atmospheric Administration (NOAA), Distribution, or Use (66 FR 28355, May that before a rule may take effect, the Commerce. 22, 2001), or Executive Order 13045, agency promulgating the rule must ACTION: Final rule. entitled Protection of Children from submit a rule report to each House of Environmental Health Risks and Safety the Congress and to the Comptroller SUMMARY: This final rule implements Risks (62 FR 19885, April 23, 1997). General of the United States. EPA will measures that were approved in This final rule does not contain any submit a report containing this rule and Framework Adjustment 7 to the information collections subject to OMB other required information to the U.S. Monkfish Fishery Management Plan. approval under the Paperwork Senate, the U.S. House of The New England Fishery Management Reduction Act (PRA), 44 U.S.C. 3501 et Representatives, and the Comptroller Council and Mid-Atlantic Fishery seq., nor does it require any special General of the United States prior to Management Council developed considerations under Executive Order publication of this final rule in the Framework Adjustment 7 to adjust the 12898, entitled Federal Actions to Federal Register. This final rule is not annual catch target for the Northern Address Environmental Justice in a ‘‘major rule’’ as defined by 5 U.S.C. Fishery Management Area to be Minority Populations and Low-Income 804(2). consistent with the most recent

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scientific advice regarding the FMPs contain annual catch limits (ACL) which is the purpose of this action. acceptable biological catch for to prevent overfishing, and measures to Because it was too late for the Councils monkfish. The New England Council’s ensure accountability. Among other to revise the Amendment 5 NFMA Scientific and Statistical Committee measures, Amendment 5 implemented measures in a timely fashion for fishing recommended a revision to the accountability measures (AMs) and year (FY) 2011, the Councils initiated acceptable biological catch based on ACLs, established biological and Framework 7 in September 2010 to information from the 50th Northeast management reference points and revise the ACT for the NFMA to be Regional Stock Assessment Review control rules, and specified an annual consistent with the most recent Committee. Framework Adjustment 7 catch target (ACT), days-at-sea (DAS), scientific advice. Leaving the current specifies a new days-at-sea allocation and trip limits for the SFMA. measures in place was considered an and trip limits for the Northern Fishery However, NMFS disapproved the acceptable interim measure because Management Area consistent with the proposed ACT for the NFMA in they are more conservative than new annual catch target, and establishes Amendment 5, and specification of DAS measures being implemented by this revised biomass reference points for the and trip limits to achieve that ACT. framework. This framework reconfirms Northern and Southern Fishery Amendment 5 proposed an ACT for the the SFMA ABC and associated Management Areas. NFMA of 10,750 mt, an allocation of 40 specifications and management DATES: This rule is effective October 26, DAS, and trip limits of 1,250 lb (567 kg) measures that were approved and 2011. tail wt. per DAS for Category A and C implemented through Amendment 5. vessels, and 800 lb (363 kg) tail wt. per ADDRESSES: An environmental This framework also updates the DAS for Category B and D vessels based assessment (EA) was prepared for biomass reference points in the on the 2007 Data Poor Working Group Framework Adjustment 7 (Framework Monkfish FMP to be consistent with the (DPWG) Assessment, which was 7) that describes the proposed action results of SARC 50. considered to be the best scientific and other alternatives considered, and information available at the time the Approved Measures provides an analysis of the impacts of Amendment 5 document was finalized 1. ACT the proposed measures and alternatives. by the Councils. Subsequent to the Copies of Framework 7, including the Councils taking final action on Framework 7 reduces the ACT for the EA and the Initial Regulatory Flexibility Amendment 5, a 2010 stock assessment NFMA to be consistent with the most Analysis (IRFA), are available on (50th Northeast Regional Stock recent scientific advice regarding the request from Paul J. Howard, Executive Assessment Review Committee (SARC monkfish NFMA ABC. The SSC Director, New England Fishery 50)) became available, which revealed recommended a reduction of the NFMA Management Council (Council), 50 new scientific information that, when ABC, based on SARC 50, to 7,592 mt. Water Street, Newburyport, MA 01950. included in the Councils’ interim The ACT being implemented in this These documents are also available acceptable biological catch (ABC) final rule is 86.5 percent of the ABC, or online at http://www.nefmc.org. approach, reduced the monkfish NFMA 6,567 mt. The ACT for the NFMA being FOR FURTHER INFORMATION CONTACT: ABC. In response to the new implemented is slightly higher than the Jason Berthiaume, Fisheries assessment, the New England Council’s current total allowable landings (TAL) Management Specialist, (978) 281–9177; Scientific and Statistical Committee for the NFMA. Any landings that occur fax: (978) 281–9135. (SSC) revisited its previous ABC between when Amendment 5 was SUPPLEMENTARY INFORMATION: recommendation at a meeting in August implemented on May 25, 2011, and the effective date of this final rule will be Background 2010. The SSC, after much discussion concerning the uncertainty with the counted against the ACT for the current The monkfish fishery is jointly new assessment and alternate methods FY and will be used to determine managed by the New England and Mid- for calculating ABC to account for this whether AMs are triggered. Atlantic Fishery Management Councils uncertainty, agreed to maintain the 2. Specification of DAS and Trip Limits (Councils), with the New England existing interim ABC approach it Council having the administrative lead. previously recommended. Using this The DAS allocations and trip limits The fishery extends from Maine to interim ABC approach, the SSC implemented in this action are North Carolina, and is divided into two recalculated the recommended ABC in calculated to achieve, but not go over, management units: The Northern Amendment 5 to incorporate the results the ACT. The trip limits for the NFMA Fishery Management Area (NFMA) and of SARC 50. Based on the recalculation for permit categories A and C will be the Southern Fishery Management Area of the ABCs, the SFMA’s ACT and 1,250 lb (567 kg) tail weight, and 600 lb (SFMA). Details on the background and associated DAS and trip limit measures (272 kg) tail weight for permit categories need for Amendment 5 and this were found to still be consistent with B and D, with all categories having an framework are contained in the the new ABC and ACL, and they were initial DAS allocation of 40 DAS. After amendment and the preambles for the approved by NMFS in Amendment 5. accounting for the Monkfish Research proposed (76 FR 11737; March 3, 2011) The recalculated ABC for the NFMA, on Set-Aside (RSA) program, the final and final rules (76 FR 30265; May 25, the other hand, was reduced from allocation is 39.3 DAS. 2011) for Amendment 5, and are not 10,750 mt to 7,592 mt, creating an 3. Revision to Biological Reference repeated here. inconsistency with the Amendment 5 Points Amendment 5, which was partially recommended ABC, ACT, and approved by NMFS on April 28, 2011, associated NFMA DAS and trip limit This action revises the biological was intended to bring the Monkfish measures. Based on this inconsistency, reference points in the Monkfish FMP to Fishery Management Plan (FMP) into NMFS disapproved the Amendment 5 be consistent with those recommended compliance with the requirements of the proposed specifications for the NFMA. by the SSC and SARC 50. In the SARC reauthorized Magnuson-Stevens Fishery This disapproval left current 50 report, the Southern Demersal Conservation and Management Act measures in effect for the NFMA until Working Group recommended an (Magnuson-Stevens Act). The superseded by a revised ACT and approach that would set biomass target Magnuson-Stevens Act requires that all specification of DAS and trip limits reference points based on the long-term

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projected biomass (B) corresponding to Moreover, the monkfish fishery is a A Summary of the Significant Issues the fishing mortality rate (F) at seasonal fishery, with the majority of Raised by the Public in Response to the maximum sustainable yield, or its the fishing activity occurring in the IRFA, a Summary of the Agency’s proxy, which for monkfish is Fmax. This spring and fall. Waiving the 30-day Assessment of Such Issues, and a recommendation, along with the delay in effectiveness of this rule will Statement of Any Changes Made in the recommendation to set B threshold allow vessels to immediately utilize the Proposed Rule as a Result of Such reference points at one-half of the target, additional DAS and trip limits for a Comments is consistent with National Standard 1. greater portion of the fall fishery than if No significant issues were raised by The Btarget under this recommendation is the current and more restrictive the public comment in response to the 52,930 mt for the NFMA and 74,490 mt regulations were in place for the 30-day IRFA. for the SFMA, and Bthreshold of 26,465 mt delay in effectiveness period. For purposes of the IRFA, all of the for the NFMA and 37,245 mt for the Specifically, some vessels have already entities (fishing vessels) affected by this SFMA. exhausted their DAS. Waiving the 30- action are considered small entities Comments and Responses day delayed effectiveness will provide under the Small Business more opportunities for these vessels to Administration size standards for small The public comment period for the fishing businesses (less than $4.0 proposed rule ended on September 6, continue fishing in the fall fishery. A delay in effectiveness could result in million in annual gross sales). Although 2011. One comment was received. multiple vessels may be owned by a Comment 1: The commenter unnecessary short-term adverse economic impacts to monkfish vessels single owner, tracking of ownership is suggested that all fishery quotas should not readily available to reliably be cut, based on the notion that coastal and associated shoreside facilities and fishing communities. Lastly, in the ascertain affiliated entities. Therefore, hypoxia was not considered when for purposes of this analysis, each recent past, the monkfish fishery has not developing Framework 7. permitted vessel is treated as a single been able to utilize its full ACT. It is Response: The commenter discussed small business entity. Consequently, coastal hypoxia at length, but did not expected that, with increased DAS there are no differential impacts explain how it relates to this rule and allocation and trip limits being between large and small entities. there is no known scientific basis for the implemented with this action, the Information on costs in the fishery is not commenter’s suggestion. The reasons monkfish fishery will be able to more readily available and individual vessel presented by the Council and NMFS for effectively utilize the ACT. Thus, a profitability cannot be determined recommending the monkfish measures delay in effectiveness would be contrary directly; therefore, expected changes in in this Framework are based on the best to achieving optimum yield in the gross revenues were used as a proxy for scientific information available, and are monkfish fishery, thereby undermining profitability. discussed in the preambles to both the the purpose of this rulemaking. This action does not introduce any proposed and final rule. The Office of Management and Budget new reporting, recordkeeping, or other Classification has determined that this rule is not compliance requirements. This final significant for purposes of Executive rule does not duplicate, overlap, or Pursuant to section 304(b)(1)(A) of the conflict with other Federal rules. Magnuson-Stevens Act, the NMFS Order 12866. Assistant Administrator has made a The New England Council prepared Description and Estimate of Number of determination that this final rule is an EA for Framework 7 to the Monkfish Small Entities to Which the Final Rule consistent with the Monkfish FMP, FMP that discusses the impact on the Will Apply Framework 7, other provisions of the environment as a result of this rule. A The management measures in Magnuson-Stevens Act, and other copy of the EA is available from the Framework 7 have the potential to affect applicable laws. Council (see ADDRESSES). all federally permitted monkfish vessels Pursuant to the APA, 5 U.S.C. NMFS, pursuant to section 604 of the that are actively participating in the 553(d)(1), NMFS finds good cause to Regulatory Flexibility Act (RFA), has fishery. As of September 2009, there waive the 30-day delay in effectiveness prepared a Final Regulatory Flexibility were 758 limited access monkfish of this rule. This final rule implements Analysis (FRFA) in support of permit holders and 2,156 open access measures that are less restrictive than permit holders. Of these, 573 limited Framework 7. The FRFA incorporates current regulations by increasing access permit holders (76 percent) the IRFA, relevant analyses contained in monkfish DAS allocations and trip actively participated in the monkfish the Framework and its EA, and a limits for permit category B and D fishery during FY 2008, while only 504 vessels in the NFMA. The increase in summary of the analyses completed to open access permit holders (23 percent) the DAS allocations and trip limits support the action in this rule. A copy actively participated in the fishery being implemented by this action are of the analyses done in the Framework during that time period. Thus, this measures that were intended to be and EA is available from the Councils action is expected to impact at least implemented with Amendment 5 on (see ADDRESSES). A summary of the 1,077 currently active monkfish permit May 1, 2011 (start of the 2011 FY). IRFA was published in the proposed holders, but have no impact on open However, while Amendment 5 was rule for this action and is not repeated access permit holders. being finalized, new scientific here. A description of why this action The majority of the measures in this information became available which was considered, the objectives of, and action are specific to the NFMA, and, resulted in the disapproval of the the legal basis for this rule is contained thus, will apply to vessels that fish measures in Amendment 5 that modify in the preamble to the proposed rule primarily in the NFMA. Of the 546 the NFMA DAS and trip limits. and this final rule and is not repeated vessels that participated in the fishery Therefore, this action was adopted to here. in FY 2009, 232 reported fishing in the implement less restrictive DAS and trip NFMA. Of the 232, 115 reported fishing limits that were disapproved in only in the NFMA and 171 in both the Amendment 5. NFMA and SFMA. Accordingly, this

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action will most likely impact the rule, and shall designate such otherwise specified under this subpart approximately 232 vessels that fish in publications as ‘‘small entity F. the NFMA. compliance guides.’’ The agency shall * * * * * explain the actions a small entity is Description of the Steps the Agency Has ■ 3. In § 648.94, revise paragraph required to take to comply with a rule Taken To Minimize the Significant (b)(1)(ii) to read as follows: Economic Impact on Small Entities or group of rules. As part of this Consistent With the Stated Objectives of rulemaking process, a letter to permit § 648.94 Monkfish possession and landing restrictions. Applicable Statutes holders that also serves as small entity compliance guide (the guide) was * * * * * All of the management measures prepared. Copies of this final rule are (b) * * * contained in Framework 7 and available from the NMFS Northeast (1) * * * implemented in this final rule either Regional Office, and the guide, i.e., (ii) Category B and D vessels. Limited provide for increased fishing permit holder letter, will be sent to all access monkfish Category B and D opportunities or increased efficiency holders of permits for the monkfish vessels that fish under a monkfish DAS and profitability. This action increases fishery. The guide and this final rule exclusively in the NFMA may land up fishing opportunities by raising the will be available upon request, and to 600 lb (272 kg) tail weight or 1,746 overall annual DAS allocations for all posted on the Northeast Regional lb (792 kg) whole weight of monkfish limited access monkfish vessels from 31 Office’s Web site at http:// (gutted) per DAS (or any prorated DAS to 40 DAS, prior to adjusting the www.nero.noaa.gov. combination of tail weight and whole DAS allocation for the Monkfish RSA weight based on the conversion factor program. Although the DAS usage cap List of Subjects in 50 CFR Part 648 for tail weight to whole weight of 2.91). for the SFMA remains at 28 DAS, the Fisheries, Fishing, Recordkeeping and For every 1 lb (0.45 kg) of tail only NFMA DAS increase provides reporting requirements. weight landed, the vessel may land up additional fishing opportunities for to 1.91 lb (0.87 kg) of monkfish heads vessels that fish primarily in the NFMA, Dated: October 19, 2011. only, as described in paragraph (a) of vessels that fish in both the NFMA and Samuel D. Rauch III, this section. SFMA, and vessels that fish primarily in Deputy Assistant Administrator for the SFMA that may also wish to pursue Regulatory Programs, National Marine * * * * * Fisheries Service. fishing opportunities in the NFMA. [FR Doc. 2011–27723 Filed 10–25–11; 8:45 am] Previously, vessels that fished primarily For the reasons set out in the BILLING CODE 3510–22–P in the SFMA who utilized the maximum preamble, 50 CFR part 648 is amended 28 SFMA DAS would otherwise have 3 as follows: DAS remaining that could only be used DEPARTMENT OF COMMERCE in the NFMA. With this action, these PART 648—FISHERIES OF THE vessels will now have 12 DAS available NORTHEASTERN UNITED STATES National Oceanic and Atmospheric for use in the NFMA prior to adjusting Administration the DAS allocation for the Monkfish ■ 1. The authority citation for part 648 RSA program, which may provide continues to read as follows: 50 CFR Part 679 opportunities for these vessels to also Authority: 16 U.S.C. 1801 et seq. [Docket No. 101126521–0640–02] participate in the NFMA fishery as well ■ 2. In § 648.92, revise paragraph as the SFMA fishery. (b)(1)(i) to read as follows: RIN 0648–XA791 In regards to increased efficiency and profitability, this action increases the § 648.92 Effort-control program for Fisheries of the Exclusive Economic NFMA ACT. Assuming that prices do monkfish limited access vessels. Zone Off Alaska; Pacific Cod by not decrease due to higher landings, a * * * * * Catcher/Processors Using Pot Gear in higher ACT would result in higher (b) * * * the Bering Sea and Aleutian Islands monkfish revenues and thus additional (1) * * * Management Area (i) General provision. Limited access benefits to vessels. However, this is only AGENCY: National Marine Fisheries monkfish permit holders shall be the case if the higher allocation is Service (NMFS), National Oceanic and allocated 40 monkfish DAS each fishing actually landed. To achieve the higher Atmospheric Administration (NOAA), year to be used in accordance with the ACT, this action also raises the trip Commerce. limits for permit Category B and D restrictions of this paragraph (b), unless ACTION: Temporary rule; closure. vessels from 470 lb (213 kg) to 600 lb otherwise restricted by paragraph (272 kg) tail weight. This increase (b)(1)(ii) of this section or modified by SUMMARY: NMFS is prohibiting directed allows Category B and D vessels fishing § 648.96(b)(3), or unless the vessel is fishing for Pacific cod by pot catcher/ in the NFMA to land more monkfish enrolled in the Offshore Fishery processors in the Bering Sea and than previously authorized, which Program in the SFMA, as specified in Aleutian Islands management area could increase vessel efficiency and paragraph (b)(1)(iv) of this section. The (BSAI). This action is necessary to profitability, as well as reducing any annual allocation of monkfish DAS shall prevent exceeding the 2011 Pacific cod regulatory discards. be reduced by the amount calculated in total allowable catch (TAC) specified for paragraph (b)(1)(v) of this section for the pot catcher/processors in the BSAI. Small Entity Compliance Guide research DAS set-aside. Limited access Section 212 of the Small Business NE multispecies and limited access sea DATES: Effective 1200 hrs, Alaska local Regulatory Enforcement Fairness Act of scallop permit holders who also possess time (A.l.t.), October 23, 2011, through 1996 states that, for each rule or group a limited access monkfish permit must 1200 hrs, A.l.t., December 31, 2011. of related rules for which an agency is use a NE multispecies or sea scallop FOR FURTHER INFORMATION CONTACT: required to prepare a FRFA, the agency DAS concurrently with each monkfish Obren Davis, 907–586–7228. shall publish one or more guides to DAS utilized, except as provided in SUPPLEMENTARY INFORMATION: NMFS assist small entities in complying with paragraph (b)(2) of this section, unless manages the groundfish fishery in the

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BSAI exclusive economic zone Authority: 16 U.S.C. 1801 et seq. The 2011 Pacific cod TAC according to the Fishery Management Dated: October 21, 2011. apportioned to vessels harvesting Plan for Groundfish of the Bering Sea Alan D. Risenhoover, Pacific cod for processing by the inshore and Aleutian Islands Management Area Acting Director, Office of Sustainable component of the Western Regulatory (FMP) prepared by the North Pacific Fisheries, National Marine Fisheries Service. Area of the GOA is 20,507 metric tons Fishery Management Council under [FR Doc. 2011–27714 Filed 10–21–11; 4:15 pm] (mt), as established by the final 2011 authority of the Magnuson-Stevens BILLING CODE 3510–22–P and 2012 harvest specifications for Fishery Conservation and Management groundfish of the GOA (76 FR 11111, Act. Regulations governing fishing by March 1, 2011). U.S. vessels in accordance with the FMP DEPARTMENT OF COMMERCE appear at subpart H of 50 CFR part 600 In accordance with § 679.20(d)(1)(i), and 50 CFR part 679. National Oceanic and Atmospheric the Administrator, Alaska Region, The 2011 Pacific cod TAC allocated as Administration NMFS (Regional Administrator) has a directed fishing allowance to pot determined that the 2011 Pacific cod catcher/processors in the BSAI is 3,041 50 CFR Part 679 TAC apportioned to vessels harvesting metric tons as established by the final Pacific cod for processing by the inshore 2011 and 2012 harvest specifications for [Docket No. 101126522–0640–02] component of the Western Regulatory groundfish in the BSAI (76 FR 11139, RIN 0648–XA790 Area of the GOA will soon be reached. March 1, 2011). Therefore, the Regional Administrator is In accordance with § 679.20(d)(1)(iii), Fisheries of the Exclusive Economic establishing a directed fishing the Administrator, Alaska Region, Zone Off Alaska; Pacific Cod by allowance of 20,257 mt, and is setting NMFS, has determined that the 2011 Vessels Harvesting Pacific Cod for aside the remaining 250 mt as bycatch Pacific cod TAC allocated as a directed Processing by the Inshore Component to support other anticipated groundfish fishing allowance to pot catcher/ in the Western Regulatory Area of the fisheries. In accordance with processors in the BSAI has been Gulf of Alaska reached. Consequently, NMFS is § 679.20(d)(1)(iii), the Regional prohibiting directed fishing for Pacific AGENCY: National Marine Fisheries Administrator finds that this directed cod by pot catcher/processors in the Service (NMFS), National Oceanic and fishing allowance has been reached. BSAI. Atmospheric Administration (NOAA), Consequently, NMFS is prohibiting After the effective date of this closure Commerce. directed fishing for Pacific cod by the maximum retainable amounts at ACTION: Temporary rule; closure. vessels harvesting Pacific cod for § 679.20(e) and (f) apply at any time processing by the inshore component in during a trip. SUMMARY: NMFS is prohibiting directed the Western Regulatory Area of the fishing for Pacific cod by vessels GOA. Classification harvesting Pacific cod for processing by This action responds to the best the inshore component in the Western After the effective date of this closure available information recently obtained Regulatory Area of the Gulf of Alaska the maximum retainable amounts at from the fishery. The Assistant (GOA). This action is necessary to § 679.20(e) and (f) apply at any time Administrator for Fisheries, NOAA prevent exceeding the 2011 Pacific total during a trip. (AA), finds good cause to waive the allowable catch (TAC) apportioned to Classification requirement to provide prior notice and vessels harvesting Pacific cod for opportunity for public comment processing by the inshore component of This action responds to the best pursuant to the authority set forth at 5 the Western Regulatory Area of the available information recently obtained U.S.C. 553(b)(B) as such requirement is GOA. from the fishery. The Assistant impracticable and contrary to the public DATES: Effective 1200 hrs, Alaska local Administrator for Fisheries, NOAA interest. This requirement is time (A.l.t.), October 26, 2011, through (AA), finds good cause to waive the impracticable and contrary to the public 2400 hrs, A.l.t., December 31, 2011. requirement to provide prior notice and interest as it would prevent NMFS from FOR FURTHER INFORMATION CONTACT: Josh opportunity for public comment responding to the most recent fisheries pursuant to the authority set forth at 5 data in a timely fashion and would Keaton, 907–586–7228. U.S.C. 553(b)(B) as such requirement is delay the closure of Pacific cod by pot SUPPLEMENTARY INFORMATION: NMFS impracticable and contrary to the public catcher/processors in the BSAI. NMFS manages the groundfish fishery in the was unable to publish a notice GOA exclusive economic zone interest. This requirement is providing time for public comment according to the Fishery Management impracticable and contrary to the public because the most recent, relevant data Plan for Groundfish of the Gulf of interest as it would prevent NMFS from only became available as of October 20, Alaska (FMP) prepared by the North responding to the most recent fisheries 2011. Pacific Fishery Management Council data in a timely fashion and would The AA also finds good cause to under authority of the Magnuson- delay the directed fishing closure of waive the 30-day delay in the effective Stevens Fishery Conservation and Pacific cod by vessels harvesting Pacific date of this action under 5 U.S.C. Management Act. Regulations governing cod for processing by the inshore 553(d)(3). This finding is based upon fishing by U.S. vessels in accordance component in the Western Regulatory the reasons provided above for waiver of with the FMP appear at subpart H of 50 Area of the GOA. NMFS was unable to prior notice and opportunity for public CFR part 600 and 50 CFR part 679. publish a notice providing time for comment. Regulations governing sideboard public comment because the most This action is required by § 679.20 protections for GOA groundfish recent, relevant data only became and is exempt from review under fisheries appear at subpart B of 50 CFR available as of October 20, 2011. Executive Order 12866. part 680.

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The AA also finds good cause to prior notice and opportunity for public Dated: October 21, 2011. waive the 30-day delay in the effective comment. Alan D. Risenhoover, date of this action under 5 U.S.C. This action is required by § 679.20 Director, Office of Sustainable Fisheries, 553(d)(3). This finding is based upon and is exempt from review under National Marine Fisheries Service. the reasons provided above for waiver of Executive Order 12866. [FR Doc. 2011–27715 Filed 10–21–11; 4:15 pm] Authority: 16 U.S.C. 1801 et seq. BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 76, No. 207

Wednesday, October 26, 2011

This section of the FEDERAL REGISTER • Mail: U.S. Department of comments on the overall regulatory, contains notices to the public of the proposed Transportation, Docket Operations, economic, environmental, and energy issuance of rules and regulations. The M–30, West Building Ground Floor, aspects of this proposed AD. We will purpose of these notices is to give interested Room W12–140, 1200 New Jersey consider all comments received by the persons an opportunity to participate in the Avenue, SE., Washington, DC 20590. closing date and may amend this rule making prior to the adoption of the final • rules. Hand Delivery: U.S. Department of proposed AD based on those comments. Transportation, Docket Operations, We will post all comments we M–30, West Building Ground Floor, receive, without change, to http:// DEPARTMENT OF TRANSPORTATION Room W12–140, 1200 New Jersey www.regulations.gov, including any Avenue, SE., Washington, DC, between personal information you provide. We Federal Aviation Administration 9 a.m. and will also post a report summarizing each 5 p.m., Monday through Friday, except substantive verbal contact we receive 14 CFR Part 39 Federal holidays. about this proposed AD. For service information identified in [Docket No. FAA–2011–1092; Directorate Discussion Identifier 2011–NM–111–AD] this proposed AD, contact Bombardier, Inc., 400 Coˆte-Vertu Road West, Dorval, The Transport Canada Civil Aviation RIN 2120–AA64 Que´bec H4S 1Y9, Canada; telephone (TCCA), which is the aviation authority 514–855–5000; fax 514–855–7401; for Canada, has issued Canadian Airworthiness Directives; Bombardier, e-mail [email protected]; Airworthiness Directive CF–2011–10, Inc. Model BD–700–1A10 and BD–700– Internet http://www.bombardier.com. dated May 13, 2011 (referred to after 1A11 Airplanes You may review copies of the this as ‘‘the MCAI’’), to correct an unsafe AGENCY: Federal Aviation referenced service information at the condition for the specified products. Administration (FAA), DOT. FAA, Transport Airplane Directorate, The MCAI states: ACTION: Notice of proposed rulemaking 1601 Lind Avenue, SW., Renton, During a routine inspection, deformation (NPRM). Washington. For information on the was found at the neck of the pressure availability of this material at the FAA, regulator body on the oxygen Cylinder and SUMMARY: We propose to adopt a new call 425–227–1221. Regulator Assemblies (CRA). airworthiness directive (AD) for the An investigation by the vendor, Avox Examining the AD Docket Systems Inc., revealed that the deformation products listed above. This proposed You may examine the AD docket on was attributed to two (2) batches of raw AD results from mandatory continuing material that did not meet the required airworthiness information (MCAI) the Internet at http:// tensile strength. This may cause elongation of originated by an aviation authority of www.regulations.gov; or in person at the the pressure regulator neck, which could another country to identify and correct Docket Operations office between 9 a.m. result in rupture of the oxygen cylinder, and an unsafe condition on an aviation and 5 p.m., Monday through Friday, in the case of cabin depressurization, oxygen product. The MCAI describes the unsafe except Federal holidays. The AD docket not being available when required. condition as: contains this proposed AD, the This [Canadian] directive mandates [an regulatory evaluation, any comments inspection to determine if a certain oxygen During a routine inspection, deformation was received, and other information. The CRA is installed and] the replacement of found at the neck of the pressure regulator oxygen CRAs containing pressure regulators, body on the oxygen Cylinder and Regulator street address for the Docket Operations part number (P/N) 806370–06, that do not Assemblies (CRA). office (telephone (800) 647–5527) is in meet the required material properties. An investigation by the vendor * * * the ADDRESSES section. Comments will revealed that the deformation was attributed be available in the AD docket shortly You may obtain further information by to two (2) batches of raw material that did not after receipt. examining the MCAI in the AD docket. meet the required tensile strength. This may FOR FURTHER INFORMATION CONTACT: Relevant Service Information cause elongation of the pressure regulator neck, which could result in rupture of the Cesar Gomez, Aerospace Engineer, Bombardier has issued Service oxygen cylinder, and in the case of cabin Airframe and Mechanical Systems Bulletins 700–1A11–35–010 (for Model depressurization, oxygen not being available Branch, ANE–171, FAA, New York BD–700–1A11 airplanes) and 700–35– when required. Aircraft Certification Office, 1600 011 (for Model BD–700–1A10 * * * * * Stewart Avenue, Suite 410, Westbury, airplanes), both Revision 01, both dated New York 11590; telephone (516) 228– February 1, 2011. The actions described The proposed AD would require actions 7318; fax (516) 794–5531. that are intended to address the unsafe in this service information are intended SUPPLEMENTARY INFORMATION: condition described in the MCAI. to correct the unsafe condition identified in the MCAI. DATES: We must receive comments on Comments Invited this proposed AD by December 12, We invite you to send any written FAA’s Determination and Requirements 2011. relevant data, views, or arguments about of This Proposed AD ADDRESSES: You may send comments by this proposed AD. Send your comments This product has been approved by any of the following methods: to an address listed under the the aviation authority of another • Federal eRulemaking Portal: Go to ADDRESSES section. Include ‘‘Docket No. country, and is approved for operation http://www.regulations.gov. Follow the FAA–2011–1092; Directorate Identifier in the United States. Pursuant to our instructions for submitting comments. 2011–NM–111–AD’’ at the beginning of bilateral agreement with the State of • Fax: (202) 493–2251. your comments. We specifically invite Design Authority, we have been notified

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of the unsafe condition described in the safety in air commerce. This regulation numbers (S/N) 9002 through 9126 inclusive, MCAI and service information is within the scope of that authority 9128 through 9312 inclusive, 9314 through referenced above. We are proposing this because it addresses an unsafe condition 9322 inclusive, 9324 through 9335 inclusive, AD because we evaluated all pertinent that is likely to exist or develop on 9337, 9338, 9340, 9341, 9343, 9344, 9346, 9347, 9350, 9353, 9355, 9356, 9358, 9361, information and determined an unsafe products identified in this rulemaking 9365, 9372, 9374, 9384, 9402, 9403, and condition exists and is likely to exist or action. subsequent. develop on other products of the same Regulatory Findings type design. Subject We determined that this proposed AD (d) Air Transport Association (ATA) of Differences Between This AD and the would not have federalism implications America Code 35: Oxygen. MCAI or Service Information under Executive Order 13132. This Reason We have reviewed the MCAI and proposed AD would not have a (e) The mandatory continuing related service information and, in substantial direct effect on the States, on airworthiness information (MCAI) states: general, agree with their substance. But the relationship between the national During a routine inspection, deformation we might have found it necessary to use Government and the States, or on the was found at the neck of the pressure different words from those in the MCAI distribution of power and regulator body on the oxygen Cylinder and to ensure the AD is clear for U.S. responsibilities among the various Regulator Assemblies (CRA). operators and is enforceable. In making levels of government. An investigation by the vendor * * * these changes, we do not intend to differ For the reasons discussed above, I revealed that the deformation was attributed substantively from the information certify this proposed regulation: to two (2) batches of raw material that did not provided in the MCAI and related 1. Is not a ‘‘significant regulatory meet the required tensile strength. This may service information. action’’ under Executive Order 12866; cause elongation of the pressure regulator We might also have proposed 2. Is not a ‘‘significant rule’’ under the neck, which could result in rupture of the oxygen cylinder, and in the case of cabin different actions in this AD from those DOT Regulatory Policies and Procedures depressurization, oxygen not being available in the MCAI in order to follow FAA (44 FR 11034, February 26, 1979); and when required. policies. Any such differences are 3. Will not have a significant * * * * * highlighted in a NOTE within the economic impact, positive or negative, proposed AD. on a substantial number of small entities Compliance under the criteria of the Regulatory Costs of Compliance (f) You are responsible for having the Flexibility Act. actions required by this AD performed within Based on the service information, we We prepared a regulatory evaluation the compliance times specified, unless the estimate that this proposed AD would of the estimated costs to comply with actions have already been done. affect about 39 products of U.S. registry. this proposed AD and placed it in the Actions We also estimate that it would take AD docket. (g) For airplanes having S/N 9002 through about 10 work-hours per product to List of Subjects in 14 CFR Part 39 9126 inclusive, 9128 through 9312 inclusive, comply with the basic requirements of 9314 through 9322 inclusive, 9324 through this proposed AD. The average labor Air transportation, Aircraft, Aviation 9335 inclusive, 9337, 9338, 9340, 9341, 9343, rate is $85 per work-hour. Required safety, Incorporation by reference, 9344, 9346, 9347, 9350, 9353, 9355, 9356, parts would cost about $0 per product. Safety. 9358, 9361, 9365, 9372, 9374, 9384, 9402, Where the service information lists The Proposed Amendment 9403: Within 7 months after the effective date required parts costs that are covered of this AD, do an inspection of oxygen under warranty, we have assumed that Accordingly, under the authority pressure regulators having P/N 806370–06 to there will be no charge for these parts. delegated to me by the Administrator, determine if the serial number is listed in Table 2 of the Accomplishment Instructions As we do not control warranty coverage the FAA proposes to amend 14 CFR part 39 as follows: of Bombardier Service Bulletin 700–35–011 for affected parties, some parties may (for Model BD–700–1A10 airplanes) or 700– incur costs higher than estimated here. PART 39—AIRWORTHINESS 1A11–35–010 (for Model BD–700–1A11 Based on these figures, we estimate the DIRECTIVES airplanes), both Revision 01, both dated cost of the proposed AD on U.S. February 1, 2011. operators to be $33,150, or $850 per 1. The authority citation for part 39 (1) If the serial number of the pressure product. continues to read as follows: regulator having P/N 806370–06 is listed in Table 2 of the Accomplishment Instructions Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. of Bombardier Service Bulletin 700–35–011 (for Model BD–700–1A10 airplanes) or 700– Title 49 of the United States Code § 39.13 [Amended] specifies the FAA’s authority to issue 1A11–35–010 (for Model BD–700–1A11 2. The FAA amends § 39.13 by adding airplanes), both Revision 01, both dated rules on aviation safety. Subtitle I, the following new AD: February 1, 2011, within 7 months after the section 106, describes the authority of effective date of this AD, replace the affected the FAA Administrator. ‘‘Subtitle VII: Bombardier, Inc.: Docket No. FAA–2011– 1092; Directorate Identifier 2011–NM– oxygen CRA, in accordance with paragraph Aviation Programs,’’ describes in more 111–AD. 2.C. of the Accomplishment Instructions of detail the scope of the Agency’s Bombardier Service Bulletin 700–35–011 (for authority. Comments Due Date Model BD–700–1A10 airplanes) or 700– We are issuing this rulemaking under (a) We must receive comments by 1A11–35–010 (for Model BD–700–1A11 the authority described in ‘‘Subtitle VII, December 12, 2011. airplanes), both Revision 01, both dated February 1, 2011. Part A, Subpart III, Section 44701: Affected ADs General requirements.’’ Under that (2) If the serial number of the oxygen (b) None. pressure regulator having P/N 806370–06 is section, Congress charges the FAA with not listed in Table 2 of the Accomplishment promoting safe flight of civil aircraft in Applicability Instructions of Bombardier Service Bulletin air commerce by prescribing regulations (c) This AD applies to Bombardier, Inc. 700–35–011 (for Model BD–700–1A10 for practices, methods, and procedures Model BD–700–1A10 and BD–700–1A11 airplanes) or 700–1A11–35–010 (for Model the Administrator finds necessary for airplanes, certificated in any category, serial BD–700–1A11 airplanes), both Revision 01,

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both dated February 1, 2011, no further 010, Revision 01, dated February 1, 2011; for For service information identified in action is required by this paragraph. related information. this proposed AD, contact Boeing Commercial Airplanes, Attention: Data Parts Installation Issued in Renton, Washington, on October (h) For all airplanes: As of the effective 17, 2011. & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124– date of this AD, no person may install an Kalene C. Yanamura, 2207; telephone 206–544–5000, oxygen pressure regulator (P/N 806370–06) Acting Manager, Transport Airplane having any serial number listed in Table 2 of extension 1; fax 206–766–5680; e-mail Directorate, Aircraft Certification Service. the Accomplishment Instructions of [email protected]; Internet Bombardier Service Bulletin 700–35–011 (for [FR Doc. 2011–27650 Filed 10–25–11; 8:45 am] https://www.myboeingfleet.com. You Model BD–700–1A10 airplanes) or 700– BILLING CODE 4910–13–P may review copies of the referenced 1A11–35–010 (for Model BD–700–1A11 service information at the FAA, airplanes), both Revision 01, both dated Transport Airplane Directorate, 1601 February 1, 2011, on any airplane, unless a DEPARTMENT OF TRANSPORTATION suffix ‘‘-A’’ is beside the serial number. Lind Avenue SW., Renton, Washington. Federal Aviation Administration For information on the availability of FAA AD Differences this material at the FAA, call 425–227– Note 1: This AD differs from the MCAI 14 CFR Part 39 1221. and/or service information as follows: Examining the AD Docket The MCAI applicability specifies only [Docket No. FAA–2011–1094; Directorate airplanes having certain serial numbers and Identifier 2011–NM–070–AD] You may examine the AD docket on prohibits installation of the affected part on RIN 2120–AA64 the Internet at http://www.regulations. those airplanes. Because the affected part gov; or in person at the Docket could be rotated onto any of the Model BD– Airworthiness Directives; The Boeing Management Facility between 9 a.m. 700–1A10 and BD–700–1A11 airplanes, this Company Airplanes and 5 p.m., Monday through Friday, AD applies to S/N 9002 through 9126 except Federal holidays. The AD docket inclusive, 9128 through 9312 inclusive, 9314 AGENCY: Federal Aviation contains this proposed AD, the through 9322 inclusive, 9324 through 9335 Administration (FAA), DOT. inclusive, 9337, 9338, 9340, 9341, 9343, regulatory evaluation, any comments 9344, 9346, 9347, 9350, 9353, 9355, 9356, ACTION: Notice of proposed rulemaking received, and other information. The 9358, 9361, 9365, 9372, 9374, 9384, 9402, (NPRM). street address for the Docket Office 9403, and subsequent. This has been (phone: 800–647–5527) is in the SUMMARY: We propose to adopt a new coordinated with the Transport Canada Civil ADDRESSES section. Comments will be airworthiness directive (AD) for certain Aviation (TCCA). available in the AD docket shortly after The Boeing Company Model 757 receipt. Other FAA AD Provisions airplanes. This proposed AD would FOR FURTHER INFORMATION CONTACT: require inspecting for discrepancies and (i) The following provisions also apply to Kevin Nguyen, Aerospace Engineer, this AD: insufficient coverage of the secondary Propulsion Branch, ANM–140S, FAA, (1) Alternative Methods of Compliance fuel barrier, determining the thickness Seattle Aircraft Certification Office (AMOCs): The Manager, New York Aircraft of the secondary fuel barrier, and (ACO), 1601 Lind Avenue, SW., Renton, Certification Office (ACO), ANE–170, FAA, corrective actions if necessary. This Washington 98057–3356; phone: 425– has the authority to approve AMOCs for this proposed AD was prompted by reports AD, if requested using the procedures found 917–6501; fax: 425–917–6590; e-mail: that inspections of the wing center in 14 CFR 39.19. In accordance with 14 CFR [email protected]. section revealed defective, misapplied, 39.19, send your request to your principal SUPPLEMENTARY INFORMATION: inspector or local Flight Standards District or missing secondary fuel vapor barrier Office, as appropriate. If sending information on the center fuel tank. We are Comments Invited directly to the ACO, send it to Attn: Program proposing this AD to detect and correct We invite you to send any written Manager, Continuing Operational Safety, defective surfaces and insufficient relevant data, views, or arguments about FAA, New York ACO, 1600 Stewart Avenue, thickness of secondary fuel barrier, Suite 410, Westbury, New York 11590; this proposal. Send your comments to which could allow fuel leaks or fumes an address listed under the ADDRESSES telephone 516–228–7300; fax 516–794–5531. into the pressurized cabin, and allow Before using any approved AMOC, notify section. Include ‘‘Docket No. FAA– your appropriate principal inspector, or fuel or fuel vapors to come in contact 2011–1094; Directorate Identifier 2011– lacking a principal inspector, the manager of with an ignition source, which could NM–070–AD’’ at the beginning of your the local flight standards district office/ result in a fire or an explosion. comments. We specifically invite certificate holding district office. The AMOC DATES: We must receive comments on comments on the overall regulatory, approval letter must specifically reference this proposed AD by December 12, economic, environmental, and energy this AD. 2011. (2) Airworthy Product: For any requirement aspects of this proposed AD. We will in this AD to obtain corrective actions from ADDRESSES: You may send comments by consider all comments received by the a manufacturer or other source, use these any of the following methods: closing date and may amend this actions if they are FAA-approved. Corrective • Federal eRulemaking Portal: Go to proposed AD because of those actions are considered FAA-approved if they http://www.regulations.gov. Follow the comments. are approved by the State of Design Authority instructions for submitting comments. We will post all comments we (or their delegated agent). You are required • Fax: 202–493–2251. receive, without change, to http://www. to assure the product is airworthy before it • Mail: U.S. Department of regulations.gov, including any personal is returned to service. Transportation, Docket Operations, information you provide. We will also Related Information M–30, West Building Ground Floor, post a report summarizing each (j) Refer to MCAI Transport Canada Civil Room W12–140, 1200 New Jersey substantive verbal contact we receive Aviation (TCCA) Airworthiness Directive Avenue, SE., Washington, DC 20590. about this proposed AD. • Hand Delivery: Deliver to Mail CF–2011–10, dated May 13, 2011; Discussion Bombardier Service Bulletin 700–35–011, address above between 9 a.m. and Revision 01, dated February 1, 2011; and 5 p.m., Monday through Friday, except We received reports that inspections Bombardier Service Bulletin 700–1A11–35– Federal holidays. of the wing center section revealed

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defective, misapplied, or missing The actions required by that AD are FAA’s Determination secondary fuel vapor barrier on the intended to prevent fuel or fuel vapors We are proposing this AD because we center fuel tank. The secondary fuel from leaking into the cargo or passenger evaluated all the relevant information barrier is applied external to the fuel compartments and coming into contact and determined the unsafe condition tank walls, which are subject to cabin with a possible ignition source, which described previously is likely to exist or pressure to provide a secondary means could result in fire or explosion. develop in other products of these same to contain fuel and fuel vapors. When Relevant Service Information type designs. the secondary fuel barrier is applied satisfactorily, it protects the pressurized We reviewed Boeing Service Bulletins Proposed AD Requirements cabin areas from fuel leaks and fumes. 757–57–0060, Revision 2, dated May 24, This proposed AD would require If the secondary fuel barrier is defective, 2007 (for Model 757–200, 757–200PF, accomplishing the actions specified in fuel or fumes can leak through fastener and 757–200CB series airplanes); and the service information described holes or cracks in the structure and pass 757–57–0061, Revision 1, dated May 24, previously, except as discussed under into the passenger compartment. There 2007 (for Model 757–300 series ‘‘Differences Between the Proposed AD have been no reports from operators of airplanes). These service bulletins and the Service Information.’’ fuel leaks or fumes in the passenger describe procedures for, depending on compartment. We are proposing this AD airplane configuration, inspecting for Differences Between the Proposed AD to detect and correct defective surfaces discrepancies and insufficient coverage and the Service Information and insufficient thickness of secondary of the secondary fuel barrier, Although Boeing Service Bulletin fuel barrier, which could allow fuel determining the thickness of the 757–57–0060, Revision 2, and Boeing leaks or fumes into the pressurized secondary fuel barrier, and corrective Service Bulletin 757–57–0061, Revision cabin, and allow fuel or fuel vapors to actions if necessary. Discrepancies 1, both dated May 24, 2007, specify to come in contact with an ignition source, include missing, peeled, non- send the inspection results to the which could result in a fire or an continuous, or non-transparent manufacturer, this proposed AD would explosion. secondary fuel barrier; small air not require any report. Boeing Service Related Rulemaking bubbles, air pockets, blister-like areas, Bulletin 757–57–0060, Revision 2, and or solid particles in the secondary fuel Boeing Service Bulletin 757–57–0061, On June 10, 2005, the FAA issued AD barrier; fillet sealant, primer, corrosion- Revision 1, both dated May 24, 2007, 2005–13–15, Amendment 39–14152 (70 inhibiting compound or other finishes refer to a ‘‘detailed visual inspection’’ FR 36486, June 24, 2005), applicable to applied to the top of the secondary fuel for discrepancies and insufficient certain Boeing Model 737–200, –200C, barrier; missing fillet (cap) seals; or coverage of the secondary fuel barrier. –300, –400, –500, –600, –700, –700C, areas of secondary fuel barrier whose We have determined that the procedures –800, and –900 series airplanes, which thickness is less than or greater than in the service bulletin should be requires a one-time detailed inspection specified limits; or areas not having a described as a ‘‘detailed inspection.’’ for discrepancies of the secondary fuel transparent quality that makes it Note 1 has been included in this AD to vapor barrier of the wing center section, possible to see a crack in the structure; define this type of inspection. and related investigative and corrective or areas not having a minimum actions if necessary. That AD was application coverage area. Corrective Costs of Compliance prompted by reports that the secondary actions include repairing the secondary We estimate that this proposed AD fuel vapor barrier was not applied fuel barrier, including removal and affects 619 airplanes of U.S. registry. We correctly to, or was missing from, reapplication, if needed; or applying estimate the following costs to comply certain areas of the wing center section. more secondary fuel barrier, as needed. with this proposed AD:

ESTIMATED COSTS

Cost per prod- Cost on U.S. Action Labor cost Parts cost uct operators

Access and inspect secondary 42 work-hours × $85 per hour = $3,570 per inspection ...... $0 $3,570 $2,209,830 fuel barrier.

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

ON-CONDITION COSTS

Cost per prod- Action Labor cost Parts cost uct

Apply secondary fuel barrier ...... 7 work-hours × $85 per hour = $595 per secondary fuel barrier applica- $0 $595 tion.

According to the manufacturer, some coverage for affected individuals. As a Authority for This Rulemaking of the costs of this proposed AD may be result, we have included all costs in our covered under warranty, thereby cost estimate. Title 49 of the United States Code reducing the cost impact on affected specifies the FAA’s authority to issue individuals. We do not control warranty rules on aviation safety. Subtitle I,

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section 106, describes the authority of The Boeing Company: Docket No. FAA– Inspection of Minimum Application the FAA Administrator. Subtitle VII: 2011–1094; Directorate Identifier 2011– Coverage Area Aviation Programs, describes in more NM–070–AD. (h) For Group 3 airplanes identified in detail the scope of the Agency’s Comments Due Date Boeing Service Bulletin 757–57–0060, Revision 2, dated May 24, 2007; and Group authority. (a) We must receive comments by We are issuing this rulemaking under December 12, 2011. 2 airplanes identified in Boeing Service the authority described in Subtitle VII, Bulletin 757–57–0061, Revision 1, dated May Part A, Subpart III, Section 44701: Affected ADs 24, 2007: Within 60 months after the effective ‘‘General requirements.’’ Under that (b) None. date of this AD, do a detailed inspection of the front spar and the upper panel to ensure section, Congress charges the FAA with Applicability the secondary fuel barrier application covers promoting safe flight of civil aircraft in (c) This AD applies to The Boeing the minimum area specified in Boeing air commerce by prescribing regulations Company Model 757–200, 757–200PF, and Service Bulletin 757–57–0060, Revision 2, for practices, methods, and procedures 757–200CB series airplanes, certificated in dated May 24, 2007; or Boeing Service the Administrator finds necessary for any category, as identified in Boeing Service Bulletin 757–57–0061, Revision 1, dated May safety in air commerce. This regulation Bulletin 757–57–0060, Revision 2, dated May 24, 2007; as applicable. If the secondary fuel is within the scope of that authority 24, 2007; and Model 757–300 series barrier does not cover the minimum specified because it addresses an unsafe condition airplanes, certificated in any category, as area, apply more secondary fuel barrier that is likely to exist or develop on identified in Boeing Service Bulletin 757–57– before further flight, in accordance with the 0061, Revision 1, dated May 24, 2007. products identified in this rulemaking Accomplishment Instructions of Boeing action. Subject Service Bulletin 757–57–0060, Revision 2, dated May 24, 2007; or Boeing Service Regulatory Findings (d) Joint Aircraft System Component Bulletin 757–57–0061, Revision 1, dated May (JASC)/Air Transport Association (ATA) of 24, 2007; as applicable. We determined that this proposed AD America Code 57: Wings. would not have federalism implications Measurement of Thickness of Secondary Unsafe Condition under Executive Order 13132. This Fuel Barrier proposed AD would not have a (e) This proposed AD was prompted by reports that inspections of the wing center (i) For Group 1, Group 2, and Group 4 substantial direct effect on the States, on section revealed defective, misapplied, or Configuration 1 airplanes identified in the relationship between the national missing secondary fuel vapor barrier on the Boeing Service Bulletin 757–57–0060, Government and the States, or on the center fuel tank. We are issuing this AD to Revision 2, dated May 24, 2007; and for distribution of power and detect and correct defective surfaces and Group 1, Group 2, and Group 3 Configuration responsibilities among the various insufficient thickness of secondary fuel 1 airplanes identified in Boeing Service levels of government. barrier, which could allow fuel leaks or Bulletin 757–57–0061, Revision 1, dated May For the reasons discussed above, I fumes into the pressurized cabin, and allow 24, 2007: Within 60 months after the effective certify this proposed regulation: fuel or fuel vapors to come in contact with date of this AD, measure the thickness of the (1) Is not a ‘‘significant regulatory an ignition source, which could result in a secondary fuel barrier. If the thickness is less fire or an explosion. than or over the acceptable limits defined in action’’ under Executive Order 12866, Boeing Service Bulletin 757–57–0060, (2) Is not a ‘‘significant rule’’ under Compliance Revision 2, dated May 24, 2007; or Boeing the DOT Regulatory Policies and (f) Comply with this AD within the Service Bulletin 757–57–0061, Revision 1, Procedures (44 FR 11034, February 26, compliance times specified, unless already dated May 24, 2007; as applicable, apply 1979), done. more secondary fuel barrier or repair before (3) Will not affect intrastate aviation Detailed Inspection further flight, in accordance with the in Alaska, and Accomplishment Instructions of Boeing (4) Will not have a significant (g) For airplanes identified in Boeing Service Bulletin 757–57–0060, Revision 2, economic impact, positive or negative, Service Bulletin 757–57–0060, Revision 2, dated May 24, 2007; or Boeing Service on a substantial number of small entities dated May 24, 2007, as Group 1, Group 2, Bulletin 757–57–0061, Revision 1, dated May and Group 4 Configuration 1; and airplanes 24, 2007; as applicable. under the criteria of the Regulatory identified in Boeing Service Bulletin 757–57– (j) For Group 4, Configuration 2 airplanes Flexibility Act. 0061, Revision 1, dated May 24, 2007, as identified in Boeing Service Bulletin 757–57– List of Subjects in 14 CFR Part 39 Group 1, Group 2, and Group 3 Configuration 1: Within 60 months after the effective date 0060, Revision 2, dated May 24, 2007; and Air transportation, Aircraft, Aviation of this AD, do a detailed inspection to detect Group 3, Configuration 2 airplanes identified safety, Incorporation by reference, discrepancies of the secondary fuel barrier at in Boeing Service Bulletin 757–57–0061, Safety. the front spar and the upper panel of the Revision 1, dated May 24, 2007: Within 60 wing center section, and if discrepancies months, review the maintenance records to The Proposed Amendment exist, repair before further flight, in determine if there was a minimum of 0.005 Accordingly, under the authority accordance with the Accomplishment inch of new secondary fuel barrier applied, or if the thickness of the secondary fuel delegated to me by the Administrator, Instructions of Boeing Service Bulletin 757– 57–0060, Revision 2, dated May 24, 2007; or barrier cannot be determined from the the FAA proposes to amend 14 CFR part Boeing Service Bulletin 757–57–0061, maintenance records, measure the thickness 39 as follows: Revision 1, dated May 24, 2007; as of the secondary fuel barrier. If the thickness applicable. is less than or over the acceptable limits PART 39—AIRWORTHINESS Note 1: For the purposes of this AD, a specified in Boeing Service Bulletin 757–57– DIRECTIVES detailed inspection is: ‘‘An intensive 0060, Revision 2, dated May 24, 2007; or 1. The authority citation for part 39 examination of a specific item, installation, Boeing Service Bulletin 757–57–0061, Revision 1, dated May 24, 2007; as continues to read as follows: or assembly to detect damage, failure, or irregularity. Available lighting is normally applicable, apply more secondary fuel barrier Authority: 49 U.S.C. 106(g), 40113, 44701. supplemented with a direct source of good or repair before further flight, in accordance lighting at intensity deemed appropriate. with the Accomplishment Instructions of § 39.13 [Amended] Inspection aids such as mirror, magnifying Boeing Service Bulletin 757–57–0060, 2. The FAA amends § 39.13 by adding lenses, etc., may be necessary. Surface Revision 2, dated May 24, 2007; or Boeing the following new airworthiness cleaning and elaborate access procedures Service Bulletin 757–57–0061, Revision 1, directive (AD): may be required.’’ dated May 24, 2007; as applicable.

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No Reporting Requirement DEPARTMENT OF TRANSPORTATION For service information identified in (k) Although Boeing Service Bulletin 757– this proposed AD, contact Bombardier, 57–0060, Revision 2, dated May 24, 2007; Federal Aviation Administration Inc., 400 Coˆte-Vertu Road West, Dorval, and Boeing Service Bulletin 757–57–0061, Que´bec H4S 1Y9, Canada; phone: 514– Revision 1, dated May 24, 2007; specify to 14 CFR Part 39 855–5000; fax: 514–855–7401; e-mail: submit certain information to the [Docket No. FAA–2011–1095; Directorate [email protected]; Internet: manufacturer, this AD does not include that Identifier 2010–NM–241–AD] http://www.bombardier.com. You may requirement. review copies of the referenced service RIN 2120–AA64 information at the FAA, Transport Alternative Methods of Compliance Airplane Directorate, 1601 Lind Airworthiness Directives; Bombardier, (AMOCs) Avenue, SW., Renton, Washington. For Inc. Model CL–600–2B16 (CL–601–3A, (l)(1) The Manager, Seattle Aircraft information on the availability of this Certification Office, FAA, has the authority to CL–601–3R, and CL–604 Variants) material at the FAA, call 425–227–1221. approve AMOCs for this AD, if requested Airplanes Examining the AD Docket using the procedures found in 14 CFR 39.19. AGENCY: Federal Aviation In accordance with 14 CFR 39.19, send your Administration (FAA), DOT. You may examine the AD docket on request to your principal inspector or local the Internet at http:// ACTION: Notice of proposed rulemaking Flight Standards District Office, as www.regulations.gov; or in person at the (NPRM). appropriate. If sending information directly Docket Operations office between 9 a.m. to the manager of the ACO, send it to the SUMMARY: We propose to adopt a new and 5 p.m., Monday through Friday, attention of the person identified in the airworthiness directive (AD) for the except Federal holidays. The AD docket Related Information section of this AD. products listed above. This proposed contains this proposed AD, the Information may be e-mailed to: 9-NM- AD results from mandatory continuing regulatory evaluation, any comments [email protected]. airworthiness information (MCAI) received, and other information. The (2) Before using any approved AMOC, originated by an aviation authority of street address for the Docket Operations notify your appropriate principal inspector, another country to identify and correct office (phone: 800–647–5527) is in the or lacking a principal inspector, the manager an unsafe condition on an aviation ADDRESSES section. Comments will be of the local flight standards district office/ product. The MCAI describes the unsafe available in the AD docket shortly after certificate holding district office. condition as: receipt. FOR FURTHER INFORMATION CONTACT: Related Information During pre-delivery inspections and test flights, several short circuit events were Assata Dessaline, Aerospace Engineer, (m)(1) For more information about this AD, Avionics and Flight Test Branch, ANE– contact Kevin Nguyen, Aerospace Engineer, reported, one of which resulted in smoke in 172, New York Aircraft Certification Propulsion Branch, ANM–140S, FAA, Seattle the cockpit. There were no in-service Office (ACO), FAA, 1600 Stewart Ave. Aircraft Certification Office (ACO), 1601 Lind incidents. Suite 410, Westbury, NY 11590; Avenue, SW., Renton, Washington 98057– Investigations have identified three telephone (516) 228–7301; fax (516) 3356; phone: 425–917–6501; fax: 425–917– conditions affecting the wiring of Circuit Breaker Panels * * * and Junction Boxes 794–5531. 6590; e-mail: [email protected]. * * *, which would lead to short circuiting: (2) For service information identified in SUPPLEMENTARY INFORMATION: this AD, contact Boeing Commercial * * * * * Comments Invited Airplanes, Attention: Data & Services If not corrected, these conditions could result in arcing, damage to adjacent structure, We invite you to send any written Management, P.O. Box 3707, MC 2H–65, smoke in the cockpit, or loss of system relevant data, views, or arguments about Seattle, Washington 98124–2207; telephone redundancies. this proposed AD. Send your comments 206–544–5000, extension 1; fax 206–766– to an address listed under the 5680; e-mail [email protected]; * * * * * ADDRESSES section. Include ‘‘Docket No. Internet https://www. The proposed AD would require actions boeingfleet.com. You may review copies of that are intended to address the unsafe FAA–2011–1095; Directorate Identifier the referenced service information at the condition described in the MCAI. 2010–NM–241–AD’’ at the beginning of your comments. We specifically invite FAA, Transport Airplane Directorate, 1601 DATES: We must receive comments on Lind Avenue, SW., Renton, Washington. For comments on the overall regulatory, this proposed AD by December 12, economic, environmental, and energy information on the availability of this 2011. material at the FAA, call 425–227–1221. aspects of this proposed AD. We will ADDRESSES: You may send comments by consider all comments received by the * * * * * any of the following methods: closing date and may amend this Issued in Renton, Washington, on October • Federal eRulemaking Portal: Go to proposed AD based on those comments. 17, 2011. http://www.regulations.gov. Follow the We will post all comments we Kalene C. Yanamura, instructions for submitting comments. receive, without change, to http:// • Fax: (202) 493–2251. www.regulations.gov, including any Acting Manager, Transport Airplane • Mail: U.S. Department of Directorate, Aircraft Certification Service. personal information you provide. We Transportation, Docket Operations, will also post a report summarizing each [FR Doc. 2011–27652 Filed 10–25–11; 8:45 am] M–30, West Building Ground Floor, substantive verbal contact we receive BILLING CODE 4910–13–P Room W12–140, 1200 New Jersey about this proposed AD. Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of Discussion Transportation, Docket Operations, Transport Canada Civil Aviation M–30, West Building Ground Floor, (TCCA), which is the airworthiness Room W12–40, 1200 New Jersey authority for Canada, has issued Avenue, SE., Washington, DC, between Canadian Airworthiness Directive CF– 9 a.m. and 5 p.m., Monday through 2010–25, dated August 3, 2010 (referred Friday, except Federal holidays. to after this as ‘‘the MCAI’’), to correct

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an unsafe condition for the specified Differences Between This AD and the Regulatory Findings products. The MCAI states: MCAI or Service Information We determined that this proposed AD During pre-delivery inspections and test We have reviewed the MCAI and would not have federalism implications flights, several short circuit events were related service information and, in under Executive Order 13132. This reported, one of which resulted in smoke in general, agree with their substance. But proposed AD would not have a the cockpit. There were no in-service we might have found it necessary to use substantial direct effect on the States, on incidents. different words from those in the MCAI the relationship between the national Investigations have identified three Government and the States, or on the conditions affecting the wiring of Circuit to ensure the AD is clear for U.S. operators and is enforceable. In making distribution of power and Breaker Panels 1, 2, 3 and 4 (CBP–1, CBP– responsibilities among the various 2, CBP–3, and CBP–4) and Junction Boxes 17 these changes, we do not intend to differ substantively from the information levels of government. and 18 (JB17 and JB18), which would lead to For the reasons discussed above, I short circuiting: provided in the MCAI and related certify this proposed regulation: 1. In CBP–1, there may be low clearance service information. 1. Is not a ‘‘significant regulatory between specific bus bars and the circuit We might also have proposed breaker panel structure. action’’ under Executive Order 12866; different actions in this AD from those 2. Is not a ‘‘significant rule’’ under the 2. Some nickel-plated terminal lugs, size in the MCAI in order to follow FAA number 22–20 with a green insulating sleeve, DOT Regulatory Policies and Procedures policies. Any such differences are (44 FR 11034, February 26, 1979); and may not have been manufactured to highlighted in a NOTE within the applicable standards. These terminal lugs 3. Will not have a significant proposed AD. may have been installed in CBP–1, CBP–2, economic impact, positive or negative, CBP–3, CBP–4, JB17 and JB18. This Costs of Compliance on a substantial number of small entities manufacturing defect affects the mechanical under the criteria of the Regulatory hold of the wire in the crimped lug barrel. Based on the service information, we Flexibility Act. 3. In JB17, JB18 and the above-mentioned estimate that this proposed AD would We prepared a regulatory evaluation CBPs, foreign object debris (FOD) may be affect about 69 products of U.S. registry. of the estimated costs to comply with found. We also estimate that it would take this proposed AD and placed it in the If not corrected, these conditions could about 6 work-hours per product to AD docket. result in arcing, damage to adjacent structure, comply with the basic requirements of smoke in the cockpit, or loss of system this proposed AD. The average labor List of Subjects in 14 CFR Part 39 redundancies. rate is $85 per work-hour. Required Air transportation, Aircraft, Aviation This TCCA directive is issued to mandate parts would cost about $347 per safety, Incorporation by reference, the replacement or relocation of the specific product. Where the service information Safety. CBP–1 bus bars, the [detailed] inspection, lists required parts costs that are and rework if necessary, of any loose or covered under warranty, we have The Proposed Amendment improperly crimped lugs in CBP–1, CBP–2, assumed that there will be no charge for Accordingly, under the authority CBP–3, CBP–4, JB17 and JB18, and to ensure these costs. As we do not control there is no FOD in the affected areas [via a delegated to me by the Administrator, general visual inspection for FOD, and warranty coverage for affected parties, the FAA proposes to amend 14 CFR part removal if necessary]. some parties may incur costs higher 39 as follows: than estimated here. Based on these You may obtain further information by figures, we estimate the cost of the PART 39—AIRWORTHINESS examining the MCAI in the AD docket. proposed AD on U.S. operators to be DIRECTIVES $59,133, or $857 per product. Relevant Service Information 1. The authority citation for part 39 Authority for This Rulemaking continues to read as follows: Bombardier has issued Service Authority: 49 U.S.C. 106(g), 40113, 44701. Bulletin 605–24–002, dated December Title 49 of the United States Code 07, 2009, and Service Bulletin 605–24– specifies the FAA’s authority to issue § 39.13 [Amended] 004, dated January 18, 2010. The actions rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by adding described in this service information are section 106, describes the authority of the following new AD: intended to correct the unsafe condition the FAA Administrator. ‘‘Subtitle VII: identified in the MCAI. Aviation Programs,’’ describes in more Bombardier, Inc.: Docket No. FAA–2011– detail the scope of the Agency’s 1095; Directorate Identifier 2010–NM– 241–AD. FAA’s Determination and Requirements authority. of This Proposed AD Comments Due Date We are issuing this rulemaking under This product has been approved by the authority described in ‘‘Subtitle VII, (a) We must receive comments by the aviation authority of another Part A, Subpart III, Section 44701: December 12, 2011. country, and is approved for operation General requirements.’’ Under that Affected ADs in the United States. Pursuant to our section, Congress charges the FAA with (b) None. bilateral agreement with the State of promoting safe flight of civil aircraft in Design Authority, we have been notified air commerce by prescribing regulations Applicability of the unsafe condition described in the for practices, methods, and procedures (c) This AD applies to Bombardier, Inc. MCAI and service information the Administrator finds necessary for Model CL–600–2B16 (CL–601–3A, CL–601– referenced above. We are proposing this safety in air commerce. This regulation 3R, and CL–604 Variants) airplanes, certificated in any category, serial numbers AD because we evaluated all pertinent is within the scope of that authority 5701 through 5752 inclusive, 5754 through information and determined an unsafe because it addresses an unsafe condition 5775 inclusive, 5777, 5779 through 5781 condition exists and is likely to exist or that is likely to exist or develop on inclusive, 5783 through 5790 inclusive, 5792, develop on other products of the same products identified in this rulemaking 5794 through 5796 inclusive, 5798, 5801, and type design. action. 5804.

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Subject (2) Do a general visual inspection for FOD. DEPARTMENT OF TRANSPORTATION (d) Air Transport Association (ATA) of If any FOD is found: Before further flight, America Code 24: Electrical Power. remove the FOD. Federal Aviation Administration Reason FAA AD Differences 14 CFR Part 39 (e) The mandatory continuing Note 1: This AD differs from the MCAI [Docket No. FAA–2010–0517; Directorate airworthiness information (MCAI) states: and/or service information as follows: The Identifier 2009–SW–73–AD] During pre-delivery inspections and test Accomplishment Instructions of Bombardier flights, several short circuit events were Service Bulletin 605–24–002, dated RIN 2120–AA64 reported, one of which resulted in smoke in December 7, 2009, does not specify corrective the cockpit. There were no in-service Airworthiness Directives; Sikorsky incidents. action for the general visual inspection for FOD. This AD requires removing any FOD Aircraft Corporation Model S–76A Investigations have identified three discovered during the general visual Helicopters conditions affecting the wiring of Circuit inspection. Breaker Panels * * * and Junction Boxes AGENCY: Federal Aviation * * *, which would lead to short circuiting: Other FAA AD Provisions Administration, DOT. If not corrected, these conditions could result ACTION: (i) The following provisions also apply to Notice of proposed rulemaking in arcing, damage to adjacent structure, (NPRM). smoke in the cockpit, or loss of system this AD: redundancies. (1) Alternative Methods of Compliance SUMMARY: This document proposes (AMOCs): The Manager, New York Aircraft Compliance adopting a new airworthiness directive Certification Office, ANE–170, FAA, has the (AD) for the Sikorsky Aircraft (f) You are responsible for having the authority to approve AMOCs for this AD, if Corporation (Sikorsky) Model S–76A actions required by this AD performed within requested using the procedures found in 14 the compliance times specified, unless the helicopters. This proposal would CFR 39.19. In accordance with 14 CFR 39.19, require modifying the electric rotor actions have already been done. send your request to your principal inspector brake (ERB). Thereafter, the AD would or local Flight Standards District Office, as Inspections, Bus Bar Actions, and Corrective also require inserting changes to the appropriate. If sending information directly Actions ‘‘Normal Procedures’’ and ‘‘Emergency to the manager of the ACO, send it to ATTN: (g) For airplanes having serial numbers Procedures’’ sections of the Rotorcraft 5701 through 5752, 5754 through 5775, 5777, Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Flight Manual (RFM), which revises the 5780 through 5781, 5783 through 5790, 5792, information of the basic RFM when the 5794 through 5796, 5798, 5801, and 5804: Avenue, Suite 410, Westbury, New York Within 800 flight hours after the effective 11590; telephone (516) 228–7300; fax (516) ERB is installed. This proposal is date of this AD, do the actions in paragraph 794–5531. Before using any approved AMOC, prompted by a reported incident of a (g)(1), (g)(2), and (g)(3) of this AD, in notify your appropriate principal inspector, fire occurring in an ERB installed on a accordance with the Accomplishment or lacking a principal inspector, the manager Model S–76A helicopter. The actions Instructions of the Bombardier Service of the local flight standards district office/ specified by this proposed AD are Bulletin 605–24–004, dated January 18, 2010. certificate holding district office. The AMOC intended to prevent overheating of the (1) Do a detailed inspection in CBP–1 for ERB assembly, ignition of the ERB loose lugs and for crimped lugs that have any approval letter must specifically reference this AD. hydraulic fluid, a fire in the main of the conditions specified in step 2.B.(9)(d) gearbox area, and subsequent loss of of Bombardier Service Bulletin 605–24–004, (2) Airworthy Product: For any requirement dated January 18, 2010. Before further flight, in this AD to obtain corrective actions from control of the helicopter. replace all loose lugs and all crimped lugs in a manufacturer or other source, use these DATES: Comments must be received on CBP–1 that have any of the conditions actions if they are FAA-approved. Corrective or before December 27, 2011. specified in step 2.B.(9)(d) of Bombardier actions are considered FAA-approved if they ADDRESSES: Use one of the following Service Bulletin 605–24–004, dated January are approved by the State of Design Authority addresses to submit comments on this 18, 2010. (or their delegated agent). You are required proposed AD: (2) Relocate or replace the CBP–1 bus bars to assure the product is airworthy before it • as applicable. Federal eRulemaking Portal: Go to is returned to service. (3) Do a general visual inspection for http://www.regulations.gov. Follow the foreign object damage (FOD). If any FOD is Related Information instructions for submitting comments. found: Before further flight, remove the FOD. • Fax: 202–493–2251. (j) Refer to MCAI Canadian Airworthiness (h) For airplanes having serial numbers • Mail: U.S. Department of Directive CF–2010–25, dated August 3, 2010; 5701 through 5752, 5754 through 5756, 5758 Transportation, Docket Operations, and Bombardier Service Bulletin 605–24– through 5775, 5779, 5781, 5788, 5789, 5792, M–30, West Building Ground Floor, 002, dated December 07, 2009; and 5795, 5798, 5801, and 5804: Within 800 flight Room W12–140, 1200 New Jersey Bombardier Service Bulletin 605–24–004, hours after the effective date of this AD, do Avenue, SE., Washington, DC 20590. the actions in paragraph (h)(1) and (h)(2) of dated January 18, 2010; for related • this AD, in accordance with the information. Hand Delivery: U.S. Department of Accomplishment Instructions of the Transportation, Docket Operations, Bombardier Service Bulletin 605–24–002, Issued in Renton, Washington, on October M–30, West Building Ground Floor, dated December 7, 2009. 17, 2011. Room W12–140, 1200 New Jersey (1) Do a detailed inspection for loose lugs Kalene C. Yanamura, Avenue, SE., Washington, DC 20590, and for crimped lugs that have any of the Acting Manager, Transport Airplane between 9 a.m. and 5 p.m., Monday conditions specified in step 2.B.(2)(d) of Directorate, Aircraft Certification Service. through Friday, except Federal holidays. Bombardier Service Bulletin 605–24–002, [FR Doc. 2011–27653 Filed 10–25–11; 8:45 am] You may get the service information dated December 7, 2009, in CBP–2, CBP–3, identified in this proposed AD from CBP–4, JB17, and JB18. Before further flight, BILLING CODE 4910–13–P replace all loose lugs and all crimped lugs Sikorsky Aircraft Corporation, Attn: that have any of the conditions specified in Manager, Commercial Technical step 2.B.(2)(d) of Bombardier Service Bulletin Support, mailstop s581a, 6900 Main 605–24–002, dated December 7, 2009, in Street, Stratford, CT, telephone (203) CBP–2, CBP–3, CBP–4, JB17, and JB18. 383–4866, e-mail address:

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[email protected], or at http:// modification of the ERB system ERB system after each modification. The www.sikorsky.com. including, among other modifications, proposed AD would also require FOR FURTHER INFORMATION CONTACT: installation of a warning relay by inserting changes contained in a Caspar Wang, Aviation Safety Engineer, following Sikorsky Customer Service supplement into the RFM. Boston Aircraft Certification Office, 12 Bulletin No. 76–66–10B, dated These actions would be required to be New England Executive Park, November 25, 1981. AD 2003–04–15, accomplished in accordance with Burlington, MA 01803, telephone (781) issued February 14, 2003 (68 FR 8994, specified portions of the service February 27, 2003), requires inspecting 238–7799, fax (781) 238–7170. information described previously. certain rotor brake discs for cracks that We estimate that this proposed AD SUPPLEMENTARY INFORMATION: resulted from improper heat treating of would affect 180 helicopters of U.S. Comments Invited the disc. This document proposes registry. It would take about 38 work adopting a new AD for the Sikorsky hours per helicopter to perform the We invite you to submit any written Model S–76A helicopters with a modifications and operational tests at an data, views, or arguments regarding this different part-numbered ERB. This average labor rate of $85 per work hour. proposed AD. Send your comments to proposal would require, within 120 Required parts would cost $13,300 per the address listed under the caption days, modifying the ERB by installing helicopter. Based on these figures, we ADDRESSES. Include the docket number and operationally testing the parts estimate the total cost impact of the ‘‘FAA–2010–0517, Directorate Identifier contained in an ERB warning relay kit proposed AD on U.S. operators would 2009–SW–73–AD’’ at the beginning of (P/N 76070–55023–011), an ERB circuit be $2,975,400 for the fleet. your comments. We specifically invite modification kit (P/N 76070–55033– comments on the overall regulatory, 012), and an ERB modification kit (P/N Regulatory Findings economic, environmental, and energy 76070–55207–011) for helicopters with We have determined that this aspects of the proposed AD. We will ERB, P/N 76363–09100–012. This proposed AD would not have federalism consider all comments received by the proposal is prompted by a reported implications under Executive Order closing date and may amend the incident of a fire occurring in an ERB 13132. Additionally, this proposed AD proposed AD in light of those installed on a Model S–76A helicopter would not have a substantial direct comments. in Brazil. The actions specified by this effect on the States, on the relationship We will post all comments we proposed AD are intended to prevent between the national Government and receive, without change, to http:// overheating of the ERB assembly, the States, or on the distribution of www.regulations.gov, including any ignition of the ERB hydraulic fluid, a power and responsibilities among the personal information you provide. We fire in the main gearbox area, and various levels of government. will also post a report summarizing each subsequent loss of control of the For the reasons discussed above, I substantive verbal contact with FAA helicopter. certify that the proposed regulation: personnel concerning this proposed We have reviewed the following 1. Is not a ‘‘significant regulatory rulemaking. Using the search function documents from Sikorsky: action’’ under Executive Order 12866; of our docket Web site, you can find and • Customer Service Bulletin No. 76– 2. Is not a ‘‘significant rule’’ under the read the comments to any of our 66–10B, Revision 1, pages 2–8, dated DOT Regulatory Policies and Procedures dockets, including the name of the July 30, 1981, and Revision 2, pages 1 (44 FR 11034, February 26, 1979); and individual who sent or signed the and 9–13 dated November 25, 1981 3. Will not have a significant comment. You may review the DOT’s (CSB), specifies installing an ERB economic impact, positive or negative, complete Privacy Act Statement in the warning relay kit; on a substantial number of small entities Federal Register published on April 11, • Customer Service Notice 76–113, under the criteria of the Regulatory 2000 (65 FR 19477–78). dated June 1, 1983 (CSN), which Flexibility Act. specifies installing an ERB circuit We prepared a draft economic Examining the Docket breaker and modification kit; and evaluation of the estimated costs to You may examine the docket that • ASB No. 76–66–48B, Revision B, comply with this proposed AD. See the contains the proposed AD, any dated July 8, 2009, which specifies a AD docket to examine the draft comments, and other information on the one-time installation of an ERB economic evaluation. Internet at http://www.regulations.gov modification kit containing two other or in person at the Docket Operations kits and several modifications. Authority for This Rulemaking office between 9 a.m. and 5 p.m., • RFM Supplement No. 41, dated Title 49 of the United States Code Monday through Friday, except Federal September 6, 2005, which revises the specifies the FAA’s authority to issue holidays. The Docket Operations office information in the basic RFM normal rules on aviation safety. Subtitle I, (telephone (800) 647–5527) is located in and emergency procedures sections Section 106, describes the authority of Room W12–140 on the ground floor of when the ERB system is modified. the FAA Administrator. Subtitle VII, the West Building at the street address This unsafe condition is likely to exist Aviation Programs, describes in more stated in the ADDRESSES section. or develop on other helicopters of the detail the scope of the Agency’s Comments will be available in the AD same type design. Therefore, the authority. docket shortly after receipt. proposed AD would require modifying We are issuing this rulemaking under the ERB by installing the parts the authority described in Subtitle VII, Discussion contained in a warning relay system Part A, Subpart III, Section 44701, A number of service documents and modification kit, part number (P/N) ‘‘General requirements.’’ Under that ADs have been issued relating to the 76070–55023–011; a circuit section, Congress charges the FAA with ERB on these and similar model modification kit, P/N 76070–55033–012; promoting safe flight of civil aircraft in helicopters. AD 82–17–03, issued July and a manifold, relay box, junction box, air commerce by prescribing regulations 30, 1982 (47 FR 35469, August 16, right-hand relay panel, and wiring for practices, methods, and procedures 1982), requires a puck-to-disc harness modification kit, P/N 76070– the Administrator finds necessary for inspection of rotor brake, part number 55207–011. The proposed AD would safety in air commerce. This regulation (P/N) 76363–09101–101, and also require operationally testing the is within the scope of that authority

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because it addresses an unsafe condition ‘‘Emergency Procedures (Part 1, Section III)’’ • Fax: 202–493–2251. that is likely to exist or develop on contained in Sikorsky RFM, Supplement No. • Mail: U.S. Department of products identified in this rulemaking 41, dated September 6, 2005. Transportation, Docket Operations, action. (c) To request a different method of M–30, West Building Ground Floor, compliance or a different compliance time Room W12–140, 1200 New Jersey for this AD, follow the procedures in 14 CFR List of Subjects in 14 CFR Part 39 Avenue, SE., Washington, DC 20590. 39.19. Contact the Manager, Boston Aircraft • Air transportation, Aircraft, Aviation Certification Office, FAA, ATTN: Caspar Hand Delivery: U.S. Department of safety, Incorporation by reference, Wang, Aviation Safety Engineer, 12 New Transportation, Docket Operations, Safety. England Executive Park, Burlington, MA M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey The Proposed Amendment 01803, telephone (781) 238–7799, fax (781) 238–7170, for information about previously Avenue, SE., Washington, DC 20590, Accordingly, pursuant to the approved alternative methods of compliance. between 9 a.m. and 5 p.m., Monday authority delegated to me by the (d) The Joint Aircraft System/Component through Friday, except Federal holidays. Administrator, the Federal Aviation (JASC) Code is 6321: Main Rotor Brake. FOR FURTHER INFORMATION CONTACT: John Administration proposes to amend part Issued in Fort Worth, Texas, on October 7, Coffey, Aviation Safety Engineer, Boston 39 of the Federal Aviation Regulations 2011. Aircraft Certification Office, 12 New (14 CFR part 39) as follows: Lance T. Gant, England Executive Park, Burlington, MA Acting Manager, Rotorcraft Directorate, 01803, telephone (781) 238–7173, fax PART 39—AIRWORTHINESS Aircraft Certification Service. (781) 238–7170. DIRECTIVES [FR Doc. 2011–27659 Filed 10–25–11; 8:45 am] SUPPLEMENTARY INFORMATION: 1. The authority citation for part 39 BILLING CODE 4910–13–P Comments Invited continues to read as follows: We invite you to submit any written Authority: 49 U.S.C. 106(g), 40113, 44701. DEPARTMENT OF TRANSPORTATION data, views, or arguments regarding this § 39.13 [Amended] proposed AD. Send your comments to 2. Section 39.13 is amended by Federal Aviation Administration the address listed under the caption adding a new airworthiness directive ADDRESSES. Include the docket number (AD) to read as follows: 14 CFR Part 39 ‘‘FAA–2011–1115, Directorate Identifier 2010–SW–011–AD’’ at the beginning of Sikorsky Aircraft Corporation: Docket No. [Docket No. FAA–2011–1115; Directorate Identifier 2010–SW–011–AD] your comments. We specifically invite FAA–2010–0517; Directorate Identifier comments on the overall regulatory, 2009–SW–73–AD. RIN 2120–AA64 economic, environmental, and energy Applicability: Model S–76A helicopters, aspects of the proposed AD. We will with an electric rotor brake (ERB), part Airworthiness Directives; Sikorsky number (P/N) 76363–09100–012, installed, consider all comments received by the Aircraft Corporation (Sikorsky) Model closing date and may amend the certificated in any category. S–92A Helicopters Compliance: Required as indicated, unless proposed AD in light of those accomplished previously. AGENCY: Federal Aviation comments. To prevent overheating of the ERB Administration, DOT. We will post all comments we assembly, ignition of the ERB hydraulic fluid, receive, without change, to http:// ACTION: Notice of proposed rulemaking fire in the main gearbox area, and subsequent www.regulations.gov, including any (NPRM). loss of control of the helicopter, do the personal information you provide. We following: SUMMARY: This document proposes will also post a report summarizing each (a) Within 120 days, modify the ERB by adopting a new airworthiness directive substantive verbal contact with FAA installing: personnel concerning this proposed (1) Warning relay system parts contained (AD) for the Sikorsky Model S–92A in modification kit, part number (P/N) helicopters. This proposal would rulemaking. Using the search function 76070–55023–011, and operationally testing require revising the Operating of our docket web site, you can find and the ERB system in accordance with Limitations section of the Sikorsky read the comments to any of our paragraphs 2.A. through 2.F., of Sikorsky Model S–92A Rotorcraft Flight Manual dockets, including the name of the Customer Service Bulletin No. 76–66–10B, (RFM). This proposal is prompted by individual who sent or signed the Revision 1 (pages 2 through 8), dated July 30, the manufacturer’s analysis of engine comment. You may review the DOT’s 1981, and Revision 2, (pages 1 and 9 through data that revealed the data was complete Privacy Act Statement in the 13) dated November 25, 1981; inaccurate in dealing with available Federal Register published on April 11, (2) Circuit breaker and diodes contained in 2000 (65 FR 19477–78). ERB circuit modification kit, P/N 76070– above specification engine power 55033–012, and operationally testing the ERB margin. The actions specified by this Examining the Docket system in accordance with paragraph B. proposed AD are intended to prevent You may examine the docket that through F. of Sikorsky Customer Service the use of inaccurate engine contains the proposed AD, any Notice 76–113, dated June 1, 1983; and performance data in calculating comments, and other information on the (3) Manifold, relay box, junction box, right- maximum gross weight by revising the Internet at http://www.regulations.gov hand relay panel, and wiring harness parts Operating Limitations section of the contained in ERB modification kit, P/N or in person at the Docket Operations RFM. 76070–55207–011, and operationally testing office between 9 a.m. and 5 p.m., the ERB system in accordance with DATES: Comments must be received on Monday through Friday, except Federal paragraphs 3.B. through 3.I. of the or before December 27, 2011. holidays. The Docket Operations office Accomplishment Instructions of Sikorsky ADDRESSES: Use one of the following (telephone (800) 647–5527) is located in Alert Service Bulletin No. 76–66–48B, Revision B, dated July 8, 2009. addresses to submit comments on this Room W12–140 on the ground floor of proposed AD: the West Building at the street address (b) After accomplishing paragraph (a) of • this AD, insert into the Sikorsky Rotorcraft Federal eRulemaking Portal: Go to stated in the ADDRESSES section. Flight Manual (RFM) the changes to the http://www.regulations.gov. Follow the Comments will be available in the AD ‘‘Normal Procedures (Part I, Section II)’’ and instructions for submitting comments. docket shortly after receipt.

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Discussion per work hour. Parts costs are not The Proposed Amendment This document proposes adopting a associated with this AD. Based on these figures, we estimate the total cost Accordingly, pursuant to the new AD for the Sikorsky Model S–92A authority delegated to me by the helicopters. This proposal would impact of the proposed AD on U.S. operators would be $3,145. Administrator, the Federal Aviation require revising the Operating Administration proposes to amend part Limitations section, Part 1, Section 1, Regulatory Findings 39 of the Federal Aviation Regulations Weight Limits, of the Sikorsky Model S– We have determined that this (14 CFR part 39) as follows: 92A RFM with the following statement proposed AD would not have federalism ‘‘Performance credit for above implications under Executive Order PART 39—AIRWORTHINESS specification engine power margin is 13132. Additionally, this proposed AD DIRECTIVES prohibited.’’ Engine power margin is would not have a substantial direct determined through power assurance effect on the States, on the relationship 1. The authority citation for part 39 checks. Previous flight manual revisions between the national Government and continues to read as follows: allowed for the use of above the States, or on the distribution of Authority: 49 U.S.C. 106(g), 40113, 44701. specification engine power margin as power and responsibilities among the shown in the circled area of Figure 1 of various levels of government. § 39.13 [Amended] this AD. The use of above-specification For the reasons discussed above, I engine power margin is now being certify that the proposed regulation: 2. Section 39.13 is amended by prohibited. Sikorsky has published 1. Is not a ‘‘significant regulatory adding a new airworthiness directive to various RFM revisions correcting the action’’ under Executive Order 12866; read as follows: charts in Parts I and IV of the RFM. If 2. Is not a ‘‘significant rule’’ under the Sikorsky Aircraft Corporation: Docket No. those revisions have previously been DOT Regulatory Policies and Procedures FAA–2011–1115; Directorate Identifier incorporated into the RFM, the RFM (44 FR 11034, February 26, 1979); 2010–SW–011–AD. revision specified by this proposed AD 3. Will not affect intrastate aviation in would not be required. The RFM Alaska to the extent that it justifies Applicability: Model S–92A helicopters, revisions, all dated April 9, 2008, are as making a regulatory distinction; and certificated in any category. follows: 4. Will not have a significant Compliance: Within 90 days, unless economic impact, positive or negative, accomplished previously. on a substantial number of small entities To prevent the use of inaccurate Affected RFM Revision with correct charts under the criteria of the Regulatory performance data in calculating the Flexibility Act. maximum gross weight, revise the Operating S92A–RFM–002 ...... Revision 8. We prepared an economic evaluation Limitations section of the Rotorcraft Flight S92A–RFM–003 ...... Revision 7. of the estimated costs to comply with Manual (RFM) as follows: S92A–RFM–004 ...... Revision 6. (a) By making pen and ink changes, insert S92A–RFM–005 ...... Revision 5. this proposed AD. See the AD docket to examine the draft economic evaluation. into the Operating Limitations section, Part 1, S92A–RFM–006 ...... Revision 6. Section 1, Weight Limits, of RFM SA S92A– Authority for This Rulemaking RFM–002, –003, –004, –005, and –006 the This proposal is prompted by the Title 49 of the United States Code following limitation ‘‘Performance credit for manufacturer’s analysis of engine data specifies the FAA’s authority to issue above specification engine power margin is that revealed the data was inaccurate in rules on aviation safety. Subtitle I, prohibited.’’ dealing with available engine power Section 106, describes the authority of (b) If the RFM already contains the margin. The actions specified by this the FAA Administrator. Subtitle VII, revisions appropriate for your helicopter as proposed AD are intended to prevent Aviation Programs, describes in more listed in the following Table 1, all dated the use of inaccurate performance data detail the scope of the Agency’s April 9, 2008, with the correct performance in calculating maximum gross weight by authority. charts, without the performance credit as revising the Operating Limitations We are issuing this rulemaking under depicted in the circled area of Figure 1 of this section of the RFM. the authority described in Subtitle VII, AD, the operating limitation required by This unsafe condition is likely to exist Part A, Subpart III, Section 44701, paragraph (a) of this AD does not need to be or develop on other helicopters of the ‘‘General requirements.’’ Under that inserted into the RFM. same type design. Therefore, the section, Congress charges the FAA with proposed AD would require inserting a promoting safe flight of civil aircraft in TABLE 1 limitation into the Operating Limitation air commerce by prescribing regulations section of the RFM prohibiting the use for practices, methods, and procedures Affected RFM Revision with of power margin percentage credit in the Administrator finds necessary for correct charts calculating gross weight and inserting safety in air commerce. This regulation S92A–RFM–002 ...... Revision 8. the revisions into the Operating is within the scope of that authority S92A–RFM–003 ...... Revision 7. Limitations, Part 1, Section 1, of because it addresses an unsafe condition S92A–RFM–004 ...... Revision 6. Sikorsky RFM SA S92A–RFM–002, that is likely to exist or develop on S92A–RFM–005 ...... Revision 5. –003, –004, –005, and –006. products identified in this rulemaking S92A–RFM–006 ...... Revision 6. We estimate that this proposed AD action. would affect 37 helicopters of U.S. registry, and the proposed actions List of Subjects in 14 CFR Part 39 Note 1: Previous RFM revisions allowed for would take about 1 work hour per Air transportation, Aircraft, Aviation the use of above-specification engine power helicopter to insert the revisions into safety, Incorporation by reference, margin as depicted in the circled area of the RFM at an average labor rate of $85 Safety. Figure 1 of this AD.

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(c) To request a different method of DEPARTMENT OF TRANSPORTATION SUMMARY: This document proposes compliance or a different compliance time adopting a new airworthiness directive for this AD, follow the procedures in 14 CFR Federal Aviation Administration (AD) for the Sikorsky Model S–92A 39.19. Contact the Manager, Boston Aircraft helicopters. This proposal would Certification Office, FAA, Attn: John Coffey 14 CFR Part 39 Aviation Safety Engineer, 12 New England require inspecting each tail rotor blade Executive Park, Burlington, MA 01803, (blade) for mislocated aluminum wire telephone (781) 238–7173, fax (781) 238– [Docket No. FAA–2011–1113; Directorate mesh in the blade skin. This proposal is 7170, for information about previously Identifier 2009–SW–53–AD] prompted by the discovery that blades approved alternative methods of compliance. were manufactured with aluminum wire (d) The Joint Aircraft System/Component RIN 2120–AA64 mesh mislocated, leaving portions of the (JASC) Code is 7200: Engine (Turbine/ graphite torque tube (spar) region Turboprop). Airworthiness Directives; Sikorsky unprotected from a lightning strike. This Issued in Fort Worth, Texas, on October 7, Aircraft Corporation (Sikorsky) Model condition can exist in both the upper 2011. S–92A Helicopters and lower blade skin airfoils. The Lance T. Gant, AGENCY: Federal Aviation actions specified by this proposed AD Acting Manager, Rotorcraft Directorate, Administration, DOT. are intended to detect mislocated blade Aircraft Certification Service. wire mesh and to prevent spar ACTION: Notice of proposed rulemaking [FR Doc. 2011–27670 Filed 10–25–11; 8:45 am] delamination, loss of the blade tip cap (NPRM). BILLING CODE 4910–13–P during a lightning strike, blade

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imbalance, loss of a blade, and individual who sent or signed the worldwide, and we assume 29 percent subsequent loss of control of the comment. You may review the DOT’s (141) of those blades may be on helicopter. complete Privacy Act Statement in the helicopters of U.S. registry. We estimate DATES: Comments must be received on Federal Register published on April 11, that inspecting a blade for mislocated or before December 27, 2011. 2000 (65 FR 19477–78). wire mesh would take about 4 work hours per blade, assuming all operators ADDRESSES: Use one of the following Examining the Docket addresses to submit comments on this opt to do the blade sanding inspection You may examine the docket that rather than the eddy current inspection, proposed AD: contains the proposed AD, any • Federal eRulemaking Portal: Go to at an average labor rate of $85 per work comments, and other information on the hour. Required parts would cost about http://www.regulations.gov. Follow the Internet at http://www.regulations.gov instructions for submitting comments. $13,000 for each blade repaired by the • or in person at the Docket Operations manufacturer or $180,000 for each new Fax: 202–493–2251. office between 9 a.m. and 5 p.m., • Mail: U.S. Department of blade. The total cost of the proposed AD Monday through Friday, except Federal Transportation, Docket Operations, for U.S. operators would be $3,215,940, holidays. The Docket Operations office M–30, West Building Ground Floor, assuming 51 blades are found with (telephone (800) 647–5527) is located in Room W12–140, 1200 New Jersey mislocated wire mesh, and assuming 36 Room W12–140 on the ground floor of Avenue, SE., Washington, DC 20590. of those blades are replaced with blades the West Building at the street address • Hand Delivery: U.S. Department of repaired by the manufacturer and 15 stated in the ADDRESSES section. Transportation, Docket Operations, blades are replaced with new blades. Comments will be available in the AD M–30, West Building Ground Floor, docket shortly after receipt. Regulatory Findings Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590, Discussion We have determined that this between 9 a.m. and 5 p.m., Monday proposed AD would not have federalism This document proposes adopting a implications under Executive Order through Friday, except Federal holidays. new AD for the Sikorsky Model S–92A You may get the service information 13132. Additionally, this proposed AD helicopters. This proposal would would not have a substantial direct identified in this proposed AD from require inspecting each blade for Sikorsky Aircraft Corporation, Attn: effect on the States, on the relationship mislocated aluminum wire mesh in the between the national Government and Manager, Commercial Technical blade skin. This proposal is prompted Support, mailstop s581a, 6900 Main the States, or on the distribution of by the discovery that blades were power and responsibilities among the Street, Stratford, CT, telephone (203) manufactured with aluminum wire 383–4866, e-mail address various levels of government. mesh mislocated, leaving portions of the For the reasons discussed above, I [email protected], or at http:// graphite torque tube (spar) region www.sikorsky.com. certify that the proposed regulation: unprotected from a lightning strike. This 1. Is not a ‘‘significant regulatory FOR FURTHER INFORMATION CONTACT: condition can exist on both the upper action’’ under Executive Order 12866; Nicholas Faust, Aviation Safety and lower blade skin airfoils. The 2. Is not a ‘‘significant rule’’ under the Engineer, Boston Aircraft Certification actions specified by this proposed AD DOT Regulatory Policies and Procedures Office, 12 New England Executive Park, are intended to detect mislocated blade (44 FR 11034, February 26, 1979); Burlington, MA 01803, telephone (781) wire mesh to prevent spar delamination 3. Will not affect intrastate aviation in 238–7763, fax (781) 238–7170. and loss of the blade tip cap during a Alaska to the extent that it justifies SUPPLEMENTARY INFORMATION: lightning strike leading to blade making a regulatory distinction; and imbalance, loss of a blade, and 4. Will not have a significant Comments Invited subsequent loss of control of the economic impact, positive or negative, We invite you to submit any written helicopter. on a substantial number of small entities data, views, or arguments regarding this We have reviewed Sikorsky Special under the criteria of the Regulatory proposed AD. Send your comments to Service Instructions SSI No. 92–021A, Flexibility Act. the address listed under the caption dated October 21, 2009 (SSI), which We prepared a draft economic ADDRESSES. Include the docket number specifies inspecting the blade for evaluation of the estimated costs to ‘‘FAA–2011–1113, Directorate Identifier mislocated blade wire mesh. Two comply with this proposed AD. See the 2009–SW–53–AD’’ at the beginning of options are identified in the SSI. One AD docket to examine the draft your comments. We specifically invite option is to conduct an eddy current economic evaluation. comments on the overall regulatory, inspection and the other option is to economic, environmental, and energy conduct a visual inspection after Authority for This Rulemaking aspects of the proposed AD. We will sanding to determine if there is Title 49 of the United States Code consider all comments received by the mislocated wire mesh. specifies the FAA’s authority to issue closing date and may amend the This unsafe condition is likely to exist rules on aviation safety. Subtitle I, proposed AD in light of those or develop on other helicopters of the Section 106, describes the authority of comments. same type design. Therefore, the the FAA Administrator. Subtitle VII, We will post all comments we proposed AD would require inspecting Aviation Programs, describes in more receive, without change, to http:// each blade to determine if the wire detail the scope of the Agency’s www.regulations.gov, including any mesh is mislocated and replacing the authority. personal information you provide. We blade with an airworthy blade if the We are issuing this rulemaking under will also post a report summarizing each wire mesh is mislocated. The actions the authority described in Subtitle VII, substantive verbal contact with FAA would be required to be done by Part A, Subpart III, Section 44701, personnel concerning this proposed following the service information ‘‘General requirements.’’ Under that rulemaking. Using the search function described previously. section, Congress charges the FAA with of our docket Web site, you can find and We estimate that this proposed AD promoting safe flight of civil aircraft in read the comments to any of our would affect 44 helicopters of U.S. air commerce by prescribing regulations dockets, including the name of the registry. There are 486 suspect blades for practices, methods, and procedures

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the Administrator finds necessary for Certification Office, FAA, Attn: Nicholas applications or print-to-PDF format and safety in air commerce. This regulation Faust, Aviation Safety Engineer, Boston not in a scanned format. is within the scope of that authority Aircraft Certification Office, 12 New England • Mail/Hand Delivery: Those unable because it addresses an unsafe condition Executive Park, Burlington, MA 01803, to file electronically may mail or hand- telephone (781) 238–7763, fax (781) 238– deliver comments to: Federal Energy that is likely to exist or develop on 7170, for information about previously products identified in this rulemaking approved alternative methods of compliance. Regulatory Commission, Secretary of the action. (c) The Joint Aircraft System/Component Commission, 888 First Street, NE., (JASC) Code is 6410, Tail Rotor Blades. Washington, DC 20426. List of Subjects in 14 CFR Part 39 Instructions: For detailed instructions Air transportation, Aircraft, Aviation Issued in Fort Worth, Texas, on October 7, 2011. on submitting comments and additional safety, Incorporation by reference, information on the rulemaking process, Lance T. Gant, Safety. see the Comment Procedures Section of Acting Manager, Rotorcraft Directorate, this document. The Proposed Amendment Aircraft Certification Service. FOR FURTHER INFORMATION CONTACT: Accordingly, pursuant to the [FR Doc. 2011–27669 Filed 10–25–11; 8:45 am] authority delegated to me by the BILLING CODE 4910–13–P William Sauer (Technical Information), Administrator, the Federal Aviation Office of Enforcement, Federal Energy Administration proposes to amend part Regulatory Commission, 888 First 39 of the Federal Aviation Regulations DEPARTMENT OF ENERGY Street, NE., Washington, DC 20426, (14 CFR part 39) as follows: (202) 502–6639, Federal Energy Regulatory [email protected]. PART 39—AIRWORTHINESS Commission Christopher Daignault (Legal DIRECTIVES Information), Office of the General 18 CFR Part 35 Counsel, Federal Energy Regulatory 1. The authority citation for part 39 Commission, 888 First Street, NE., continues to read as follows: [Docket No. RM11–17–000] Washington, DC 20426, (202) 502– Authority: 49 U.S.C. 106(g), 40113, 44701. 8286, [email protected]. Enhancement of Electricity Market § 39.13 [Amended] Surveillance and Analysis Through SUPPLEMENTARY INFORMATION: 2. Section 39.13 is amended by Ongoing Electronic Delivery of Data Notice of Proposed Rulemaking From Regional Transmission adding a new airworthiness directive to October 20, 2011. read as follows: Organizations and Independent System Operators 1. In this Notice of Proposed Sikorsky Aircraft Corporation: Docket No. Rulemaking (NOPR), the Federal Energy FAA–2011–1113; Directorate Identifier AGENCY: Federal Energy Regulatory Regulatory Commission (Commission) 2009–SW–53–AD. Commission, DOE. proposes, pursuant to sections 301(b) Applicability: Model S–92A helicopters, ACTION: Notice of proposed rulemaking. and 307(a) of the Federal Power Act tail rotor blade assembly (blade), part (FPA),1 to amend its regulations to numbers (P/N) 92170–11000–044, –045, and SUMMARY: The Federal Energy require each regional transmission –046, with a serial number with a prefix of Regulatory Commission (Commission) ‘‘A111’’ and a number equal to or less than organization (RTO) and independent ‘‘–00585,’’ installed, certificated in any proposes to revise its regulations to system operator (ISO) to electronically category. require each regional transmission deliver to the Commission, on an Compliance: Required as indicated, unless organization (RTO) and independent ongoing basis, data related to the accomplished previously. system operator (ISO) to electronically markets that it administers. Ongoing To detect mislocated blade wire mesh and deliver to the Commission, on an electronic delivery of data relating to to prevent spar delamination, loss of the ongoing basis, data related to the physical and virtual offers and bids, blade tip cap during a lightning strike, blade markets that it administers. Ongoing market awards, resource outputs, imbalance, loss of a blade, and subsequent electronic delivery of data relating to loss of control of the helicopter, do the marginal cost estimates, shift factors, following: physical and virtual offers and bids, financial transmission rights (FTR), (a) Within 60 days, inspect the upper and market awards, resource outputs, internal bilateral contracts, and lower airfoils of each tail rotor blade to marginal cost estimates, shift factors, interchange pricing will facilitate the determine if the wire mesh is mislocated. financial transmission rights, internal Commission’s development and (1) Inspect by using either an eddy current bilateral contracts, and interchange evaluation of its policies and regulations inspection in accordance with paragraphs pricing will facilitate the Commission’s and will enhance Commission efforts to B.(1)(a) through B.(1)(o) or using the hand- development and evaluation of its sanding method and visually inspecting in detect anti-competitive or manipulative policies and regulations and will behavior, or ineffective market rules, accordance with paragraphs B.(2)(a) through enhance Commission efforts to detect B.(2)(d) of Sikorsky Special Service thereby helping to ensure just and Instructions SSI No. 92–021A, Revision A, anti-competitive or manipulative reasonable rates. dated October 21, 2009, except you are not behavior, or ineffective market rules, required to contact or report nonconforming thereby helping to ensure just and I. Background blades to the manufacturer. If you sand and reasonable rates. 2. Wholesale electricity markets have visually inspect and confirm the correct DATES: Comments on the proposed rule witnessed tremendous change in recent location of the wire mesh, touch-up and are due December 27, 2011. years. In the decades after the 1935 repaint the sanded area. Comments, identified by docket enactment of the FPA, the industry was (2) If there is a blade with a mislocated number, may be filed in the following characterized by self-sufficient, wire mesh, before further flight, replace the ways: vertically integrated utilities. Most blade with an airworthy blade. • (b) To request a different method of Electronic Filing through http:// utilities built their own generation, compliance or a different compliance time www.ferc.gov. Documents created transmission, and distribution facilities for this AD, follow the procedures in 14 CFR electronically using word processing 39.19. Contact the Manager, Boston Aircraft software should be filed in native 1 16 U.S.C. 825(b), 825f(a).

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and sold electricity to their own discrimination in transmission access in should voluntarily transfer operating wholesale and retail customers. During order to promote wholesale control of their transmission facilities to this time, the Commission regulated competition. In subsequent orders, the an ISO. Four years later, in Order No. jurisdictional entities’ rates through Commission found that the availability 2000,12 the Commission encouraged the traditional cost-based ratemaking. Cost- of transmission service enhances voluntary formation of RTOs to based rate regulation ensures that rates competition in power markets, by administer the transmission grid on a are just and reasonable by increasing power supply options of regional basis. To date, the Commission administratively determining an entity’s buyers and power sales options of has approved six RTOs and ISOs: PJM cost of providing service. Changes in sellers, and leads to lower rates for Interconnection, L.L.C. (PJM); New York national policy and other forces led to consumers.6 By the mid-1990s, the Independent System Operator, Inc. increased coordination and competition Commission had determined that (NYISO); Midwest Independent in the late 1960s and 1970s,2 and the additional measures were needed to Transmission System Operator, Inc. enactment of the Public Utility address undue discrimination in (Midwest ISO); ISO New England Inc. Regulatory Policies Act (PURPA).3 The transmission access and issued Order (ISO–NE); California Independent 7 8 1980s and early 1990s experienced an Nos. 888 and 889, which required System Operator Corporation (CAISO); increased adoption of market-based ‘‘open access’’ transmission service. In and Southwest Power Pool, Inc. (SPP). ratemaking and wholesale power sales doing so, the Commission explained Together, these six RTOs and ISOs serve competition to promote efficiency and that its action ‘‘remove[s] impediments more than half of the United States’ to lower wholesale power prices.4 to competition in the wholesale power wholesale electricity demand.13 3. National policy fostered further marketplace and * * * bring[s] more 5. The wholesale electricity markets market evolution by encouraging efficient, lower cost power to the 9 operated by Commission-approved increased competition among generators Nation’s electricity customers.’’ The through the Energy Policy Act of 1992 Commission subsequently issued Order RTOs/ISOs have evolved since their (EPAct 1992).5 Specifically, EPAct 1992 No. 890,10 to further remedy undue inception and will likely continue to do eased regulatory restrictions so that discrimination and thereby remove so as advances in technology usher in independent and affiliate generators barriers to competition. additional competing resources, could more easily enter, and compete 4. In addition to addressing undue computational efficiencies, new in, wholesale electricity markets. EPAct discrimination in transmission access, products, and new types of market 1992 also expanded the Commission’s Order No. 888 encouraged the formation participants. Today, for example, market authority to address undue of ISOs. The Commission posited that participants include independent ‘‘ISOs have great potential to assist us generating resources, storage devices, 2 Counted among such forces are the Northeast and the industry to help provide demand response and energy efficiency blackout of 1965 and the responses to perceived regional efficiencies, to facilitate providers, marketers and traders, transmission system insufficiencies, as well as the economically efficient pricing, and, vertically integrated utilities, power subsequent oil crisis of 1973. For a discussion of especially in the context of power pools, marketing administrations, developments following the 1965 blackout, see William F. Fox, Jr., Federal Regulation of Energy to remedy undue discrimination and municipalities and cooperatives, among 749, 755 (1983 & Supp. 1993), and Stephen Breyer mitigate market power.’’ 11 To facilitate others. and Paul W. MacAvoy, The Federal Power ISO formation and foster independent 6. Substantial changes also have Commission and the Coordination Problem in the operation of the transmission grid, the occurred with respect to the manner in Electrical Power Industry, 46 S. Cal. L. Rev. 661, Commission suggested that utilities 661 (1973). which electricity is bought and sold. For 3 Public Utility Regulatory Policies Act of 1978, example, when the Pub. L. No. 95–617, 92 Stat. 3117 (1978) (codified 6 Fla. Mun. Power Agency v. Fla. Power & Light as amended in scattered sections of 16 U.S.C.); see, Co., 65 FERC ¶ 61,125, at 61,615, reh’g dismissed, IntercontinentalExchange (ICE) was e.g., 16 U.S.C. 824a-3, 824i, 824j. 65 FERC ¶ 61,372 (1993), final order, 67 FERC established in 2000, the vast majority of 4 See, e.g., Louisville Gas & Elec. Co., 62 FERC ¶ 61,167 (1994), order on reh’g, 74 FERC ¶ 61,006 electricity sales transacted on ICE ¶ 61,016, at 61,143 & n.16, 61,149 (1993) (accepting (1996). contained requirements for physical 7 Promoting Wholesale Competition Through non-traditional, market-based rates as consistent delivery. Electricity bought or sold with primary regulatory goal of ensuring lowest Open Access Non-Discriminatory Transmission reasonable cost energy to consumers, provided Services by Public Utilities; Recovery of Stranded without requirements for physical service is reliable and the seller demonstrates a lack Costs by Public Utilities and Transmitting Utilities, delivery is commonly referred to as a of market power); Pac. Gas & Elec. Co., 38 FERC Order No. 888, FERC Stats. & Regs. ¶ 31,036 (1996), financial electricity product. Beginning ¶ 61,242, at 61,790 (1987) (accepting proposed order on reh’g, Order No. 888–A, FERC Stats. & competitive rates because ‘‘competition * * * Regs. ¶ 31,048, order on reh’g, Order No. 888–B, 81 in 2004, the volume of financial encourages utilities to make efficient decisions with FERC ¶ 61,248 (1997), order on reh’g, Order No. electricity products bought and sold on a minimum of regulatory intervention [and, 888–C, 82 FERC ¶ 61,046 (1998), aff’d in relevant ICE eclipsed that of electricity bought part sub nom. Transmission Access Policy Study u]ltimately, consumers should benefit from lower and sold on ICE with physical delivery prices as competition improves efficiency.’’), Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff’d modifying on other ground, 47 FERC ¶ 61,121 sub nom. New York v. FERC, 535 U.S. 1 (2002). requirements. The financial electricity (1989), modified, 50 FERC ¶ 61,339 (1990), 8 Open Access Same-Time Information System product volumes on ICE also surpassed modified sub nom. W. Sys. Power Pool, 55 FERC and Standards of Conduct, Order No. 889, FERC electricity volumes reported to the Stats. & Regs. ¶ 31,035 (1996), order on reh’g, Order ¶ 61,099, at 61,319 (addressing applicant’s failure Commission through Electric Quarterly to eliminate anticompetitive effects by mitigating No. 889–A, FERC Stats. & Regs. ¶ 31,049, reh’g market power), granting stay, 55 FERC ¶ 61,154, denied, Order No. 889–B, 81 FERC ¶ 61,253 (1997). reh’g granted in part, 55 FERC ¶ 61,495 (1991), 9 Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 12 Regional Transmission Organizations, Order modified, 59 FERC ¶ 61,249 (1992); Pub. Serv. Co. 31,634. No. 2000, 65 FR 809 (Jan. 6, 2000), FERC Stats. & of New Mexico, 25 FERC ¶ 61,469, at 62,038 (1983) 10 Preventing Undue Discrimination and Regs. ¶ 31,089 (1999), order on reh’g, Order No. (averring that ‘‘competition penalizes a seller that Preference in Transmission Service, Order No. 890, 2000–A, FERC Stats. & Regs. ¶ 31,092 (2000), aff’d is inefficient or has an unreasonable pricing FERC Stats. & Regs. ¶ 31,241, order on reh’g, Order sub nom. Pub. Util. Dist. No. 1 of Snohomish strategy[; consequently,] consumers * * * benefit No. 890–A, FERC Stats. & Regs. ¶ 31,261 (2007), County, Washington v. FERC, 272 F.3d 607 (D.C. because the improvements in efficiency lead to order on reh’g, Order No. 890–B, 123 FERC ¶ 61,299 Cir. 2001). lower prices.’’); see also Heartland Energy Servs., (2008), order on reh’g, Order No. 890–C, 126 FERC 13 See ISO/RTO Council, Progress of Organized Inc., 68 FERC ¶ 61,223 (1994) (reviewing early ¶ 61,228 (2009), order on clarification, Order No. Wholesale Electriciy Markets in North America 1 Commission decisions granting market-based rate 890–D, 129 FERC ¶ 61,126 (2009). (2007), http://www.isorto.org/atf/cf/%7B5B4E85C6- authority). 11 Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 7EAC-40A0-8DC3-003829518EBD%7D/ 5 Pub. L. No. 102–486, 106 Stat. 2776 (1992). 31,652; see also id. at 31,730–32. IRC_State_of_the_Markets_Report_103007.pdf.

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Reports (EQR) in several markets.14 evaluate market developments and to physical and virtual offers and bids, Given that financial electricity products identify and deter market abuses and market awards, resource outputs, commonly settle using published prices manipulation. In Order No. 2000, the marginal cost estimates, shift factors, from Commission-jurisdictional Commission identified market FTRs, internal bilateral contracts, and markets, changes in the prices of monitoring as a basic function of an interchange pricing. To facilitate such physical electricity products impact the RTO.21 The Commission refined its ongoing, electronic delivery, the values of both physical and financial approach to MMUs in a 2005 policy Commission proposes that each RTO electricity products. statement and in Order No. 719.22 In the and ISO use automated electronic 7. Recognizing the importance of 2005 Policy Statement, the Commission procedures to provide this data. information relating to market trading outlined tasks for MMUs to perform in 11. The Commission is statutorily and market oversight, the Commission order to enhance the competitive obligated to ensure that sales of issued Order No. 2001 15 and Order No. structure of RTO/ISO markets.23 electricity in wholesale markets are 697,16 establishing reporting Subsequently, in Order No. 719, the made at just and reasonable rates,28 and requirements for entities selling under Commission further clarified to address market manipulation in market-based rates. As one keen requirements for MMU functions, connection with the purchase or sale of observer stated, in this regard, independence, and information electricity subject to the Commission’s ‘‘[i]nformation is the key to a viable sharing.24 jurisdiction.29 Toward that end, section electricity market and to preventing 9. The Commission has acknowledged 301(b) of the FPA provides that the market manipulation.’’ 17 In addition, that MMUs perform a vital and Commission shall at all times have the Energy Policy Act of 2005 (EPAct necessary function in market access to and the right to inspect and 2005) 18 gave the Commission expanded oversight 25 but that they do not examine all accounts and records of authority to address market supplant the Commission’s authority.26 public utilities.30 In this NOPR, and manipulation,19 including the ability to Rather, MMUs are designed to provide pursuant to its authority under section assess civil fines and seek criminal the Commission with an additional 301(b), the Commission proposes to penalties.20 means of detecting market power seek ongoing electronic delivery of data 8. Independent market monitoring by abuses, market design flaws, and including accounts and records of the RTO/ISO market monitoring units opportunities for improvements in RTOs/ISOs, which are public utilities. (MMU) is an important means to market efficiency.27 12. Moreover, the Commission also II. Discussion has authority pursuant to section 307(a) 14 See Federal Energy Regulatory Commission, of the FPA to investigate any facts, 2008 State of the Markets Report (2009), available 10. In this NOPR, the Commission conditions, practices, or matters it may at http://www.ferc.gov/market-oversight/st-mkt-ovr/ proposes to revise its regulations to 2008-som-final.pdf. We also note that financial deem necessary or proper to determine electricity products may be transacted (1) Through require each RTO and ISO to whether any person, electric utility, exchanges besides ICE (e.g., NYMEX and Nodal electronically deliver to the transmitting utility, or other entity may Exchange), (2) by voice brokers, (3) bilaterally, or Commission, on an ongoing, non-public have violated or might violate the FPA (4) by using other means. basis, data related to the markets that it 15 Revised Public Utility Filing Requirements, or the Commission’s regulations, or to Order No. 2001, FERC Stats. & Regs. ¶ 31,127, reh’g administers; namely, data relating to aid in the enforcement of the FPA or the denied, Order No. 2001–A, 100 FERC ¶ 61,074, Commission regulations, or to obtain reh’g denied, Order No. 2001–B, 100 FERC 21 Prior to this first generic consideration of information about wholesale power ¶ 61,342, order directing filing, Order No. 2001–C, MMUs in Order No. 2000, the Commission 101 FERC ¶ 61,314 (2002), order directing filing, addressed market monitoring in connection with sales or the transmission of power in Order No. 2001–D, 102 FERC ¶ 61,334, order individual RTO/ISO proposals. See Pac. Gas & Elec. interstate commerce.31 refining filing requirements, Order No. 2001–E, 105 Co., 77 FERC ¶ 61,265 (1996), order on reh’g, 81 13. As markets continue to evolve FERC ¶ 61,352 (2003), order on clarification, Order FERC ¶ 61,122 (1997), order on clarification, 83 with increased levels of sophistication, No. 2001–F, 106 FERC ¶ 61,060 (2004), order FERC ¶ 61,033 (1998) (requiring the ISO to file a revising filing requirements, Order No. 2001–G, 120 detailed monitoring plan and listing minimum the Commission must continue to FERC ¶ 61,270, order on reh’g and clarification, elements for such a plan); Pennsylvania-New Jersey- evaluate the type of data necessary to Order No. 2001–H, 121 FERC ¶ 61,289 (2007), order Maryland Interconnection, 81 FERC ¶ 61,257 (1997) ensure just and reasonable rates. The revising filing requirements, Order No. 2001–I, (requiring PJM Interconnection, L.L.C. to develop a Commission’s market monitoring and FERC Stats. & Regs. ¶ 31,282 (2008). market monitoring program to evaluate market 16 Market-Based Rates for Wholesale Sales of power and market design flaws). surveillance capabilities and associated Electric Energy, Capacity and Ancillary Services by 22 Market Monitoring Units in Regional data requirements must keep pace with Public Utilities, Order No. 697, FERC Stats. & Regs. Transmission Organizations and Independent market developments and evolve along ¶ 31,252, clarified, 121 FERC ¶ 61,260 (2007), order System Operators, 111 FERC ¶ 61,267 (2005) (2005 with the markets. Further, the on reh’g, Order No. 697–A, FERC Stats. & Regs. Policy Statement); Wholesale Competition in ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on Regions with Organized Electric Markets, Order No. Commission’s evaluation of the market reh’g, Order No. 697–B, FERC Stats. & Regs. 719, FERC Stats. & Regs. ¶ 31,281 (2008), order on rules, regulations, and policies should ¶ 31,285 (2008), order on reh’g, Order No. 697–C, reh’g, Order No. 719–A, FERC Stats. & Regs. be informed by the data collection FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, ¶ 31,292 (2009), order on reh’g, Order No. 719–B, proposed herein. Electronic delivery of Order No. 697–D, FERC Stats. & Regs. ¶ 31,305 129 FERC ¶ 61,252 (2009). (2010), aff’d sub nom. Montana Consumer Counsel 23 2005 Policy Statement, 111 FERC ¶ 61,267 at the types of data proposed herein will v. FERC, No. 08–71827, 2011 U.S. App. LEXIS P 2. help to bring the Commission’s access to 20724 (9th Cir. Oct. 13, 2011). In its decision 24 Specifically, MMU functions consist of RTO/ISO data in sync with the types upholding Order No. 697, the Ninth Circuit Court evaluating existing and proposed market rules, tariff and levels of activity in those markets of Appeals noted that monitoring must be provisions, and market design elements and accompanied by enforcement because ‘‘[w]ithout recommending changes, if applicable; reviewing and help to ensure that rates are just and enforcement, there is little reason to believe that and reporting on the performance of wholesale reasonable. sellers will police themselves.’’ Montana Consumer markets; and identifying and notifying the 14. Most of the data discussed in this Counsel, 2011 U.S. App. LEXIS 20724 at *19 n.5. Commission of behavior that may require NOPR are already collected and stored 17 Charles H. Koch, Jr., Collaborative Governance: investigation. See Order No. 719, FERC Stats. & Lessons for Europe from U.S. Electricity Regs. ¶ 31,281 at P 354. by the RTOs/ISOs in order to administer Restructuring, 61 Admin. L. Rev. 71, 97 (2009). 25 See, e.g., Order No. 719, FERC Stats. & Regs. 18 Public Law No. 109–58, 119 Stat. 594 (2005). ¶ 31,281 at P 314. 28 See 16 U.S.C. 824d, 824e. 19 See, e.g., 16 U.S.C. 824v. 26 Order No. 2000, FERC Stats. & Regs. ¶ 31,089 29 See 16 U.S.C. 824v. 20 See 16 U.S.C. 825o (criminal penalties); 16 at 31,156–57. 30 16 U.S.C. 825(b). U.S.C. 825o–1 (civil fines). 27 Id. 31 16 U.S.C. 825f(a).

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their markets. To the extent that an marginal cost data, which approximate capability of given transmission RTO/ISO does not already collect generators’ costs under different facilities. A shift factor reflects the specific data, the Commission is not conditions.33 positive or negative percentage effect proposing to require either the 17. Similar to the process for that a one-megawatt change in collection of such data from market submitting energy offers and bids, generation output or demand will have participants or its electronic delivery to market participants with their own on an identified constraint. These shift the Commission. The Commission also supply resources or with supply factors are used to create a dispatch proposes that key identifiers and other resources under contract also submit strategy that is consistent with physical descriptive details necessary to offers to provide ancillary services and and other reliability constraints. In other understand the data be included in the capacity services.34 These offers words, shift factors allow RTOs/ISOs to data electronically delivered to the typically indicate a price at which a manage transmission constraints Commission. Finally, the Commission market participant is willing to provide through congestion charge price signals proposes that each RTO/ISO the service and, like the energy supply that relate to a generator’s or load’s electronically deliver the data to the offers discussed above, are subject to influence on a specific constraint. Commission using a common transfer mitigation when appropriate. 21. Prices in the RTO/ISO day-ahead method and format (i.e., Secure File 18. Entities with or without physical markets and real-time balancing markets Transfer Protocol and XML), which are assets or load obligations may also can be volatile depending on market described below. The Commission is not submit ‘‘virtual’’ supply offers and conditions. Products designed to hedge proposing that each RTO/ISO aggregate demand bids in the RTO/ISO day-ahead RTO/ISO price volatility have provided or materially modify the data prior to markets. These virtual offers and bids valuable tools for RTO/ISO market electronic delivery to the Commission.32 contribute to price formation in RTO/ participants to secure predictable 15. This NOPR proposes to require an ISO markets. Further, entities located revenue streams or reduce price risk automated data delivery process, in outside of the RTO/ISO footprint may associated with generation costs. These part, to minimize any burden on RTOs/ submit supply offers and demand bids price hedging tools have evolved ISOs. The Commission currently can in the form of interchange offers and concurrently with changes in wholesale request this data from individual RTOs bids. electricity markets. and ISOs on an ad hoc basis. Such 19. The RTOs/ISOs match the above- 22. In the RTO/ISO markets, market recurrent, periodic data requests may described inputs through an intricate participants can limit price risk using require more Commission and RTO/ISO process designed to use the lowest-cost several tools, notably, virtual offers and resources than the proposed electronic resources to meet demand.35 This bids, FTRs, and internal bilateral delivery of this data using an automated process yields pricing signals through contracts. Virtual offers and bids process. locational marginal pricing (LMP) that (collectively, virtuals) allow market 16. Although the six RTOs/ISOs have determine which supply offers and participants the opportunity, among developed different wholesale demand bids are selected (and which other things, to transfer price risk electricity market designs, there are would also inform long-term planning, between day-ahead and real-time many similarities in the data that they e.g., decisions on whether to enter and markets within an RTO/ISO. When use to administer these markets. exit markets). Supply offers that are virtuals are scheduled in the day-ahead Generally speaking, market participants selected are required to provide a market, the financial commitment is with their own supply resources or with specific amount of service. For example, established at published day-ahead supply resources under contract submit resources that are selected in the day- prices, and virtuals are automatically energy supply offers indicating the price ahead energy market will be given an liquidated with the opposite buy/sell at which they are willing to supply energy market award that specifies the position, in most cases at real-time various quantities of energy. Load- amount of energy a particular resource prices. Virtuals are not backed by serving entities submit demand bids is financially obligated to supply. These physical assets. If a load-serving entity indicating the price at which they are market awards are determined by each determines that it might need to willing to buy various quantities of resource’s supply offer and the purchase supply from real-time energy. The supply offers pass through corresponding day-ahead LMP. Finally, markets,36 the load-serving entity could market power screens. These screens are the RTO/ISO provides dispatch use virtuals to ‘‘lock-in’’ a day-ahead used to determine whether the resources instructions for resources in real time. price. can affect the market price and whether Real-time compensation is determined 23. FTRs provide market participants the offers should be mitigated. If an by the dispatch instructions, metered with a mechanism to hedge energy supply offer triggers the output, and the corresponding LMP. transmission costs under LMP-based application of mitigation, it is replaced 20. LMP is comprised of three market designs. In general, load-serving with a mitigated energy supply offer. components: The system-wide price of entities in RTOs/ISOs are allocated Generally, mitigated energy supply energy, transmission line losses, and the either FTRs or transmission rights offers are calculated using estimated congestion charge. The congestion convertible into FTRs. This allocation is charge component of LMP is calculated often based on usage during an 32 The Commission is currently considering using shift factors when modeled flows historical period. Allocated FTRs are providing an XML Schema Definition (XSD) that are above the intended physical limited to load-serving entities and to describes the structure of the XML document to be electronically delivered to the Commission. XSD those who funded construction of defines those elements, attributes, data types, and 33 The estimated marginal cost data the specific transmission facilities. Other any default or fixed values in the XML. Depending Commission proposes to receive through this NOPR FTRs are auctioned, and such FTRs on how the requested data is stored by each RTO/ do not include individual generators’ actual costs, generally can be purchased by ISO, some data transformation may be required to revenues, or profits. prepare XML that is consistent with the XSD. For 34 We note that currently CAISO and SPP do not creditworthy entities. Moreover, FTRs example, one RTO/ISO might store dates in MM– administer a centralized capacity market. DD–YYYY format while the rest use YYYY–MM– 35 We note that other inputs, including generation 36 A load-serving entity might determine such a DD format. As such, an XSD might specify that capabilities and other system costs, inter alia, are need to purchase supply, for example, because of dates in the XML be electronically delivered to the used by RTOs/ISOs to arrive at the lowest-cost potential weather-related events or generator Commission in YYYY–MM–DD format. solution. malfunction.

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can be resold outside of the RTO/ISO higher than the agreed upon price, the does not seek to displace or modify any auction and allocation procedures. generation owner pays the difference to of the existing market monitoring Transactions occurring outside of the the counter-party to the swap but still functions performed by MMUs. Nor do RTO/ISO allocation and auction receives the agreed upon price.39 This we intend our proposal to be perceived procedures are commonly referred to as effectively guarantees a predictable as an implicit criticism of the MMUs’ secondary market transactions. revenue stream to the generation owner. performance. Instead, this data will help 24. Finally, internal bilateral contracts RTO/ISO posted prices are one of the the Commission detect anti-competitive allow market participants to hedge commonly referenced settlement values or manipulative behavior, or ineffective energy costs under LMP-based market used in electricity swaps. market rules, and thus help ensure just designs. In RTOs/ISOs, market 27. To the extent that any market and reasonable rates. participants can enter into bilateral participant is willing to manipulate the 30. Among other objectives, the agreements and use the RTO/ISO to market, that market participant would Commission will use the data it perform settlement functions. These have an incentive to manipulate RTO/ proposes to receive as part of automated internal bilateral contracts typically rely ISO prices that are used to settle values screens and other analyses designed to on a bilaterally negotiated price rather for electricity products, including detect attempts to manipulate RTO/ISO than the potentially more volatile RTO/ financial products such as electricity pricing for the purpose of benefiting ISO LMP-based energy price, and they swaps. The likelihood of an attempt at products that settle using RTO/ISO allow market participants the market manipulation can be reduced if pricing and to detect abuses involving opportunity to transfer risks relating to the perceived cost of manipulation interchange transactions. Supply offer, energy costs among market participants. exceeds the perceived benefit. For demand bid, virtual, and FTR data will Thus, a load-serving entity may enter example, a market participant may wish assist the Commission in understanding into an internal bilateral contract with a to drive up an RTO/ISO price because how market participants are positioning supplier to settle its energy costs at a that market participant also holds an themselves in RTO/ISO markets. For predetermined rate rather than at the electricity swap that benefits from a example, market participants attempting applicable LMP. If the market higher RTO/ISO price. In that vein, the to move RTO/ISO settlement pricing participant reports this internal bilateral market participant may offer supply into might offer supply into the RTO/ISO contract to the RTO/ISO, the RTO/ISO the RTO/ISO market at levels above its market at uncompetitive prices. would then account for this agreement own marginal costs, driving up an RTO/ Likewise, market participants could in its settlement process. ISO price by requiring a higher-priced target specific LMP prices using virtual 25. RTO/ISO price-hedging products unit to be selected. That market offers and bids. Because congestion have been created outside of the RTO/ participant would receive less revenue impacts are often spread across many ISO markets as well. Electricity futures from the RTO/ISO due to the lost sales price nodes (and result in many were first traded on NYMEX in March opportunity from its own higher-priced different LMPs) through shift factors, 1996.37 Electricity futures, which are offer not being selected. However, in these virtual offers and bids need not be traded on organized exchanges, and this example, the market participant placed at the specific price node for electricity forwards, which are traded may be able to more than offset the which a market participant might be outside of organized exchanges, are reduction in revenue through the benefit attempting to move the LMP. Estimated transactions that typically specify a of its electricity swap associated with marginal cost and shift factor data will quantity of physical electricity to be the higher RTO/ISO price. enhance the Commission’s ability to delivered at a specific time and place in 28. Given the history of electricity identify such behavior that may be the future at an agreed-upon price.38 A markets it regulates, the Commission designed to impact RTO/ISO pricing. generation owner can sell output from expects that such markets will continue Moreover, interchange pricing data will its facility at a pre-determined price by to evolve, that new physical and assist the Commission’s efforts to entering into futures or forward financial products will be formed, and identify anomalous or uneconomic transactions even as the RTO/ISO price that increasingly complex manipulative electricity interchange schedules; varies. or other anti-competitive strategies may electricity schedules between markets 26. In recent years, other products for be created. that are not consistent with pricing hedging RTO/ISO prices have signals could be a source of market developed, such as electricity swaps. A. Market Monitoring and Surveillance inefficiency or raise other anti- Swaps are similar to electricity futures 29. To keep pace with market competitive concerns. and forwards, but swaps are financial developments, the Commission is 31. Securing data concerning the transactions that do not require physical proposing to establish ongoing, markets that the RTOs/ISOs administer delivery. Electricity swaps can be electronic delivery of data from each is part of the Commission’s broader bought or sold at a given ‘‘fixed’’ price RTO and ISO to enhance its market effort to enhance its market monitoring and subsequently settle at a ‘‘floating’’ monitoring and surveillance efforts. By and surveillance capabilities. published daily electricity price; this is seeking electronic delivery of the data Specifically, in a recently issued NOPR typically referred to as a ‘‘fixed-for- outlined in this NOPR, the Commission on Commission access to electronic tag floating’’ swap. Swaps can act as a (e-Tag) data,40 the Commission hedge when used alongside physical 39 For example, Generator sells to the RTO/ISO at proposed to make e-Tag data available electricity sales, by guaranteeing the a market-based rate, which varies according to the to the Commission to assist in market. As a hedge, Generator sells a financial swap generation owner an agreed upon price, to Counter-party at $30/MWh. If the published monitoring the market and preventing notwithstanding fluctuation in the electricity price that Generator receives on day one manipulation, among other things. In published electricity price. Specifically, is $20/MWh, Counter-party pays Generator the yet another NOPR, the Commission if the published daily electricity price is difference, i.e., $10 ($30 minus $20). Thus, proposed to require additional contract Generator receives the agreed upon price of $30/ MWh. Conversely, if the published electricity price and transaction data from those who file 37 S.J. Deng and S.S. Oren, Electricity derivatives that Generator receives on day two is $45/MWh, and risk management, 31 Energy 940, 943 (2006), Generator owes Counter-party the difference, i.e., 40 Availability of E–Tag Information to available at http://www.sciencedirect.com. $15 ($45 minus $30). Thus, Generator again Commission Staff, Notice of Proposed Rulemaking, 38 See id. at 942–43. receives the agreed upon price of $30/MWh. FERC Stats. & Regs. ¶ 32,675 (2011).

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EQRs and to extend the EQR filing will enhance the Commission’s ongoing that a dispatched resource is expected to requirements to wholesale market efforts to assess the performance of produce in real-time) for energy or participants which fall outside the different market designs and rules. ancillary services, or whether resources Commission’s FPA section 205 35. In seeking electronic delivery of are operating at self-scheduled output jurisdiction.41 The Commission stated this data, the Commission emphasizes levels, and measured output levels. that these proposals would strengthen that it does not seek to displace existing 6. Marginal cost estimates—The the Commission’s ability to identify MMU efforts to evaluate market rules Commission is proposing that RTOs/ potential exercises of market power or and market designs nor is it proposing ISOs provide their data on marginal cost manipulation. We believe that the same to modify any of the market monitoring estimates; such estimates are typically is true here. functions performed by MMUs. Rather, generated for the potential replacement 32. Utilizing the data the Commission the Commission is seeking to augment of supply offers in market power proposes to receive in this NOPR and the assessments currently being mitigation procedures. This dataset the two NOPRs addressed above could performed by MMUs, thus strengthening would include all marginal cost greatly enhance the Commission’s the Commission’s regulatory capabilities estimates that have been developed, and market monitoring and surveillance through the ongoing electronic delivery not just those estimates that were used capabilities. The data will permit the of RTO/ISO market data. to generate mitigated supply offers. The Commission to improve its screening of C. Requested Data Commission is seeking just the resulting market participants for illicit behavior, marginal cost estimates themselves, making such conduct more difficult to 36. As part of this rulemaking, the however, and is not proposing that mask. In addition, the data the Commission proposes to require RTOs/ISOs provide the inputs that Commission proposes to collect in these ongoing electronic delivery of, the data allow for calculation of those estimates. NOPRs could provide a better picture of (e.g., the information to be included in Further, the Commission is not seeking legitimate market activity and lessen the the datasets) described below. The other operating information regarding possibility that market monitoring and Commission invites comment on these individual generators’ actual costs, surveillance screens will result in error. data requirements: revenues, or profits. 1. Supply offers and demand bids for B. Commission Policies and Regulations energy and ancillary services—The 7. Day-ahead shift factors—The Commission is proposing that RTOs/ Commission is proposing that RTOs/ 33. In overseeing wholesale electricity ISOs provide their data on shift factors markets, the Commission evaluates, in ISOs provide their data on supply offers and demand bids submitted to RTO/ISO calculated for use in the day-ahead response to submissions or on its own market. This would include generation motion, existing market designs and the markets. This dataset would include all offers and bids for energy and ancillary shift factors, which are factors to be effectiveness of market rules. The applied to a generator’s expected change Commission proposes to use RTO/ISO services. This dataset would also include offers and bids submitted for in output to determine the amount of market data to more effectively carry out flow contribution that that change in these functions. Electronic delivery of interchange transactions, as well as those submitted without economic output will impose on an identified this data will enable the Commission to transmission facility or flowgate, and better identify ineffective market rules consideration, i.e., self schedules. 2. Virtual offers and bids—The load shift factors, which are factors to be and better inform Commission policies Commission is proposing that RTOs/ applied to a load’s expected change in and decision-making, and thus help ISOs provide their data on virtual demand to determine the amount of prevent anti-competitive behavior and supply offers and virtual demand bids flow contribution that that change in ensure just and reasonable rates. submitted to RTO/ISO markets. demand will impose on an identified 34. We believe that electronic delivery 3. Energy/ancillary service awards— transmission facility or flowgate. This of RTO/ISO market data will provide The Commission is proposing that dataset would not be limited to binding the Commission with empirical RTOs/ISOs provide their data on market constraints, but should also include all information that will augment ongoing awards for energy and ancillary shift factors calculated to address non- industry outreach in determining the services. This dataset would include the binding constraints. effectiveness of the Commission- quantity and price of all market awards 8. FTR data—The Commission is approved market rules and the for energy and ancillary services. The proposing that RTOs/ISOs provide their efficiency of existing market designs in dataset would also identify resources data on FTR transactions that may not producing just and reasonable rates. that are self-scheduled. be publicly posted in all RTO/ISO Electronic delivery of the market data 4. Capacity market offers, markets. Specifically, the Commission is sought would allow the Commission to designations, and prices—For RTOs/ proposing that RTOs/ISOs provide data perform better ongoing analysis as ISOs with centralized capacity markets, detailing how all FTRs and allocated markets evolve and new resources begin the Commission is proposing to require rights were acquired, either through participating in these markets. For RTOs/ISOs to provide their data on RTO/ISO allocation or auction example, the market data sought should capacity offers as well as capacity procedures; data detailing whether the enable the Commission to assess both market outcomes or designations. This acquired allocation positions were the scheduling practices of renewable dataset would identify capacity converted from positions that collect resources and how renewable energy resources, the amount of procured auction revenue into positions that schedules compare with actual real-time capacity, and the applicable capacity collect congestion revenue; and data performance. Because of its unique market price. detailing secondary market transactions position, the Commission will be able to 5. Resource output—The Commission to the extent that they are available to perform such analysis across the RTO/ is proposing that RTOs/ISOs provide the RTO/ISO. ISO markets. This cross-market analysis their data on resource output data used 9. Internal Bilateral Contracts—The in market settlements. This dataset Commission is proposing that RTOs/ 41 Electricity Market Transparency Provisions of would include details used in market ISOs provide their data on the Section 220 of The Federal Power Act, Notice of Proposed Rulemaking, FERC Stats. & Regs. ¶ 32,676 settlements, including RTO/ISO settlement of internal bilateral contracts (2011). dispatch instructions (i.e., the output for energy.

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10. Pricing data for interchange the data (after they have been delivered the preferred format to use when transactions—The Commission is to the Commission), the RTO/ISO would electronically delivering RTO/ISO data. proposing that RTOs/ISOs provide their be expected to electronically deliver the Accordingly, we seek comment on this data on pricing information for corrected data to the Commission issue. scheduled interchanges. Scheduled within seven days after the correction 43. In regard to the data delivery interchanges include any transaction has been made. The Commission invites method, the Commission is proposing between two or more Balancing comments with respect to the timeframe that each RTO and ISO use a secure data Authority Areas. To enhance the in which the data described in this delivery method to provide data to the Commission’s market monitoring and NOPR should be electronically Commission due to the commercially- surveillance efforts, the Commission is delivered to the Commission. sensitive nature of the market data proposing that eTag IDs be included, 39. The Commission proposes to described in this NOPR. Specifically, when applicable, in addition to other locate the requirement to electronically the Commission is proposing that any interchange pricing details and deliver this data on an ongoing basis RTO/ISO market data be electronically transaction identification. within section 35.28(g) of our delivered using the Secure File Transfer 37. The data that the Commission is regulations. Further, the Commission Protocol (SFTP). Delivery by SFTP is proposing to receive electronically in proposes to direct each RTO/ISO to similar to delivery by File Transfer this NOPR are limited to physical and submit a compliance filing amending its Protocol or ‘‘FTP,’’ a widely-used file- virtual offers and bids, market awards, open access transmission tariff to reflect sharing protocol; except that all resource outputs, marginal cost this requirement within forty-five days communications transmitted using estimates, shift factors, FTRs, internal after the effective date of any final rule SFTP are encrypted. Access to the bilateral contracts, and interchange in this proceeding. server where the data is electronically pricing. These datasets would include delivered will only be granted to each D. Data Formatting and Web-Based descriptive information such as market applicable RTO and ISO and to the Delivery participant names, unique identifiers, Commission. pricing points, and other information 40. In order to facilitate the 44. Accordingly, and as part of our that the Commission considers Commission’s efforts described above, consideration of the range of possible necessary and appropriate to the Commission is proposing to require formats and delivery methods that understand and analyze the data each RTO and ISO to use consistent RTOs/ISOs may use to electronically described in this NOPR. Markets are not formatting and delivery methods to deliver data to the Commission, the static, however, and, as markets electronically deliver the data described Commission invites comments with continue to evolve, the Commission in this NOPR to the Commission. respect to efficient and secure ways to may initiate a new rulemaking process Consistent formatting and delivery provide the Commission with RTO/ISO in the future to reassess the data methods will enable the Commission to data. The Commission also invites necessary for its market monitoring and develop routine data procedures to link comment on the time and resources that surveillance efforts and for its policy RTO/ISO and other market data, thus may be needed by RTOs/ISOs for the and decision-making needs. enabling automated analytic techniques. initial implementation and ongoing 38. The Commission proposes that 41. In regard to data formatting, the compliance with the proposed RTOs/ISOs be required to electronically Commission is proposing to require that requirements of this rule. Finally, the deliver the data discussed in this NOPR any data outlined in this NOPR be in an Commission invites comment on to the Commission within seven days XML format that is consistent for all whether a phased implementation after each RTO/ISO creates the datasets RTOs/ISOs when electronically approach should be undertaken, and, if in a market run or otherwise. For delivered to the Commission. As stated so, what a potential phased approach example, day-ahead offers and bids, above, the Commission is not proposing should entail. market awards, resource outputs, day- that each RTO/ISO materially modify ahead shift factors, internal bilateral E. Non-Public Data the data prior to electronic delivery to contracts, and day-ahead interchange the Commission.42 45. Much of the information that the pricing data would be required to be 42. In Order No. 714,43 the Commission expects to receive in this electronically delivered within seven Commission adopted XML format for proposal is, by its nature, commercially- days after the completion of each day- entities to use when making tariff sensitive.45 Disclosure of such ahead market run. Real-time offers and related filings, based upon industry information could result in competitive bids and real-time interchange pricing agreement.44 harm to market participants and the data would be required to be XML is also commonly market as a whole.46 Accordingly, the electronically delivered within seven used by RTOs/ISOs to deliver data to market participants through Open days after the completion of each real- 45 In the past, the Commission has granted time market run. For data that are Access Same-Time Information Systems (OASIS) and other purposes. Data not requests for privileged or confidential treatment of updated less frequently, including similar non-public data. See, e.g., N.Y. Indep. Sys. capacity market results, estimated formatted in XML may also be extracted Operator, Inc., 131 FERC ¶ 61,169, at P 15 (2010) marginal costs, and FTR data, each directly from a database into an XML- (granting such treatment for data relating to specific generator or other equipment details, transmission RTO/ISO would be expected to formatted file using automated procedures. However, the Commission system information, bidding strategies, generator electronically deliver that data within reference levels, generator costs, guarantee seven days after it is created or updated also recognizes that XML, which was payments, and the associated relevant time by the RTO/ISO. For the initial delivery adopted by the industry as the most periods); see also So. Cal. Edison Co., 135 FERC effective format to use when ¶ 61,201, at P 20; Hydrogen Energy Cal. LLC, 135 of data under this proposal, however, FERC ¶ 61,068, at P 25 (2011); N.Y. Indep. Sys. the Commission proposes that each electronically filing tariffs, may not be Operator, Inc., 130 FERC ¶ 61,029, at P 3 (2010). RTO/ISO would be required to 46 Section 301(b) of the FPA, 16 U.S.C. 825(b), 42 electronically deliver all such data forty- See supra P 14. provides that no member, officer, or employee of 43 Electronic Tariff Filings, Order No. 714, 73 FR the Commission may divulge any fact or five days after the effective date of any 57515, FERC Stats. & Regs. ¶ 31,276 (2008). information that may come to his knowledge during final rule in this proceeding. Finally, if 44 Order No. 714, FERC Stats. & Regs. ¶ 31,276 at the course of examination of books or other the RTO/ISO makes later corrections to P 30. Continued

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Commission proposes that the data outside of a rulemaking proceeding with be collected, and any suggested methods sought in this proceeding is to be kept similar protections for confidential or for minimizing respondents’ burden, non-public and not be made publicly otherwise protected information. including the use of automated 47 available, except as may be directed III. Information Collection Statement information techniques. Respondents by the Commission, or a court with subject to the filing requirements of this appropriate jurisdiction.48 47. The collections of information rule will not be penalized for failing to contained in this proposed rule have respond to these collections of 46. To the extent the data collected been submitted to the Office of pursuant to this rulemaking are used, information unless the collections of Management and Budget (OMB) for information display a valid OMB for example, to support proposed review under section 3507(d) of the Control number. market rule changes, the analysis relied Paperwork Reduction Act of 1995, 44 upon by the Commission will be U.S.C. 3507(d). The Commission solicits 48. The proposed rule does not publicly available except that comments on the Commission’s need for require market participants other than confidential market information and this information, whether the the RTOs/ISOs to report information to other protected or confidential information will have practical utility, the Commission. information will remain non-public. the accuracy of the provided burden 49. The Commission’s estimated Also, the Commission may direct its estimates, ways to enhance the quality, reporting burden related to the proposed staff to publicly issue a staff report utility, and clarity of the information to rule in Docket RM11–17–000 follow.

Implementing burden Annual recurring operating Average annual burden burden (implementation cost averaged over 3 yrs.) Data collection, pro- Number of Burden hrs. posed FERC–921 respondents per Cost per Burden hrs. Cost per Burden hrs. respondent respondent per respondent for all Cost for all respondent respondents respondents

Compliance filing ...... 6 7 $1,750 ...... 14 $3,500 Web-Based Delivery .... 6 1,040 100,864 40 $3,879 2,320 225,003

Grand Total, Aver- age Annual Esti- mates ...... 6 ...... 2,334 228,503

50. The Commission recognizes that development, testing and production of those proposed in this NOPR to deliver there will be an initial implementation an automated process to provide the data to their MMUs. burden associated with providing the Commission with the data described in 51. For the recurring effort involved Commission with RTO/ISO data. This this NOPR. In this regard, though, RTO/ in electronically delivering RTO/ISO includes submitting a compliance filing ISO markets have already developed data to the Commission, the to the Commission, which the capabilities necessary to handle RTO/ Commission anticipates that the Commission estimates as a burden of ISO data in an automated manner. For additional burden associated with this 7 hours per RTO/ISO, and instance, through their Open Access rule will be minimal. Any recurring implementing a process to automatically Same-time Information Systems burden would be associated with upload data to an SFTP site for (OASIS), RTOs/ISOs already make addressing updates to RTO/ISO data as Commission use (including certain market data publically available the data that they process changes and development, testing and production). in XML format using automated due to occasional errors in the data The Commission estimates a burden of procedures. Likewise, some RTOs/ISOs handling or data upload process. 1040 hours per RTO/ISO for the have developed procedures similar to

accounts, except as may be directed by the this stage of the proceeding is whether UNITIL has 48 We note that the Freedom of Information Act Commission or by a court. presented sufficient evidence of PSNH’s costs so (FOIA) allows persons to file requests to obtain data 47 We note that, notwithstanding that the that we may assess whether a trial-type, evidentiary from the Commission. However, commercially- Commission may have data available to it, hearing is warranted.’’); Houlton Water Co. v. Me. sensitive data, like that described in this NOPR, is complainants still must bear the burden of making Pub. Serv. Co., 55 FERC P 61,037, at 61,110 (1991) covered by exemption 4 of FOIA, which protects a prima facie case; complainants must do more than (‘‘Maine Public correctly states that a customer ‘‘trade secrets and commercial or financial make unsubstantiated allegations. Interstate Power seeking a section 206 investigation of existing rates information obtained from a person [that is] & Light Co. v. ITC Midwest, LLC, 135 FERC must provide some basis to question the privileged or confidential.’’ 5 U.S.C. 552(b)(4) ¶ 61,162, at P 18 (2011); see also UNITIL Power reasonableness of the overall rate level, taking into (2006), amended by OPEN Government Act of 2007, Corp. v. Pub. Serv. Co. of N.H., 62 FERC P 61,055, account changes in all cost components and not just Pub. L. No. 110–175, 121 Stat. 2524 (2007); accord at 61,287 (1993) (‘‘The question we must answer at [the item being challenged].’’). 18 CFR 388.107(d).

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Information Collection Costs: The changing possibilities for anti- that will have significant economic Commission has estimated the cost of competitive or manipulative behavior impact on a substantial number of small compliance per RTO/ISO to be $102,614 and to better inform Commission entities. The RFA mandates in the initial year of implementation policies and regulations, and thus to consideration of regulatory alternatives and $3,879 in subsequent years. The ensure that rates are just and reasonable. that accomplish the stated objectives of Commission expects that the The Commission has assured itself, by a rule and that minimize any significant compliance filing will be completed by means of its internal review, that there economic impact on a substantial RTO/ISO legal staff and has estimated is specific, objective support for the number of small entities. The Small an hourly rate at $250/hour. The burden estimate associated with the Business Administration’s (SBA) Office Commission estimates that a variety of information requirements. of Size Standards is responsible for the staff, including legal, database 54. Interested persons may obtain definition of a small business.55 The administrators and IT and information information on the reporting SBA has established a size standard for security specialists, will be required to requirements by contacting the Federal utilities, stating that a firm is small if, electronically deliver to the Commission Energy Regulatory Commission, Office including its affiliates, it is primarily the RTO/ISO data described in this of the Executive Director, 888 First engaged in the transmission, generation NOPR. The Commission estimated the Street, NE., Washington, DC 20426 and/or distribution of electric energy for average hourly cost for this task to be [Attention: Ellen Brown, e-mail: sale and its total electric output for the $96.98/hour (including legal staff at [email protected], phone: (202) preceding twelve months did not exceed $250/hour, information systems 502–8663, fax: (202) 273–0873]. four million megawatt hours.56 RTOs manager at $105.35/hour, database 55. Comments concerning the and ISOs are not small entities, and they administrator at $55.61/hour, and information collections proposed in this are the only entities impacted directly information security analyst at $57.67/ NOPR and the associated burden by this proposed rule. hour).49 estimates, should be sent to the 58. CAISO is a nonprofit organization Title: Proposed FERC–921.50. Commission in this docket and may also with over 54,000 megawatts of capacity Action: Proposed collection. be sent to the Office of Management and and over 25,000 circuit miles of OMB Control No.: To be determined. Budget, Office of Information and transmission lines. Respondents for this Rulemaking: Regulatory Affairs, Washington, DC 59. NYISO is a nonprofit organization RTOs and ISOs. 20503 [Attention: Desk Officer for the that oversees wholesale electricity Frequency of Information: Initial Federal Energy Regulatory markets serving 19.2 million customers. implementation, compliance filing, and Commission]. For security reasons, NYISO manages a nearly 11,000-mile automated daily updates. comments should be sent by e-mail to network of high-voltage transmission 52. Necessity of Information: As OMB at the following e-mail address: lines. _ wholesale electricity markets continue oira [email protected]. Please 60. PJM is comprised of more than to develop and evolve, new reference FERC–921 and the docket 700 members including power opportunities arise for anti-competitive number of this proposed rulemaking generators, transmission owners, or manipulative behavior. The (Docket No. RM11–17–000) in your electricity distributers, power marketers, Commission’s market monitoring and submission. and large industrial customers and surveillance capabilities and associated IV. Environmental Analysis serves 13 states and the District of data requirements must keep pace with Columbia. market developments and evolve along 56. The Commission is required to 61. SPP is comprised of 63 members with the markets. The data discussed in prepare an Environmental Assessment serving 6.2 million households in nine this NOPR will allow the Commission to or an Environmental Impact Statement states and has 48,930 miles of more effectively identify and address for any action that may have a transmission lines. significant adverse effect on the human 62. Midwest ISO is a nonprofit such behavior; to identify ineffective 51 market rules; to better inform environment. The Commission has organization with over 145,000 Commission policies and regulations; categorically excluded certain actions megawatts of installed generation. and thus to help ensure just and from these requirements as not having a Midwest ISO has over 57,600 miles of significant effect on the human transmission lines and serves 13 states reasonable rates. 52 53. Internal Review: The Commission environment. The actions proposed and one Canadian province. has made a preliminary determination here fall within a categorical exclusion 63. ISO–NE is a regional transmission that the proposed revisions are in the Commission’s regulations, i.e., organization serving six states in New necessary to keep pace with ever- they involve information gathering, England. The system is comprised of analysis, and dissemination.53 more than 8,000 miles of high-voltage 49 Hourly average wage is an average and was Therefore, environmental analysis is transmission lines and over 300 calculated using Bureau of Labor Statistics (BLS), unnecessary and has not been generators. Occupational Employment Statistics data for May performed. 64. The Commission believes this 2010 (at http://www.bls.gov/oes/) for the database administrator and information security analysts. V. Regulatory Flexibility Act proposed rule will not have a significant The average hourly figure for legal staff and Certification economic impact on a substantial information systems manager is a composite from number of small entities, and therefore BLS and other resources. The following weightings 57. The Regulatory Flexibility Act of no regulatory flexibility analysis is 54 were applied to estimate the average hourly cost: 1980 (RFA) generally requires a required. Legal staff (1⁄6), information systems manager (1⁄6), description and analysis of final rules database administrator (1⁄3), and information VI. Comment Procedures security analyst (1⁄3). 51 50 OATT compliance filings (like the one-time Regulations Implementing the National 65. The Commission invites interested compliance filing here) are normally included Environmental Policy Act, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 persons to submit comments on the under FERC–516 (OMB Control No. 1902–0096). matters and issues proposed in this However, the reporting requirements (including the (1987). compliance filing) contained in this proposed rule 52 18 CFR 380.4. in Docket No. RM11–17 will be covered by a 53 See 18 CFR 380.4(a)(5). 55 13 CFR 121.101. proposed FERC–921. 54 5 U.S.C. 601–612. 56 13 CFR 121.201 (Sector 22, Utilities).

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notice to be adopted, including any List of Subjects in 18 CFR Part 35 SUMMARY: Under section 215 of the related matters or alternative proposals Electric power rates, Electric utilities, Federal Power Act, the Federal Energy that commenters may wish to discuss. Reporting and recordkeeping Regulatory Commission (Commission) Comments are due December 27, 2011. requirements. proposes to approve Reliability Comments must refer to Docket No. Standards PRC–006–1 (Automatic RM11–17–000, and must include the By direction of the Commission. Underfrequency Load Shedding) and commenter’s name, the organization Commissioner Spitzer is not participating. EOP–003–2 (Load Shedding Plans), they represent, if applicable, and their Nathaniel J. Davis, Sr., developed and submitted to the address. Deputy Secretary. Commission for approval by the North 66. The Commission encourages American Electric Reliability In consideration of the foregoing, the comments to be filed electronically via Corporation (NERC), the Electric Commission proposes to revise Chapter the eFiling link on the Commission’s Reliability Organization certified by the I, Title 18 of the Code of Federal Web site at http://www.ferc.gov. The Commission. The proposed Reliability Regulations to read as follows: Commission accepts most standard Standards establish design and word processing formats. Documents PART 35—FILING OF RATE documentation requirements for created electronically using word SCHEDULES AND TARIFFS automatic underfrequency load processing software should be filed in shedding programs that arrest declining native applications or print-to-PDF 1. The authority for part 35 continues frequency and assist recovery of format and not in a scanned format. to read as follows: frequency following system events Commenters filing electronically do not Authority: 16 U.S.C. 791a–825r, 2601– leading to frequency degradation. The need to make a paper filing. 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. Commission also proposes to approve 67. Commenters that are not able to the related Violation Risk Factors and 2. In § 35.28, paragraphs (g)(4) file comments electronically must send Violation Severity Levels, through (g)(6) are redesignated as an original copy of their comments to: implementation plan, and effective date paragraphs (g)(5) through (g)(7) and a Federal Energy Regulatory Commission, proposed by NERC. Secretary of the Commission, 888 First new paragraph (g)(4) is added to read as DATES: Comments are due December 27, Street, NE., Washington, DC 20426. follows: 68. All comments will be placed in 2011. § 35.28. Non-discriminatory open access ADDRESSES: Comments, identified by the Commission’s public files and may transmission tariff. be viewed, printed, or downloaded docket number, may be filed in the * * * * * following ways: remotely as described in the Document • Availability section below. Commenters (g) Tariffs and operations of Electronic Filing through http:// on this proposal are not required to Commission-approved independent www.ferc.gov. Documents created serve copies of their comments on other system operators and regional electronically using word processing commenters. transmission organizations. software should be filed in native * * * * * applications or print-to-PDF format and VII. Document Availability (4) Electronic delivery of data. Each not in a scanned format. • 69. In addition to publishing the full Commission-approved regional Mail/Hand Delivery: Those unable text of this document in the Federal transmission organization and to file electronically may mail or hand- Register, the Commission provides all independent system operator must deliver comments to: Federal Energy interested persons an opportunity to electronically deliver to the Regulatory Commission, Secretary of the view and/or print the contents of this Commission, on an ongoing basis and in Commission, 888 First Street, NE., document via the Internet through the a form and manner acceptable to the Washington, DC 20426. Commission’s Home Page (http:// Commission, data related to the markets Instructions: For detailed instructions www.ferc.gov) and in the Commission’s that the regional transmission on submitting comments and additional Public Reference Room during normal organization or independent system information on the rulemaking process, business hours (8:30 a.m. to 5 p.m. operator administers. see the Comment Procedures Section of this document. Eastern time) at 888 First Street, NE., * * * * * Room 2A, Washington, DC 20426. [FR Doc. 2011–27626 Filed 10–25–11; 8:45 am] FOR FURTHER INFORMATION CONTACT: 70. From the Commission’s Home BILLING CODE 6717–01–P Stephanie Schmidt (Technical Page on the Internet, this information is Information), Office of Electric available on eLibrary. The full text of Reliability, Division of Reliability this document is available on eLibrary DEPARTMENT OF ENERGY Standards, Federal Energy Regulatory both in PDF and Microsoft Word format Commission, 888 First Street, NE., for viewing, printing, and/or Federal Energy Regulatory Washington, DC 20426, (202) 502–6568, downloading. To access this document Commission [email protected]. in eLibrary, type the docket number Matthew Vlissides (Legal excluding the last three digits of this 18 CFR Part 40 Information), Office of the General document in the docket number field. Counsel, Federal Energy Regulatory 71. User assistance is available for [Docket No. RM11–20–000] Commission, 888 First Street, NE., eLibrary and the Commission’s Web site Washington, DC 20426, (202) 502–8408, Automatic Underfrequency Load during normal business hours from the [email protected]. Shedding and Load Shedding Plans Commission’s Online Support at 202– SUPPLEMENTARY INFORMATION: Reliability Standards 502–6652 (toll free at 1–866–208–3676) 1. Under section 215 of the Federal or e-mail at [email protected], October 20, 2011. Power Act (FPA),1 the Commission or the Public Reference Room at 202– AGENCY: Federal Energy Regulatory proposes to approve proposed 502–8371, TTY 202–502–8659. E-mail Commission. Reliability Standards PRC–006–1 the Public Reference Room at ACTION: Notice of Proposed Rulemaking. [email protected]. 1 16 U.S.C. 824o (2006).

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(Automatic Underfrequency Load frequency reflects how well load and 7. Once a frequency threshold 12 is Shedding) and EOP–003–2 (Load generation are balanced—if there is more identified, the balance of resources and Shedding Plans). The proposed load than generation at any moment, demand to be maintained to prevent the Reliability Standards were developed frequency drops below 60 Hz, and it rises system from reaching that frequency and submitted for approval to the above that level if there is more generation threshold is determined. UFLS than load. By dropping load to match Commission by the North American available generation within the island, UFLS programs use validated models of the Electric Reliability Corporation (NERC), is a safety net that helps to prevent the power system, which consist of which the Commission certified as the complete blackout of the island, which mathematical representations of static Electric Reliability Organization (ERO) allows faster system restoration afterward. (e.g., transformers and transmission responsible for developing and UFLS is not effective if there is electrical lines) and dynamic (e.g., generators and enforcing mandatory Reliability instability or voltage collapse within the motor loads) components of the power Standards.2 The proposed Reliability island.6 system aggregated to simulate how the Standards establish design and 5. UFLS programs are designed for system performs during system documentation requirements for each defined area or system, and they operations.13 Models are validated, automatic underfrequency load are commonly implemented with typically, by comparing actual system shedding (UFLS) programs, which are devices installed on the distribution operations against simulated system meant to arrest declining frequency and side of the power system.7 Factors operations to ensure the simulated assist recovery of frequency following considered in developing a UFLS system operations are within a defined underfrequency events and provide last program include: (1) Underfrequency set and acceptable margin of tolerance resort system preservation measures. point, (2) minimum amount of load to relative to actual system operations. 2. The Commission proposes to shed, and (3) what load and at what Inaccurate power system models may approve the related Violation Risk locations to shed. result in a UFLS program that does not Factors (VRFs) and Violation Severity perform as desired, thus undermining Levels (VSLs), implementation plan, 1. Underfrequency Set Point the reliability objective of UFLS. and effective date proposed by NERC. 8. A UFLS program is designed to 6. The underfrequency set point is the The Commission also proposes to shed sufficient load to arrest system frequency at which a specified load will approve the retirement of the currently frequency decline without shedding too disconnect from the system in a UFLS effective Reliability Standards PRC– much load such that frequency program.8 Separately, generators have 007–0, PRC–009–0, and EOP–003–1, increases above 60 Hz. If a UFLS their own underfrequency set points, and the NERC-approved Reliability program is not effective, either because which will disconnect them from the Standard PRC–006–0. of invalid power system models or system if the frequency drops to a 3. The Commission seeks comments miscoordination of the UFLS program certain value, thus protecting them from from NERC and other interested persons with entities inside and outside of the damage.9 Underfrequency set points for on specific issues concerning the intended island, it may not achieve the load shedding are set above the proposed Reliability Standards. reliability objective of preventing frequencies at which generators cascading outages. This, in turn, could I. Background disconnect.10 This is done to prevent further undermine reliability and losing additional resources that would A. Underfrequency Load Shedding recovery of the Bulk-Power System exacerbate the imbalance between during a system emergency.14 4. An interconnected electric power resources and demand, resulting in system must balance load and further frequency declines. UFLS 2. Minimum Amount of Load to Shed generation in order to maintain programs initiate at a specified point to 9. The amount of load to disconnect frequency within a reliable range.3 The shed the first load block, and if is the amount of load shed at each balance between generation and load necessary additional load blocks at underfrequency set point, typically within an interconnected electric power other lower set points, to arrest system expressed in megawatts or percent of system is shown in the frequency of the frequency decline prior to the loss of system peak load or both.15 system.4 Underfrequency protection additional resources.11 schemes are drastic measures employed 3. What Load to Shed if the system frequency falls below a 6 U.S.-Canada Power System Outage Task Force, 10. In addition to determining the 5 specified value. The Blackout Report Final Report on the August 14, 2003 Blackout in the amount of load to disconnect based on provides the following explanation: United States and Canada: Causes and Recommendations at 92–93 (2004) (Blackout validated power system models, a UFLS [A]utomatic under-frequency load- Report). program identifies what loads to shed shedding (UFLS) is designed for use in 7 UFLS programs are designed to maintain a extreme conditions to stabilize the balance balance between resources and demand in a defined 12 A frequency threshold is a pre-determined between generation and load after an area (e.g., Interconnection, Regional Entity area, or frequency that UFLS programs are designed to electrical island has been formed, dropping planning coordinator area). avoid reaching, as the system may become unstable enough load to allow frequency to stabilize 8 In Order No. 693–A, the Commission directed at this frequency. within the island. All synchronous NERC to collect the frequency and magnitude of 13 See, e.g., PowerTech Labs Inc., 2010 Evaluation generators in North America are designed to load in UFLS systems. Mandatory Reliability and Assessment of Southwest Power Pool (SPP) Standards for the Bulk-Power System, Order No. operate at 60 cycles per second (Hertz) and Under-Frequency Load Shedding Scheme, available 693, FERC Stats. & Regs. ¶ 31,242, order on reh’g, at http://www.spp.org/publications/SPP-2010- Order No. 693–A, 120 FERC ¶ 61,053, at P 145 UFLS-Final.pdf. 2 North American Electric Reliability Corp., 116 (2007). NERC submitted a response to this request 14 For example, if not enough load is shed to FERC ¶ 61,062, order on reh’g & compliance, 117 on February 1, 2008 that included the arrest frequency decline, additional resources may FERC ¶ 61,126 (2006), aff’d sub nom. Alcoa, Inc. underfrequency set points and magnitude of load disconnect from the Interconnection to prevent v. FERC, 564 F.3d 1342 (DC Cir. 2009). shed in each Regional Entity. NERC, Response to damage to generators, and thus system frequency 3 Electric Power Research Institute, EPRI Power FERC Supplemental Request for Information on the will continue to collapse. Conversely, if too much Systems Dynamics Tutorial, Chapter 4 at page 4–78 Status of Underfrequency Load Shedding, Docket load is shed, the system frequency could exceed 60 (2009), available at http://www.epri.com (EPRI No. RM06–16–000 (filed Feb. 1, 2008). Hz also causing resources to disconnect from the Tutorial). 9 EPRI Tutorial at page 4–81. Interconnection to prevent damage to generators. 4 Id. 10 Id. EPRI Tutorial at page 4–78. 5 Id. 11 Id. at P 4–78, 4–79. 15 EPRI Tutorial at page 4–78.

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and their locations. Therefore, in remand PRC–006–0 until the ERO proposed Reliability Standards except deciding what specific loads to shed, submitted the additional information.21 Parts 4.1 through 4.6 of Requirement R4 consideration is given to whether the of PRC–006–1. With respect to Parts 4.1 D. Currently Effective Reliability load is critical (e.g., hospitals, police through 4.6 of Requirement R4 of PRC– Standards stations, or fire stations). These loads 006–1, NERC requests an effective date would typically not be included in a 1. PRC–007–0 of one year following the receipt of UFLS program. 14. Reliability Standard PRC–007–0 generation data as would be required in draft Reliability Standard PRC–024–1 23 B. Mandatory Reliability Standards requires transmission owners, transmission operators, load serving but no sooner than one year following 11. Section 215 of the FPA requires a entities (LSEs) and distribution the first day of the first calendar quarter Commission-certified ERO to develop providers to provide, and annually after applicable regulatory approvals of mandatory and enforceable Reliability update, their underfrequency data to PRC–006–1. Standards, which are subject to facilitate the regional reliability A. PRC–006–1 Commission review and approval. Once organization’s maintenance of the UFLS 18. Proposed Reliability Standard approved, the Reliability Standards may program database. PRC–006–1 would apply to planning be enforced by the ERO, subject to 2. PRC–009–0 coordinators, ‘‘UFLS entities,’’ 24 and Commission oversight, or by the transmission owners that ‘‘own 16 15. Reliability Standard PRC–009–0 Commission independently. Elements identified in the UFLS requires that the performance of a UFLS 12. Pursuant to section 215 of the program established by the Planning system be analyzed and documented FPA, the Commission established a Coordinators.’’ NERC states that the following an underfrequency event by process to select and certify an ERO 17 primary purpose of the proposed requiring the transmission owner, and, subsequently, certified NERC as the Reliability Standard is the establishment transmission operator, LSE and ERO.18 On March 16, 2007, the of design and document requirements distribution provider to document the Commission issued Order No. 693, for UFLS programs that arrest declining deployment of their UFLS systems in approving 83 of the 107 Reliability frequency and assist recovery of accordance with the regional reliability Standards filed by NERC, including frequency following system events organization’s program. Reliability Standards PRC–007–0, PRC– leading to frequency degradation. 009–0, and EOP–003–1.19 The 3. EOP–003–1 19. NERC states that PRC–006–1 satisfies the Commission’s criteria, set Commission neither approved nor 16. Reliability Standard EOP–003–1 forth in Order No. 672, for determining remanded NERC-approved Reliability addresses load shedding plans and whether a proposed Reliability Standard Standard PRC–006–0 in Order No. requires that balancing authorities and 20 is just, reasonable, not unduly 693. transmission operators operating with discriminatory or preferential and in the insufficient transmission and/or C. NERC–Approved Reliability Standard public interest.25 generation capacity have the capability 1. PRC–006–0 20. According to NERC, PRC–006–1 is and authority to shed load rather than designed to achieve a specific reliability 13. NERC-approved Reliability risk a failure of the system. It includes goal by establishing design and Standard PRC–006–0 addresses the requirements to establish plans for documentation requirements for development of a regional UFLS automatic load shedding for automatic UFLS programs to arrest program that is used as a last resort to underfrequency or undervoltage, declining frequency, assist recovery of preserve islanding operation following a manual load shedding to respond to frequency following underfrequency major system event on the Bulk-Power real-time emergencies, and events and provide last resort system System that could otherwise cause the communication with other balancing preservation measures. NERC contends island system frequency to collapse. authorities and transmission operators. that PRC–006–1 contains a technically PRC–006–0 requires regional reliability II. Proposed Reliability Standards sound method to achieve its reliability organizations to develop, coordinate, goal by establishing a framework for 17. On March 31, 2011, NERC filed a document and assess UFLS program developing, designing, assessing and petition seeking Commission approval design and effectiveness at least every coordinating UFLS programs, and that of proposed Reliability Standards PRC– five years. In Order No. 693, the PRC–006–1 is clear and unambiguous 006–1 and EOP–003–2 and requesting Commission determined neither to regarding what is required and who is the concurrent retirement of the approve nor remand this ‘‘fill-in-the- required to comply with the Reliability currently effective Reliability Standards blank’’ Reliability Standard because the Standard. PRC–007–0, PRC–009–0, and EOP–003– regional procedures had not been 21. NERC states that PRC–006–1 does 1 and NERC-approved Reliability submitted, and the Commission held not reflect ‘‘best practices’’ without Standard PRC–006–0.22 NERC requests that it would not propose to approve or regard to implementation cost.26 NERC an effective date for PRC–006–1 and contends that it achieves a specific EOP–003–2 of one year following the 16 reliability goal of establishing design See 16 U.S.C. 824o(e). first day of the first calendar quarter 17 Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the after applicable regulatory approvals 23 PRC–024–1 addresses ‘‘Generator Performance Establishment, Approval and Enforcement of with respect to all Requirements of the During Frequency and Voltage Excursions’’ and is Electric Reliability Standards, Order No. 672, FERC currently being developed in the NERC standard Stats. & Regs. ¶ 31,204, order on reh’g, Order No. 21 Id. P 1477, 1479. drafting process. 672–A, FERC Stats. & Regs. ¶ 31,212 (2006). 22 NERC Petition at 1. The proposed new 24 PRC–006–1 defines ‘‘UFLS entities’’ as: ‘‘All 18 North American Electric Reliability Corp., 116 Reliability Standards are not attached to the NOPR. entities that are responsible for the ownership, FERC ¶ 61,062, order on reh’g & compliance, 117 They are, however, available on the Commission’s operation, or control of UFLS equipment as FERC ¶ 61,126 (2006), aff’d sub nom., Alcoa, Inc. eLibrary document retrieval system in Docket No. required by the UFLS program established by the v. FERC, 564 F.3d 1342 (D.C. Cir. 2009). RM11–20–000 and are available on the ERO’s Web Planning Coordinators.’’ 19 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at site, http://www.nerc.com. Reliability Standards 25 Order No. 672, FERC Stats. & Regs. ¶ 31,204 at P 603. approved by the Commission are not codified in the P 323–37. 20 Id. P 1479. CFR. 26 NERC Petition at 24.

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and documentation requirements for Requirement R5: Requires each bulk electric system islanding event automatic UFLS programs to arrest planning coordinator to coordinate its occurred that also included the area(s) declining frequency and assist recovery UFLS design with all other planning or portions of area(s) of other planning following underfrequency events, and coordinators whose areas or portions of coordinator(s) in the same islanding that UFLS programs provide last resort whose areas are also part of the same event and that resulted in system system preservation measures by identified island through specific frequency excursions below the shedding load during system actions identified in Requirement R5. initializing set points of the UFLS disturbances that result in substantial Requirement R6: Requires each program, to coordinate its event imbalance between load and generation. planning coordinator to maintain a assessment (in accordance with NERC also maintains that PRC–006–1 UFLS database containing data Requirement R11) with all other does not aim at a ‘‘lowest common necessary to model its UFLS program planning coordinators whose areas or denominator’’ but instead establishes for use in event analyses and portions of whose areas were also common performance characteristics assessments of the UFLS program at included in the same islanding event by that all UFLS programs must meet to least once each calendar year, with no either: (i) Conducting a joint event effectively protect Bulk-Power System more than 15 months between assessment per Requirement R11 among reliability.27 maintenance activities. the planning coordinators whose areas 22. NERC states that PRC–006–1 does Requirement R7: Requires each or portions of whose areas were not include any differentiation in planning coordinator to provide its included in the same islanding event; or requirements based on entity size, UFLS database to other planning (ii) conducting an independent event though it provides the opportunity for coordinators within its Interconnection assessment per Requirement R11 that planning coordinators to consider input within 30 calendar days of request. reaches conclusions and from smaller entities when developing Requirement R8: Requires each UFLS recommendations consistent with those the UFLS program. NERC further entity to provide data to its planning of the event assessments of the other explains that PRC–006–1 would apply coordinator(s) according to the format planning coordinators whose areas or throughout North America, with and schedule specified by the planning portions of whose areas were included variances for entities within the Western coordinator(s) to support maintenance in the same islanding event; or (iii) Electricity Coordinating Council of the UFLS database. conducting an independent event Requirement R9: Requires each UFLS (WECC) and the Quebec assessment per Requirement R11 and entity to provide automatic tripping of Interconnections. where the assessment fails to reach load in accordance with the UFLS 23. As proposed by NERC, PRC–006– conclusions and recommendations program design and schedule for 1 has 14 requirements and 19 sub- consistent with those of the event application determined by its planning requirements, summarized as follows: assessments of the other planning coordinator(s) in each planning Requirement R1: Requires each coordinators whose areas or portions of coordinator area in which it owns planning coordinator to develop and whose areas were included in the same assets. document criteria to identify portions of islanding event, identifying differences Requirement R10: Requires each in the assessments that likely resulted in the bulk electric system that may form transmission owner to provide islands. the differences in the conclusions and automatic switching of its existing recommendations and report these Requirement R2: Requires each capacitor banks, transmission lines, and differences to the other planning planning coordinator to identify the reactors to control overvoltage as a coordinators whose areas or portions of islands to serve as a basis for designing result of underfrequency load shedding whose areas were included in the same its UFLS program. Sub-Requirements if required by the UFLS program and islanding event and to the ERO. 2.1, 2.2, and 2.3 serve as a checklist of schedule for application determined by Requirement R14: Requires the items that the entity must consider the planning coordinator(s) in each planning coordinator to respond to when identifying islands. planning coordinator area in which the written comments submitted by UFLS Requirement R3: Requires each transmission owner owns transmission. entities and transmission owners within planning coordinator to develop a UFLS Requirement R11: Requires each its planning coordinator area following program, including notification of and a planning coordinator, in whose area a a comment period and before finalizing schedule for implementation by the bulk electric system islanding event its UFLS program, indicating in the UFLS entities within its area, that meets results in system frequency excursions written response to comments whether the specific performance characteristics below the initializing set points of the changes will be made or reasons why set forth in sub-Requirements 3.1 UFLS program, to conduct and changes will not be made to the UFLS through 3.3 in simulations of document an assessment of the event program, including a schedule for underfrequency conditions resulting within one year of event actuation that implementation (sub-Requirement 14.1) from an imbalance of up to 25 percent evaluates the performance of the UFLS and the UFLS design assessment (sub- within the identified island. equipment (sub-Requirement 11.1), and Requirement 14.2). Requirement R4: Requires each the effectiveness of the UFLS program B. EOP–003–2 planning coordinator to conduct and (sub-Requirement 11.2). document a UFLS design assessment at Requirement R12: Requires each 24. Proposed Reliability Standard least once every five years that planning coordinator, in whose EOP–003–2 would apply to balancing determines through dynamic simulation islanding event assessment authorities and transmission operators. whether the UFLS program design (Requirement R11) UFLS program NERC states that EOP–003–2 makes meets the performance characteristics in deficiencies are identified, to conduct minimal changes to EOP–003–1 by Requirement R3 for each island and document a UFLS design removing references to UFLS, which identified in Requirement R2, with sub- assessment to consider the identified NERC describes as redundant in light of Requirements 4.1 through 4.7 specifying deficiencies within two years of event proposed Reliability Standard PRC– items that the simulation must model. actuation. 006–1, and instead focuses proposed Requirement R13: Requires each Reliability Standard EOP–003–2 on 27 Id. at 26. planning coordinator, in whose area a undervoltage conditions.

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III. Discussion A. Impact of Resources Not Connected 30. The performance characteristics to Bulk Electric System Facilities identified in Requirement R3 provide 25. Pursuant to section 215(d)(2) of 27. As described above, UFLS acceptable parameters for developing the FPA, the Commission proposes to UFLS programs that are designed to approve Reliability Standard PRC–006– programs are designed to maintain balance between resources and load in restore balance between resources and 1 and EOP–003–1 as just, reasonable, a defined area (e.g., an Interconnection, load. However, the Commission is not unduly discriminatory or Regional Entity area, or planning concerned that generation resources or preferential, and in the public interest. coordinator area). When a resource is facilities that are not connected to the The Commission believes that the UFLS lost, load exceeds supply causing bulk electric system may not be program addressed in the proposed frequency to decrease below its considered during the development of Reliability Standards is important to scheduled value (e.g., 60 Hz in the UFLS programs. arresting declining frequency and United States). Conversely, a loss of 31. The Commission seeks comments assisting recovery of frequency load or excess supply can result in from the ERO and other interested following system events that lead to higher frequencies than scheduled, persons as to whether and how all system instability, which can result in a resulting in an overfrequency condition. resources required for the reliable blackout. The Commission finds that the As a last resort, UFLS programs are operation of the bulk electric system, proposed Reliability Standards are initiated during extreme including resources not connected to necessary for reliability because UFLS is underfrequency conditions to bulk electric system facilities, are used in extreme conditions to stabilize reestablish balance by shedding load at considered in the development of UFLS the balance between generation and predetermined frequencies and times to programs under Requirements R3 and load after an electrical island has been prevent system-wide blackouts. R4. formed, dropping enough load to allow 28. Requirement R2 of PRC–006–1 B. Validation of Power System Models frequency to stabilize within the island. requires planning coordinators to Reliability Standard PRC–006–1, in identify islands to serve as a basis for 32. Power systems consist of static conjunction with the conforming designing UFLS programs. Requirement components (e.g., transformers and changes to EOP–003–2, provides last R3 addresses performance transmission lines) and dynamic resort Bulk-Power System preservation characteristics for UFLS programs. components (e.g., generators and motor measures by establishing the first Requirement R4 requires each planning loads). Mathematical representations of national Reliability Standard of coordinator to conduct and document these components are aggregated to common performance characteristics the assessment of its UFLS design and create an area’s power system model. that all UFLS programs must meet. In determine if the UFLS program meets Power system planners 28 and system addition, the Commission proposes to the performance characteristics in operators base decisions on simulations, approve the related VRFs and VSLs, Requirement R3 for each island both static and dynamic, using area implementation plan, and effective date identified in Requirement R2. power system models to meet proposed by NERC. Finally, the 29. The simulations outlined in requirements in both Commission- Commission proposes to approve the Requirement R4 all concern individual approved planning and operational retirement of the currently effective generating units greater than 20 MVA Reliability Standards.29 Reliability Standards PRC–007–0, PRC– gross nameplate rating or generating 33. Requirements R4 and R11 of PRC– 009–0, and EOP–003–1, and the NERC- plants/facilities greater then 75 MVA 006–1 require applicable entities to use approved Reliability Standard PRC– ‘‘connected to the bulk electric system.’’ dynamic simulations to design and 006–0. However, some generation that meets assess the effectiveness of UFLS the 20 MVA and 75 MVA criteria is not 26. The Commission addresses or programs. As previously discussed, connected to bulk electric system UFLS programs are designed to provide seeks comments from the ERO and other facilities. Accordingly, those resources interested persons on aspects of the last resort system preservation measures not connected to bulk electric system by: (1) Arresting declining frequency; proposed Reliability Standards. facilities would not be modeled Specifically, we address or seek and (2) assisting recovery of frequency pursuant to Requirement R4. However, following underfrequency events. comments on the following issues: (A) a resource not connected to the bulk Impact of resources not connected to the Dynamic simulations that do not electric system may serve load designed accurately represent the power system bulk electric system; (B) validation of to be shed in a UFLS program. The power system models used to simulate can result in an UFLS program that is Commission is concerned that failure to ineffective. ULFS programs; (C) scope of UFLS account for resources not connected to events assessments; (D) impact of the bulk electric system in a planning 34. The Commission believes that the generator owner trip settings outside of coordinator’s UFLS program could UFLS program design requirements the UFLS program; (E) UFLS program result in the planning coordinator being established in Requirement R2 and the coordination with other protection unaware of how such resources respond required assessments established in systems; (F) identification of island to underfrequency conditions. If the Requirements R4 and R11 of PRC–006– boundaries in UFLS programs; (G) planning coordinator is unaware of how 1 are generally acceptable and include automatic load shedding in PRC–006–1 these facilities have responded, it may improvements above the current and manual load shedding in EOP–003– plan to shed more load than is required Reliability Standards. Accordingly, the 2; (H) elimination of balancing authority for an area’s frequency to return to Commission believes that the language responsibilities in EOP–003–2; and (I) normal. This could lead to an in the proposed Requirements is the ‘‘Lower VSL’’ for Requirement R8 unintended overfrequency condition if appropriate. and the ‘‘Medium’’ VRF for the plan is carried out in the operating Requirement R5 of PRC–006–1. These timeframe. These conditions, in turn, 28 Power system planners may include functional entities such as transmission planners and planning issues also apply to the corresponding could lead the plan to violate the coordinators. Requirements in the requested regional performance characteristics specified in 29 See, e.g., Reliability Standards MOD–010–0, variance for WECC in PRC–006–1. Requirement R3. MOD–012–0 and TOP–002–2a, Requirement R19.

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C. UFLS Event Assessments event assessment per Requirement R11 identified in the event assessment under that reaches conclusions and Requirement R11. 1. Assessments in the Absence of Island recommendations consistent with other Formation D. Generator Owner Trip Settings planning coordinators whose areas were Outside of the UFLS Program 35. Requirement R11 of PRC–006–1 affected; or (3) conducting an requires planning coordinators to independent event assessment per 42. Requirements 4.1 through 4.7 of conduct assessments after a ‘‘BES Requirement R11 and where the Reliability Standard PRC–006–1 are islanding event results in system assessment fails to reach conclusions intended to capture the effects of frequency excursion below the and recommendations consistent with generators that trip prior to UFLS initializing set points of the UFLS those of the other planning coordinators initiation. As previously discussed, a program.’’ The Commission is whose areas were affected by the same generator trip normally creates an concerned whether the phrase ‘‘BES islanding event, identify differences in imbalance between resources and load islanding event’’ could be interpreted to the assessments and report these causing system frequency to decline. mean that a planning coordinator only differences to the other affected Some generators may need to has to assess an event if it meets both planning coordinators. The Commission disconnect from the system prior to of the following requirements: (1) seeks comments from the ERO and other reaching underfrequency set points to System frequency excursions fall below interested persons as to whether the protect their components from the initializing set point for UFLS; and differences should be subsequently permanent damage. If this loss occurs (2) bulk electric system islands form reported to the reliability coordinator during a system event, the generator can within the Interconnection. If the for resolution in the event that the no longer provide a response to assist in frequency falls below the initializing process does not resolve differences in arresting frequency decline. This UFLS set point but islands do not form the assessments. resource loss also counteracts the (e.g., because the event was not severe 39. The Commission believes that response provided by other resources to enough to isolate portions of the Requirements R5 and R13 provide arrest frequency decline, increasing the Interconnection, or UFLS or other flexibility in coordinating UFLS design likelihood of instability, uncontrolled protection systems failed to operate programs and event assessments among separation, and cascading outages. properly to form islands), an assessment planning coordinators whose areas fall of the performance of the UFLS program 43. We agree that planning within the same island or whose areas for this event is still useful because it coordinators should consider generators are affected by the same event. can determine if the UFLS program that trip prior to underfrequency set Accordingly, the Commission believes operated as expected. points when developing their UFLS 36. The Commission seeks that the language in the proposed programs. The Commission seeks clarification from the ERO regarding Requirements is appropriate. comments from the ERO and other what actions must planning 3. Assessment Timeline for Completion interested persons on how generation coordinators take under Requirement losses outside of the UFLS set points R11 if an event results in system 40. Requirement R11 of Reliability (i.e., generators having trip settings prior frequency excursions falling below this Standard PRC–006–1 requires a to the UFLS underfrequency set points) initializing set point for UFLS but planning coordinator to perform an should be accounted for in UFLS without the formation of a bulk electric island event assessment within one year programs (e.g., generator owners who system island. of an event. If the planning coordinator trip outside of the UFLS set points identifies program deficiencies, could procure load to shed to account 2. Coordination of Assessments and Requirement R12 requires the planning for the loss in generation). Results coordinator to conduct and document UFLS design assessments, which are E. UFLS Program Coordination With 37. Requirements R5 and R13 of PRC– Other Protection Systems 006–1 require planning coordinators meant to consider the deficiencies, that share identified islands to within two years of an event. The 44. Recommendation 21C of the coordinate UFLS program design and Commission is concerned that this time Blackout Report addresses the event assessment. The options for frame may be too long since it appears coordination of protection systems.30 coordinating designs of UFLS programs that island event assessments and The recommendation states that NERC in Requirement R5 include: (1) consideration of deficiencies could shall ‘‘determine the goals and Developing a common program; (2) reasonably be conducted in a much principles needed to establish an conducting a joint UFLS design shorter time frame. Under NERC’s integrated approach to relay protection assessment among the planning proposal, deficiencies could remain for generators and transmission lines coordinators whose area or portions of within a UFLS program for two years and the use of underfrequency and whose areas are part of the same from an event exposing the Bulk-Power undervoltage load shedding (UFLS and identified island; or (3) conducting an System to instability, uncontrolled UVLS) programs. An integrated independent design assessment and, in separation and cascading outages approach is needed to ensure that at the the event the UFLS design assessment should a frequency event occur that the local and regional levels, these fails to meet Requirement R3, identify UFLS program mishandles. NERC interactive components provide an modifications to the UFLS program(s) to provided no explanation of its basis for appropriate balance of risks and benefits meet Requirement R3 and report these the proposed two-year time frame. in terms of protecting specific assets and modifications as recommendations to 41. The Commission asks the ERO facilitating overall grid survival.’’ 31 the other planning coordinators. and other interested persons what the Accordingly, an integrated approach 38. The options for coordinating event basis is for proposing a two-year time requires coordination of all types of assessments in Requirement R13 frame. In addition, the Commission protection systems (e.g., UFLS, UVLS), include: (1) Conducting a joint event seeks clarification from the ERO as to internally and externally to an entity’s assessment per Requirement R11 among how soon after event actuation would planning coordinators whose areas were an entity need to implement corrections 30 Blackout Report at 159. affected; (2) conducting an independent in response to any deficiencies 31 Id.

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area, to be responsive to the Blackout cooperation and/or ‘‘mutual consent’’ shedding for underfrequency or Report. between planning coordinators under undervoltage conditions (Requirement 45. While PRC–006–1 requires the proposed Reliability Standard in R2); (ii) consider factors (including coordination of UFLS programs among order for island boundaries to be set so frequency, rate of frequency decay, planning coordinators in Requirements that, while deviating from Regional voltage level, rate of voltage decay, or R5, R7, and R13, it does not appear to Entity boundaries, they better power flow levels) in designing an capture the same level of coordination approximate actual island separation automatic undervoltage load shedding with other protection systems as in boundaries. scheme (Requirement R4); and (iii) Requirement R1.2.8 of PRC–006–0.32 coordinate automatic load shedding G. Automatic Load Shedding and throughout its area with underfrequency The Commission seeks comments from Manual Load Shedding NERC and other interested persons on isolation of generating units, tripping of whether and how coordination with 48. Proposed Reliability Standard shunt capacitors, and other automatic other protection systems is or is not PRC–006–1 requires automatically actions that will occur under abnormal achieved under the new requirements. shedding predetermined amounts of frequency, voltage, or power flow load if frequency declines to the UFLS conditions (Requirement R7). In its F. Identification of Island Boundaries set point in order to rebalance resources petition, NERC explains that balancing 46. Requirement R1 of PRC–006–1 and demand and prevent frequency authorities were deleted from directs planning coordinators to develop decline that might cause instability, Requirements R2 and R4 ‘‘because the criteria to select areas that may form uncontrolled separation, or cascading frequency related aspects of these islands based on historical events and outages. Proposed Reliability Standard requirements were removed, leaving system studies. Historical events and EOP–003–2 requires manual load only consideration of automatic system studies provide planning shedding plans, which may be undervoltage load shedding in these two coordinators with the data necessary to employed in addition to the automatic requirements.’’ 34 NERC’s petition, determine where islands will occur load shedding in the UFLS program, or however, does not explain why based on the physics of the system. to mitigate other reliability issues. If balancing authorities were removed Requirement R2.3 clarifies that islands load allocated to be shed automatically from Requirement R7. Moreover, given identified in Requirement R1, which is also planned for manual load that balancing authorities would no span two or more Regional Entity areas, shedding, then that load resource would longer be subject to Requirements R2, should be broken up such that each be double-counted. Once load is R4, and R7 of EOP–003–2 and are not Regional Entity area forms an island. disconnected from the system, either listed as applicable entities in PRC– Requirement R2.3 allows planning automatically or manually, it cannot be 006–1, the proposed Reliability coordinators to ‘‘adjust the island used again to arrest frequency decline. Standards do not preserve these existing boundaries to differ from the Regional In the event that a load resource is balancing authority responsibilities. Entity area boundaries by mutual double-counted and removed during 52. The Commission seeks consent where necessary’’ to preserve automatic UFLS, the manual load clarification from the ERO as to why contiguous island boundaries that better shedding cannot be completed if called these existing balancing authority reflect simulations. The Commission upon. Even if additional load is located responsibilities were not incorporated agrees that identifying island and shed to compensate for this missing into Reliability Standards PRC–006–1 or boundaries based on where they are load, the system would be put into an EOP–003–2. The Commission also seeks likely to occur due to system un-studied state and could have comments from the ERO and other characteristics, as opposed to unpredicted, negative responses. interested persons as to why balancing maintaining rigid Regional Entity area Accordingly, resources allocated to each authorities should not be informed of boundaries, should result in more type of load shedding (i.e., automatic UFLS program plans that directly effective UFLS programs. Accordingly, and manual) should not overlap. impact balancing authority functions. the Commission encourages cooperation 49. There are no requirements in PRC–006–1 to coordinate automatic I. Violation Risk Factors and Violation among entities to create UFLS programs Severity Levels that set island boundaries based on load shedding by UFLS and manual where separations are expected to occur load shedding under EOP–003–2. The 53. NERC states that each primary during an underfrequency event. Commission seeks comments from the requirement in PRC–006–1 and EOP– 47. In its petition, NERC states that ERO and other interested persons on 003–2 is assigned a Violation Risk the Requirements allow planning how the coordination of automatic and Factor (VRF) and Violation Severity coordinators to ‘‘select islands including manual load shedding is considered in Level (VSL) and that these elements interconnected portions of the bulk light of the fact that the proposed support the determination of an initial electric system in adjacent Planning Reliability Standards do not explicitly value range for the Base Penalty Coordinator areas and Regional Entity require coordination. Amount regarding violations of requirements in Commission-approved areas, without the need for coordinating H. Elimination of Requirements for Reliability Standards, as defined in the this selection with Planning Balancing Authorities in EOP–003–2 Coordinators in neighboring regions.’’ 33 ERO Sanction Guidelines. 50. Requirements R2, R4, and R7 of Requirement R2.3 of PRC–006–1, 54. The Commission proposes to the currently-effective Reliability however, requires ‘‘mutual consent’’ to approve the VRFs and VSLs in PRC– Standard EOP–003–1 apply to adjust island boundaries from Regional 006–1 and EOP–003–2. However, the transmission operators and balancing Entity boundaries. The Commission Commission seeks comments from the authorities. Proposed Reliability seeks clarification from the ERO ERO and other interested persons Standard EOP–003–2 proposes to concerning the required degree of regarding one proposed VSL and one eliminate balancing authorities from proposed VRF for PRC–006–1. Requirements R2, R4, and R7. 55. The ‘‘Lower VSL’’ assignment for 32 Requirement 1.2.8 of PRC–006–0 encompasses ‘‘[a]ny other schemes that are part of or impact the 51. Under the proposed modification, Requirement R8 in PRC–006–1 applies UFLS program.’’ balancing authorities would no longer: 33 NERC Petition at 75–76. (i) Establish plans for automatic load 34 NERC Petition at 42.

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when a UFLS entity fails to provide data J. Implementation Plan and Effective control number and expiration date. to its planning coordinator for 5 to 10 Date Respondents subject to the filing calendar days following the schedule 58. NERC requests an effective date requirements of this rule will not be specified by the planning coordinator. for PRC–006–1 and EOP–003–2 of one penalized for failing to respond to these Requirement R8 of PRC–006–1 does not year following the first day of the first collections of information unless the include a 5-day grace period for calendar quarter after applicable collections of information display a providing data to planning coordinators. regulatory approvals with respect to all valid OMB control number. Accordingly, the subject VSL Requirements of the proposed 62. The Commission is submitting assignment may be inconsistent with Reliability Standards except Parts 4.1 these reporting and recordkeeping the Commission’s VSL Guideline 3. The through 4.6 of Requirement R4 of PRC– requirements to OMB for its review and guideline states that a VSL ‘‘should not 006–1. With respect to Parts 4.1 through approval under section 3507(d) of PRA. appear to redefine or undermine the 4.6 of Requirement R4 of PRC–006–1, Comments are solicited on the requirement.’’ 35 The five-day grace NERC requests an effective date of one Commission’s need for this information, period implicit in the proposed VSL year following the receipt of generation whether the information will have appears to be inconsistent with this data as required in Reliability Standard practical utility, the accuracy of 39 provided burden estimate, ways to guideline. In addition, the proposed PRC–024–1, but no sooner than one enhance the quality, utility, and clarity VSL creates a compliance issue. year following the first day of the first of the information to be collected, and Specifically, it is unclear where a UFLS calendar quarter after applicable any suggested methods for minimizing entity falls in the VRF and VSL matrices regulatory approvals of PRC–006–1. 59. NERC contends that the proposed the respondent’s burden, including the if it fails to provide data to its planning implementation plan is not excessively use of automated information coordinator within 1 to 5 days of its long and allows sufficient time for techniques. scheduled date. entities to transition and install the 63. This Notice of Proposed 56. The VRF for Requirement R5, necessary processes to become Rulemaking proposes to approve which requires planning coordinators to compliant. NERC maintains that the one Reliability Standards PRC–006–1 and coordinate their UFLS program design year phase-in for compliance provides EOP–003–2, which would replace with other planning coordinators whose planning coordinators sufficient time: currently effective Reliability Standards area is in part of the same identified (1) To develop, modify, or validate (to PRC–007–0, PRC–009–0, EOP–003–1 island, is proposed as ‘‘Medium.’’ NERC determine that an existing program and NERC-approved Reliability states that Requirement R5 is ‘‘not meets required performance Standard PRC–006–0.41 As noted related to similar reliability goals in characteristics) existing UFLS programs; previously, Reliability Standard PRC– other standards.’’ 36 However, and (2) to establish a schedule for 006–0 was never approved by the coordination of load shedding plans is implementation, or validate a schedule Commission, and therefore has never required in a similar manner in for completion of program revisions been mandatory and enforceable. On the Requirement R3 of currently effective already in progress. Moreover, NERC other hand, Reliability Standards PRC– Reliability Standard EOP–003–1,37 states that transmission owners and 007–0 and PRC–009–0 were approved which includes a VRF of ‘‘High.’’ The distribution providers will comply with by the Commission and are currently the schedule determined by planning lack of coordination of UFLS programs mandatory and enforceable. Because coordinators but no sooner than the among planning coordinators within the Proposed Reliability Standard PRC– effective date of the standard. same identified island could lead to 006–1 incorporates the requirements 60. The Commission proposes to from Reliability Standards PRC–006–0, ineffective UFLS operations and further accept the implementation plan and PRC–007–0, and PRC–009–0 some of the cascading outages within the island effective date proposed by the ERO for existing requirements will become when UFLS is activated. PRC–006–1 and EOP–003–2. However, mandatory and enforceable (where 57. Guideline 3 of the Commission’s the Commission seeks comments from previously they were voluntary), while VRF Guidelines states that ‘‘[a]bsent the ERO and other interested persons others continue to be so. To properly justification to the contrary, the about any potential reliability gaps that account for the burden on respondents, Commission expects the assignment of may occur during the development and the Commission will treat the burden Violation Risk Factors corresponding to implementation of PRC–024–1, such as resulting from NERC-approved Requirements that address similar how the planning coordinators will Reliability Standard PRC–006–0 as reliability goals in different Reliability adequately determine and apply UFLS essentially new to the industry, even Standards would be treated simulations and plans in the absence of though it is likely that most applicable comparably.’’ 38 The Commission seeks generator trip settings. entities have already been complying.42 clarification from the ERO why IV. Information Collection Statement 64. The reporting requirements in proposed Reliability Standard EOP– coordination of load shedding plans is 61. The Office of Management and a ‘‘High’’ VRF for transmission operators Budget (OMB) regulations require that and balancing authorities in EOP–003– 41 PRC–006–0 was not approved by the OMB approve certain reporting and Commission but remained effective as a NERC- 2 but NERC proposes a ‘‘Medium’’ recordkeeping (collections of approved standard (but not mandatory or VRF for planning coordinators in, PRC– information) imposed by an agency.40 enforceable). The other three standards were 006–1. Upon approval of a collection(s) of approved by the Commission. Mandatory Reliability Standards for the Bulk-Power System, Order No. information, OMB will assign an OMB 693, FERC Stats. & Regs. ¶ 31,242, order on reh’g, 35 North American Electric Reliability Corp., 123 Order No. 693–A, 120 FERC ¶ 61,053 (2007). FERC ¶ 61,284, at P 32 (2008). 39 PRC–024–1 addresses ‘‘Generator Performance 42 This statement is made because currently 36 NERC Petition at 46. During Frequency and Voltage Excursions’’ and is effective Reliability Standards PRC–007–0 and 37 Proposed Reliability Standard EOP–003–2 currently being developed in the NERC standard PRC–009–0 required UFLS entities to follow the includes the same VRF assignment of ‘‘High’’ for drafting process under Project 2007–09 (Generator UFLS program implemented by Reliability Standard Requirement R3. Verification), which is one of NERC’s priority PRC–006–0. Therefore, it is likely that entities have 38 North American Electric Reliability Corp., 119 projects. already been following the requirements contained FERC ¶ 61,145, at P 25 (2007). 40 5 CFR 1320.11. in Reliability Standard PRC–006–0.

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003–2 are virtually the same as those in 65. Public Reporting Burden: Our study results to design or update the currently effective Reliability Standard estimate below regarding the number of UFLS programs. Additionally, EOP–003–1. The difference is that respondents is based on the NERC documentation and the review of UFLS proposed Reliability Standard EOP– compliance registry as of 7/29/11. program results by supervisors and 003–2 proposes to eliminate balancing According to the NERC compliance management is included in the authorities from Requirements R2 and registry, there are 72 planning administrative estimations. These are from Measure M1.43 This requirement coordinators and 126 balancing consistent with estimates for similar and measure deal with establishing and authorities. The individual burden tasks in other Commission approved documenting automatic load shedding estimates are based on the time needed standards. plans. to gather data, run studies, and analyze

Number of Number of Average burden Total annual PRC–006–1 (Automatic underfrequency load shedding) 44 respondents responses per hours per annually respondent response burden hours

(1) (2) (3) (1)x(2)x(3)

PCs *: Design and document Automatic UFLS Program ...... 120 8,640

PCs: Management Review of Documentation ...... 72 1 40 2,880

PCs: Record Retention ...... 16 1,152

Total ...... 12,672 EOP–003–2 (Load Shedding Plans) 45

Removal of BAs * from Reporting Requirements in R2 and M1 (Burden Reduction) ...... 126 1 Reporting ¥10 ¥1260

Record ¥1 ¥126 Retention

Total ...... ¥1,386

Net Change in Burden ...... 11,286 * PC = Planning Coordinator; BA = Balancing Authority.

Total Annual Hours for Collection: Necessity of the Information: This Washington, DC 20426 [Attention: Ellen (Compliance/Documentation) = 11,286 proposed rule proposes to approve the Brown, Office of the Executive Director, hours. requested modifications to Reliability e-mail: [email protected], phone: Total Reporting Cost for Planning Standards pertaining to automatic (202) 502–8663, fax: (202) 273–0873]. Coordinators: = 11,520 hours @ $120/ underfrequency load shedding. The 67. For submitting comments hour = $1,382,400. proposed Reliability Standards help concerning the collection(s) of Total Record Retention Cost for ensure the reliable operation of the bulk information and the associated burden Planning Coordinators: 1,152 hours @ electric system by arresting declining estimate(s), please send your comments $28/hour = $32,256. frequency and assisting recovery of to the Commission and to the Office of Total Reporting and Record Retention frequency following system events Management and Budget, Office of Cost Savings for Balancing Authorities: leading to frequency degradation. Information and Regulatory Affairs, = (1,260 hours @ $120/hour) + (126 Internal Review: The Commission has Washington, DC 20503 [Attention: Desk hours @ $28/hour) = $154,728. reviewed the proposed Reliability Officer for the Federal Energy Standards and made a determination Total Annual Cost (Reporting + Regulatory Commission, phone: (202) that its action is necessary to implement Record Retention) 46: = 395–4638, fax: (202) 395–7285]. For section 215 of the FPA. These $1,414,656¥$154,728 = $1,259,928. security reasons, comments to OMB requirements, if accepted, should should be submitted by e-mail to: Title: Mandatory Reliability Standards conform to the Commission’s [email protected]. for the Bulk-Power System. expectation for UFLS programs as well Comments submitted to OMB should Action: Proposed Collection FERC– as procedures within the energy include Docket Number RM11–20 and 725A. industry. OMB Control Number 1902–0244. OMB Control No.: 1902–0244. 66. Interested persons may obtain Respondents: Businesses or other for- information on the reporting V. Environmental Analysis profit institutions; not-for-profit requirements by contacting the 68. The Commission is required to institutions. following: Federal Energy Regulatory prepare an Environmental Assessment Frequency of Responses: On occasion. Commission, 888 First Street, NE. or an Environmental Impact Statement

43 Balancing authorities are also removed from for under Commission approved Reliability standard to the proposed standard these entities are Requirements R4 and R7, but these do not have Standards PRC–007–0 and PRC–009–0. not included here. reporting requirements associated with them. 45 Transmission operators also have to comply 46 The hourly reporting cost is based on the cost 44 Proposed Reliability Standard PRC–006–1 with Reliability Standard EOP–003–2 but since the of an engineer to implement the requirements of the applies to both planning coordinators and to UFLS applicable reporting requirements (and associated rule. The record retention cost comes from entities. However, the burden associated with the Commission staff research on record retention burden) have not changed from the existing UFLS entities is not new because it was accounted requirements.

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for any action that may have a whom the proposed Reliability Standard www.ferc.gov) and in the Commission’s significant adverse effect on the human will apply will incur compliance and Public Reference Room during normal environment.47 The Commission has recordkeeping costs of $157,184 business hours (8:30 a.m. to 5 p.m. categorically excluded certain actions ($19,648 per planning coordinator) Eastern time) at 888 First Street, NE., from this requirement as not having a associated with the Standard’s Room 2A, Washington, DC 20426. significant effect on the human requirements. The small balancing 77. From the Commission’s Home environment. Included in the exclusion authorities will receive a savings of Page on the Internet, this information is are rules that are clarifying, corrective, $154,728 ($8,596 per balancing available on eLibrary. The full text of or procedural or that do not authority). Accordingly, proposed this document is available on eLibrary substantially change the effect of the Reliability Standards PRC–006–1 and in PDF and Microsoft Word format for regulations being amended.48 The EOP–003–2 should not impose a viewing, printing, and/or downloading. actions proposed here fall within this significant operating cost increase or To access this document in eLibrary, categorical exclusion in the decrease on the affected small entities. type the docket number excluding the Commission’s regulations. 71. Based on this understanding, the last three digits of this document in the Commission certifies that these VI. Regulatory Flexibility Act docket number field. Reliability Standards will not have a 78. User assistance is available for Certification significant economic impact on a eLibrary and the Commission’s Web site 69. The Regulatory Flexibility Act of substantial number of small entities. during normal business hours from the 1980 (RFA) 49 generally requires a Accordingly, no regulatory flexibility Commission’s Online Support at 202– description and analysis of final rules analysis is required. 502–6652 (toll free at 1–866–208–3676) that will have significant economic or e-mail at [email protected], VII. Comment Procedures impact on a substantial number of small or the Public Reference Room at (202) entities. The RFA mandates 72. The Commission invites interested 502–8371, TTY (202) 502–8659. E-mail consideration of regulatory alternatives persons to submit comments on the the Public Reference Room at that accomplish the stated objectives of matters and issues proposed in this [email protected]. a proposed rule and that minimize any notice to be adopted, including any significant economic impact on a related matters or alternative proposals List of Subjects in 18 CFR Part 40 substantial number of small entities. that commenters may wish to discuss. Electric power; Electric utilities; The Small Business Administration’s Comments are due December 27, 2011. Reporting and recordkeeping (SBA) Office of Size Standards develops Comments must refer to Docket No. requirements. the numerical definition of a small RM11–20–000, and must include the By direction of the Commission. 50 business. The SBA has established a commenter’s name, the organization Commissioner Spitzer is not participating. size standard for electric utilities, they represent, if applicable, and their Nathaniel J. Davis, Sr., stating that a firm is small if, including address in their comments. Deputy Secretary. its affiliates, it is primarily engaged in 73. The Commission encourages the transmission, generation and/or comments to be filed electronically via [FR Doc. 2011–27625 Filed 10–25–11; 8:45 am] distribution of electric energy for sale the eFiling link on the Commission’s BILLING CODE 6717–01–P and its total electric output for the Web site at http://www.ferc.gov. The preceding twelve months did not exceed Commission accepts most standard DEPARTMENT OF ENERGY four million megawatt hours.51 word processing formats. Documents 70. Proposed Reliability Standard created electronically using word Federal Energy Regulatory PRC–006–1 proposes to establish processing software should be filed in Commission design, assessment, and documentation native applications or print-to-PDF requirements for automatic UFLS format and not in a scanned format. 18 CFR Part 40 program. It will be applicable to Commenters filing electronically do not planning coordinators and entities that need to make a paper filing. [Docket No. RM11–18–000] are responsible for the ownership, 74. Commenters that are not able to operation, or control of UFLS Transmission Planning Reliability file comments electronically must send Standards equipment. Proposed Standard EOP– an original of their comments to: 003–2 proposes to remove balancing Federal Energy Regulatory Commission, AGENCY: Federal Energy Regulatory authorities from having to comply with Secretary of the Commission, 888 First Commission, DOE. R2 and M1 of the standard. Comparison Street, NE., Washington, DC 20426. ACTION: Notice of proposed rulemaking. of the NERC compliance registry with 75. All comments will be placed in data submitted to the Energy the Commission’s public files and may SUMMARY: Transmission Planning (TPL) Information Administration on Form be viewed, printed, or downloaded Reliability Standards are intended to EIA–861 indicates that perhaps as many remotely as described in the Document ensure that the transmission system is as 8 small entities are registered as Availability section below. Commenters planned and designed to meet an planning coordinators and 18 small on this proposal are not required to appropriate and specific set of reliability entities are registered as balancing serve copies of their comments on other criteria. Reliability Standard TPL–002– authorities. The Commission estimates commenters. 0a references a table which identifies that the small planning coordinators to different categories of contingencies and VIII. Document Availability allowable system impacts in the 47 Order No. 486, Regulations Implementing the 76. In addition to publishing the full planning process. The table includes a National Environmental Policy Act of 1969, FERC text of this document in the Federal footnote regarding planned or controlled Stats. & Regs., Regulations Preambles 1986–1990 ¶ 30,783 (1987). Register, the Commission provides all interruption of electric supply where a 48 18 CFR 380.4(a)(2)(ii). interested persons an opportunity to single contingency occurs on a 49 5 U.S.C. 601–612. view and/or print the contents of this transmission system. North American 50 13 CFR 121.101. document via the Internet through the Electric Reliability Corporation (NERC), 51 13 CFR 121.201, Sector 22, Utilities & n.1. Commission’s Home Page (http:// the Commission-certified Electric

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Reliability Organization, requests criteria for approval that it be just, Table I.’’ 9 Table I identifies different approval of a revision to the footnote. In reasonable, not unduly discriminatory categories of contingencies and this notice, the Commission proposes to or preferential, and in the public allowable system impacts in the remand NERC’s proposed revision to the interest.3 The Commission seeks planning process. With regard to system footnote. comments on its proposal. impacts, Table I further provides that a DATES: Comments are due December 27, I. Background Category B (single) contingency must 2011. not result in cascading outages, loss of 2. Section 215 of the FPA requires a demand or curtailed firm transfers, ADDRESSES: You may submit comments, Commission-certified Electric identified by docket number by any of system instability or exceeded voltage or Reliability Organization (ERO) to thermal limits. With regard to the clause the following methods: develop mandatory and enforceable • Agency Web Site: http:// regarding loss of demand, current Reliability Standards, which are subject footnote ‘b’ of Table 1 states: www.ferc.gov. Documents created to Commission review and approval. electronically using word processing Approved Reliability Standards are Planned or controlled interruption of electric supply to radial customers or some software should be filed in native enforced by the ERO, subject to applications or print-to-PDF format and local Network customers, connected to or Commission oversight, or by the supplied by the Faulted element or by the not in a scanned format. Commission independently. • affected area, may occur in certain areas Mail/Hand Delivery: Commenters 3. Pursuant to section 215 of the FPA, without impacting the overall reliability of unable to file comments electronically the Commission established a process to the interconnected transmission systems. To must mail or hand deliver comments to: select and certify an ERO 4 and, prepare for the next contingency, system Federal Energy Regulatory Commission, subsequently, certified NERC as the adjustments are permitted, including Secretary of the Commission, 888 First ERO.5 On March 16, 2007, the curtailments of contracted Firm (non- Street, NE., Washington, DC 20426. Commission issued Order No. 693, recallable reserved) electric power Transfers. FOR FURTHER INFORMATION CONTACT: approving 83 of the 107 Reliability B. Order No. 693 Directive Robert T. Stroh (Legal Information), Standards filed by NERC, including Office of the General Counsel, Federal Reliability Standard TPL–002–0, Table 5. In Order No. 693, the Commission 6 Energy Regulatory Commission, 888 1, footnote ‘b.’ In addition, pursuant to stated that it believes that the 7 First Street, NE., Washington, DC section 215(d)(5) of the FPA, the transmission planning Reliability 20426, Telephone: (202) 502–8473. Commission directed NERC to develop Standard should not allow an entity to Eugene Blick (Technical Information), modifications to 56 of the 83 approved plan for the loss of non-consequential Office of Electric Reliability, Federal Reliability Standards, including firm load in the event of a single 10 Energy Regulatory Commission, 888 footnote ‘b’ of Reliability Standard TPL– contingency. The Commission 8 First Street, NE., Washington, DC 002–0. directed the ERO to develop certain 20426, Telephone: (202) 502–8066. A. Transmission Planning (TPL) modifications, including a clarification of Table 1, footnote ‘b’. The Commission SUPPLEMENTARY INFORMATION: Reliability Standards stated that: Notice of Proposed Rulemaking 4. Currently-effective Reliability Standard TPL–002–0a addresses Bulk- Based on the record before us, we believe that the transmission planning Reliability October 20, 2011. Power System planning and related 1. On March 31, 2011, the North Standard should not allow an entity to plan system performance for single element for the loss of non-consequential load in the American Electric Reliability contingency conditions. Requirement event of a single contingency. The Corporation (NERC) filed a petition R1 of TPL–002–0a requires that each Commission directs the ERO to clarify the seeking approval of Table 1, footnote ‘b’ Planning Authority and Transmission Reliability Standard. Regarding the of four Reliability Standards: Planner ‘‘demonstrate through a valid comments of Entergy and Northern Indiana Transmission Planning: TPL–001–1— assessment that its portion of the that the Reliability Standard should allow System Performance Under Normal (No interconnected transmission system is entities to plan for the loss of firm service for Contingency) Conditions (Category A), planned such that the Network can be a single contingency, the Commission finds TPL–002–1b—System Performance operated to supply projected customer that their comments may be considered Following Loss of a Single Bulk Electric through the Reliability Standards demands and projected Firm development process. However, we strongly System Element (Category B), TPL–003– Transmission Services, at all demand discourage an approach that reflects the 1a—System Performance Following levels over the range of forecast system lowest common denominator. The Loss of Two or More Bulk Electric demands, under the contingency Commission also clarifies that an entity may System Elements (Category C), and conditions as defined in Category B of seek a regional difference to the Reliability TPL–004–1– System Performance Standard from the ERO for case-specific 11 Following Extreme Events Resulting in 3 16 U.S.C. 824o(d)(2) (2006). circumstances. the Loss of Two or More Bulk Electric 4 Rules Concerning Certification of the Electric System Elements (Category D).1 Reliability Organization; and Procedures for the 9 Reliability Standard TPL–002–0a, Requirement Establishment, Approval and Enforcement of R1. Pursuant to section 215(d)(4) of the Electric Reliability Standards, Order No. 672, FERC Federal Power Act (FPA) 2, the 10 See Order No. 693, FERC Stats. & Regs. Stats. & Regs. ¶ 31,204, order on reh’g, Order No. ¶ 31,242 at P 1794. Non-consequential load loss Commission proposes to remand the 672–A, FERC Stats. & Regs. ¶ 31,212 (2006). includes the removal, by any means, of any planned proposed Table 1, footnote b. As 5 North American Electric Reliability Corp., 116 firm load that is not directly served by the elements discussed below, the Commission FERC ¶ 61,062, order on reh’g & compliance, 117 that are removed from service as a result of the FERC ¶ 61,126 (2006), aff’d sub nom., Alcoa, Inc. believes that the proposed Reliability contingency. Currently-effective footnote ‘b’ deals v. FERC, 564 F.3d 1342 (D.C. Cir. 2009). with both consequential load loss and non- Standard does not meet the statutory 6 Mandatory Reliability Standards for the Bulk- consequential load loss. NERC’s proposed footnote Power System, Order No. 693, FERC Stats. & Regs. ‘b’ characterizes both types of load loss as ‘‘Firm 1 While footnote ‘b’ appears in all four of the ¶ 31,242, order on reh’g, Order No. 693–A, 120 Demand.’’ The focus of this NOPR is NERC’s above referenced TPL Reliability Standards, its FERC ¶ 61,053 (2007). proposed treatment of non-consequential load loss relevance and practical applicability is limited to 7 16 U.S.C. 824o(d)(5)(2006). or planned interruption of ‘‘Firm Demand.’’ TPL–002–0a. 8 Order No. 693, FERC Stats & Regs. ¶ 31,242 at 11 Order No. 693, FERC Stats. & Regs. ¶ 31,242 at 2 18 U.S.C. 824o(d)(4) (2006). P 1797. P 1794 (footnotes omitted).

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6. In a subsequent clarifying order, the from service as a result of the Contingency, compliance monitor and enforcement Commission stated that it believed that or (2) Interruptible Demand or Demand-Side authority. NERC also stated that neither a regional difference, or a case-specific Management Load. Furthermore, in limited the ERO nor the Regional Entities will exception process that can be circumstances Firm Demand may need to be review decisions regarding planned technically justified, to plan for the loss interrupted to address BES performance interruptions. Their role will be limited requirements. When interruption of Firm of firm service ‘‘at the fringes of various Demand is utilized within the planning to reviewing whether the registered systems’’ would be an acceptable process to address [Bulk Electric System] entity participated in a stakeholder approach in limited circumstances.12 performance requirements, such interruption process when planning to interrupt Specifically, the Commission clarified is limited to circumstances where the use of Firm Demand. NERC explained that that: Demand interruption are documented, Regional Entities will have oversight including alternatives evaluated; and where Moreover, the Commission, in * * * Order after-the-fact by auditing the entity’s No. 693, then provided a clarification that an the Demand interruption is subject to review implementation of footnote ‘b’ to entity may seek a regional difference to the in an open and transparent stakeholder determine if the entity planned on Reliability Standard from the ERO for case- process that includes addressing stakeholder interrupting Firm Demand and whether specific circumstances. We believe that a comments. the decision by the entity to rely on regional difference, or a case-specific D. Supplemental Information planned interruption of Firm Demand exception process that can be technically was vetted through the stakeholder 8. On June 7, 2011, in response to a justified, to plan for the loss of firm service process and qualified as one of the ‘‘at the fringes of various systems’’ would be Commission deficiency letter, NERC situations identified in footnote b. an acceptable approach. Thus, the explained that ‘‘the approach proposed Commission did not dictate a single solution 10. Furthermore, NERC stated that an in footnote ‘b’ is equally efficient objective of the planning process should as NERC and others now claim. In any event, because many of the stakeholder NERC must provide a strong technical be to minimize the likelihood and justification for its proposal.13 processes that will be used in footnote magnitude of planned Firm Demand ‘b’ planning decisions are already in interruptions. NERC recognizes that C. NERC’s Petition for Approval of TPL– place, as implemented by FERC in 002–0a, Footnote b there may be topological or system Order No. 890 and in state regulatory configurations where allowing planned 17 7. On March 31, 2011, NERC filed a jurisdictions.’’ NERC also pointed to interruptions of Firm Demand may petition seeking approval of its proposal state public utility commission provide more reliable service. NERC to revise and clarify footnote ‘b’ ‘‘in processes or processes existing in local contends that due to the wide variety of regard to load loss following a single jurisdictions that address transmission system configurations and regulatory contingency.’’ 14 NERC stated that it did planning issues that could serve to compacts, it is not feasible for the ERO not eliminate the ability of an entity to provide a case-specific review of the to develop a one-size-fits-all criterion plan for the loss of non-consequential planned interruption of Firm Demand. for limiting the planned firm load load in the event of a single contingency NERC added that an ERO-sponsored interruptions for Category B events. but drafted a footnote that, according to planning process is not likely to be According to NERC, the standards NERC, ‘‘meets the Commission’s efficient or effective because of drafting team evaluated setting a certain directive while simultaneously meeting extensive jurisdictional issues between magnitude of planned interruption of the needs of industry and respecting NERC, the Commission, and the many Firm Demand, but there was no jurisdictional bounds.’’ 15 NERC states authorities having jurisdiction that analytical data to support a single value, that its proposed footnote ‘b’ establishes would have to be resolved before and it would be viewed as arbitrary. the requirements for the limited implementation could occur. NERC circumstances when and how an entity added that an ERO-specific process II. Discussion can plan to interrupt Firm Demand for would lead to conflicts among federal, 11. The Commission proposes to Category B contingencies. It allows for provincial, state and local governing remand NERC’s proposal to modify planned interruption of Firm Demand bodies that have jurisdiction over Reliability Standard TPL–002–0a, Table when ‘‘subject to review in an open and various parts of the planning, siting and 1, footnote ‘b.’ The Commission believes transparent stakeholder process.’’ 16 construction process. NERC also that NERC’s proposal does not meet the NERC’s proposed footnote ‘b’ states: believes that a NERC-centered process directives in Order No. 693 and the June would duplicate planning actions 2010 Order and does not clarify or An objective of the planning process should be to minimize the likelihood and occurring elsewhere (e.g., where define the circumstances in which an magnitude of interruption of firm transfers or resource allocation decisions are entity can plan to interrupt Firm Firm Demand following Contingency events. actually being made), and such a Demand for a single contingency. Curtailment of firm transfers is allowed when process could lead to inconsistent Specifically, the Commission is achieved through the appropriate redispatch results. NERC concluded that a more concerned that the procedural and of resources obligated to re-dispatch, where reasonable and expeditious path would substantive parameters of NERC’s it can be demonstrated that Facilities, be to rely on existing stakeholder proposed stakeholder process are too internal and external to the Transmission undefined to provide assurances that Planner’s planning region, remain within processes. According to NERC, such applicable Facility Ratings and the re- processes would more likely engage the the process will be effective in dispatch does not result in the shedding of appropriate local-level decision-makers determining when it is appropriate to any Firm Demand. It is recognized that Firm and policy-makers. plan for interrupting Firm Demand, Demand will be interrupted if it is: (1) 9. With respect to review and does not contain NERC-defined criteria Directly served by the Elements removed oversight by NERC and the Regional on circumstances to determine when an Entities, NERC submitted that an ERO- exception for planned interruption of 12 Mandatory Reliability Standards for the Bulk specific process would place the ERO in Firm Demand is permissible, and could Power System, 131 FERC ¶ 61,231, at P 21 (2010) (June 2010 Order). the position of managing and actively result in inconsistent results in 13 Id. participating in a planning process, implementation. In proposing a 14 NERC Petition at 10. which conflicts with its role as the stakeholder process without 15 Id. specification of any technical means by 16 Id. 17 NERC Data Response at 4. which exceptions are to be evaluated,

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the proposed footnote effectively turns system demands.19 Moreover, the would address the issues identified by the processes into a reliability standards planner must consider all single the Commission with the proposed development process outside of NERC’s contingencies applicable to Table I, footnote ‘b’ stakeholder process existing procedures. Furthermore, the Category B and demonstrate that system including, as discussed below, Commission believes that regardless of performance is met. For those instances definition of the process and criteria or the process used, the result could lead where system performance is not met, guidelines for the process. the planner must provide a written to inconsistent reliability requirements A. Lack of Technical or Other Criteria within and across reliability regions. summary of its plans to achieve system While the Commission recognizes that performance including implementation 15. NERC’s proposal does not some variation among regions or entities schedules, in service dates of facilities prescribe the criteria that would define is reasonable given varying grid and implementation lead times.20 In the parameters of permissible topography and other legitimate regard to NERC’s proposal, the interruption of Firm Demand. In Order considerations, there are no technical or Commission is concerned that footnote No. 693 the Commission expressed other criteria to determine whether ‘b’ would function as a means to concern that, as a general rule, footnote ‘b’ should not allow an entity to plan for varied results are arbitrary or based on override the reliability objective and the loss of non-consequential load in the meaningful distinctions. While the system performance requirements of the event of a single contingency and Commission acknowledges that NERC TPL Reliability Standard without any directed NERC to clarify the standard. has flexibility in developing alternative technical or other criteria specified to The Commission stated in the June 2010 approaches, we believe that the determine when planning to interrupt Order that a regional difference or a proposed approach is not equally Firm Demand would be allowable. In this case NERC has provided no case-specific exception process that efficient or effective as the could be technically justified would be Commission’s directives and that NERC technically sound means of determining situations in which planning to acceptable. While the Commission has failed to provide a strong technical allows NERC to propose an equally justification for its proposal. interrupt Firm Demand would be allowable, and instead has removed effective and efficient solution to a 12. As an initial matter, the such decision-making to an unspecified Commission’s proposed solution, the Commission is concerned that the stakeholder process without any Commission does not believe that the process lacks parameters. The standard assurance that such processes will proposal is equally effective and requires that, when planning to deploy technically sound means of efficient. First, NERC’s proposed interrupt Firm Demand, the Firm approving or denying exceptions. footnote ‘b’ contains no constraints and Demand interruption must be ‘‘subject Without any technical or other criteria could allow an entity to plan to to review in an open and transparent specified to determine when planning to interrupt any amount of Firm Demand, stakeholder process that includes interrupt Firm Demand would be in any location or at any voltage level addressing stakeholder comments.’’ 18 allowable, the Commission is concerned as needed for any single contingency, However, without any substantive that multiple stakeholder processes provided that it is documented and parameters governing the stakeholder across the country engaging in such subjected to a stakeholder process. This process, the enforceability of this determinations could lead to result is contrary to the underlying obligation by NERC and the Regional inconsistent and arbitrary exceptions standard and our prior orders.21 Further, Entities’ would be limited to a review to including, potentially, allowing entities NERC did not technically justify its ensure only that a stakeholder process to plan to interrupt any amount of Firm proposal, instead relying on the benefit occurred. Indeed, NERC’s explanation Demand in any location and at any of having transparency in the process. appears to confirm this concern, as voltage level. While the Commission The Commission does not believe NERC explained that Regional Entities’ recognizes that some variation among transparency in this instance can involvement is limited to oversight regions or entities is reasonable given substitute for a technical justification. after-the-fact by auditing the entity’s varying grid topography and other 16. In its supplemental filing, NERC implementation of footnote ‘b’ to legitimate considerations, there are no states that it is not feasible for the ERO determine if the entity planned on technical or other criteria to determine to develop a one-size-fits-all criterion interrupting Firm Demand and whether whether varied results are arbitrary or for limiting the planned interruption of the decision by the entity to rely on based on meaningful distinctions. The Firm Demand due to the wide variety of planned interruption of Firm Demand Commission is thus concerned that system configurations and regulatory 22 was vetted through the stakeholder there may be a lack of consistency in compacts. NERC states that the process and qualified as one of the determinations to allow the planned standards drafting team believes there is situations identified in footnote ‘b’. interruption of Firm Demand. The no analytical data to support a single proposed stakeholder process does not level and therefore any single value was 13. Further, the Commission is viewed as arbitrary. concerned that the NERC proposal have any parameters except for openness and transparency. As a result, 17. We are not persuaded by NERC’s leaves undefined the circumstances in reasoning. First, both NERC and the which it is allowable to plan for Firm multiple processes that could be adopted across the country would likely Commission have developed thresholds Demand to be interrupted in response to in other reliability contexts that have a Category B contingency. The TPL– lead to inconsistent determinations to allow for the planned interruption of overcome similar claims of arbitrariness. 002–0a Reliability Standard requires For example, the threshold for Planning Authorities and Transmission Firm Demand. 14. The Commission believes that a conducting vegetation management Planners to demonstrate through a valid pursuant to Reliability Standard FAC– assessment that the transmission system remand would give NERC and industry flexibility to develop an approach that 003–1 applies to all transmission lines is planned and can be operated to operated at 200 kV and above.23 In the supply projected Firm Demand at all 19 Reliability Standard TPL–002–0a, Requirement demand levels over a range of forecasted R1. 21 See Order No. 693, see also June 2010 Order. 20 Reliability Standard TPL–002–0a, 22 NERC Data Response at 6. 18 NERC Petition at 10. Requirements R1.5 and R2. 23 Reliability Standard FAC–003–1.

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same vein, NERC’s Statement of Operator (RTO/ISO) stakeholder would plan to interrupt Firm Demand Compliance Registry Criteria has process. on its own, then ask for stakeholder numerous thresholds for determining 20. First, because NERC’s proposed input on that plan. While the standard eligibility for registration.24 The footnote ‘b’ does not define the requires the responsible entity to Commission did not suggest a one size stakeholder process, the express terms ‘‘address’’ stakeholder comments, the fits all exceptions process. If the ERO of the standard would allow an responsible entity is not required to were to perform an exception process, it applicable entity to form or participate specify or support the technical basis might include flexibility in decisions in any stakeholder process and be upon which it rendered a decision. The based on disparate topology or on other compliant with the proposed standard. Commission believes that the matters since it could utilize its Second, as we have mentioned, NERC stakeholder process in proposed technical expertise to determine the has offered no technical justification for footnote ‘b’ would allow the reliability impact from one region to exceptions to be granted through the transmission planner to define the another. Moreover, the Commission’s stakeholder process and therefore no circumstances when it would rely on proposal to remand revised footnote ‘b’ means for the Commission to judge planned interruption of Firm Demand, due to a lack of criteria does not whether the process will protect the provide that definition for review by preclude NERC from developing another reliability of the Bulk-Power System. regulators and other stakeholders, alternative, provided that it is equally Nothing in the proposed footnote ‘b’ receive comments from regulators and ‘‘efficient and effective.’’ restricts the stakeholder process, other stakeholders requesting a more narrow 18. Finally, the Commission than that it must be an open and definition, and explain to the regulators understands that there are a wide transparent stakeholder process that and stakeholders why it is declining the variety of system configurations and includes addressing stakeholder request and maintaining the broader regulatory compacts. NERC indicates comments. The Commission is definition, even if every other that the standards drafting team concerned that any meeting that is open transmission planner facing similar considered a variety of limits; however, to stakeholders could meet this circumstances would reach the opposite it is not clear whether NERC considered standard. Further, because the conclusion. a blend of quantitative and qualitative stakeholder process is not defined, the 22. In Order No. 693 and the June thresholds. For example, a standard proposal could allow a transmission 2010 Order, the Commission stated that could require a process with a planner to develop a process that a regional difference or a case-specific quantitative limitation on how much provides insufficient process and exception process, among other things, Firm Demand could be planned for transparency and still comply with the would be an acceptable approach. With interruption and that standard could standard. The Commission believes that regard to a case-specific process, NERC provide an exception process where a such process would be insufficient replied it would ‘‘create undesirable registered entity would submit because it allows any stakeholder delays and uncertainty in the process to essentially become a documents and explanation to the ERO transmission planning process.’’ 26 reliability standards development or a Regional Entity for approval based However, the proposed footnote ‘b’ does processes outside of NERC’s existing upon certain considerations.25 In short, not provide a time limitation by which procedures. Furthermore, the we believe that a more defined process planning decisions to interrupt Firm Commission believes that regardless of would be needed but, by itself, would Demand must be made. The the stakeholder process used, the not be adequate without NERC-defined Commission is not persuaded that outcome could lead to inconsistent technical or other criteria to determine NERC’s proposed approach ameliorates results, with no technical or other planned interruption of Firm Demand. this concern. The Commission seeks criteria to determine whether varied The Commission seeks comment on comment on whether an exceptions results are arbitrary or based on these proposals. meaningful distinctions. The process that provides defined criteria, with some allowance or consideration B. Stakeholder Process Commission seeks comment on whether for unique circumstances, could be 19. The Commission believes that a stakeholder process is the appropriate vehicle to approve or deny exceptions to crafted that would resolve NERC’s NERC’s proposed footnote ‘b’ concerns of ‘‘undesirable delays’’ and stakeholder process does not meet Order allow entities to plan to interrupt Firm Demand for a single contingency and if ‘‘uncertainty.’’ No. 693 and the June 2010 Order so, whether the proposed footnote ‘b’ 23. In sum, the Commission is directive. According to NERC, the type would require any stakeholder due concerned that the stakeholder process of stakeholder process used under its process. set forth in the NERC proposal is not proposed footnote ‘b’ can vary from one 21. Nor does the standard describe sufficiently defined, rendering it planning entity to the next. NERC offers what would be entailed in addressing potentially unenforceable. As several stakeholder processes as the stakeholder comments. As described mentioned above, the proposed examples, such as the Order 890-type above, the process under the standard stakeholder process includes no process, a state public utility does not provide for any technical rigor parameters other than openness and commission or local jurisdiction to address stakeholder concerns. While transparency. NERC states that it and process, or a Regional Transmission the standard requires transparency and the Regional Entities will review a Organization/Independent System an opportunity for stakeholder responsible entity’s decision to plan to comments on the transmission planner’s interrupt Firm Demand using an after- 24 See, e.g., NERC Statement of Registry Criteria, proposed plan to interrupt Firm the-fact audit, to determine if the Section III. The Commission approved Statement of Registry Criteria in Order No. 693. Demand, it does not mandate any entity’s implementation of footnote ‘b’ 25 While we encourage NERC to exercise particular stakeholder involvement, nor to plan Firm Demand interruption and flexibility in designing an appropriate standard, does it mandate that interested whether the decision by the entity was under this example, the exception process could governmental authorities be afforded vetted through the stakeholder process consist of a stakeholder process that has some level and qualified as one of the situations of due process as long as that process does not notice and an opportunity to comment. allow the entity that proposes its exception to make As we read the proposed standard, a the decision on whether to grant the exception. responsible entity could define when it 26 NERC Data Response at 2.

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identified in footnote ‘b.’ 27 The criteria. For example, the Department of The Commission believes that setting Commission believes that this could Energy’s Electric Emergency Incident generally applicable criteria for when an result in a transmission planner and Disturbance Report (Form OE–417) applicable entity can plan to shed Firm invoking a process that provides for requires, among other things, an entity Demand, coupled with an exceptions minimal stakeholder involvement, to report the uncontrolled loss of 300 process overseen by NERC and the providing scant reasons to reject any Megawatts or more of firm system loads Regional Entities, could mean that few stakeholder input and then defending for more than 15 minutes from a single exception requests must be processed by its decision by claiming that it has incident, load shedding of 100 NERC and the Regional Entities. We satisfied the provision. While the Megawatts or more implemented under seek comment on this option, and Compliance Enforcement Authority emergency operational policy, and the which entities should be involved in the would verify that the process fulfilled loss of service for more than 1 hour to review and subsequent determination as the letter of NERC’s proposed footnote 50,000 customers. While these are to whether an exception should be ‘b’—that some open, transparent reporting requirements for the allowed. stakeholder process was involved and operational timeframe, and may include 28. NERC has raised concerns about that the responsible entity in some way distribution level load shedding, the conflicts among federal, provincial, state addressed stakeholder concerns—there Commission requests comments on and local governing bodies that have is no mechanism for the ERO or a whether they could also serve as a basis jurisdiction over various parts of the Regional Entity to enforce a finding that for setting limits on when an entity can planning, siting and construction the evidence does not support an plan to interrupt Firm Demand on the process. There also may be concerns acceptable instance of planned Bulk-Power System. Another existing about the costs of planning to avoid interruption of Firm Demand. The document that could provide guidance Firm Demand shedding. The Commission seeks comment on the on how to set a limit on the planned Commission seeks comment on whether concerns raised above. interruption of Firm Demand is NERC’s a feasible option would be to revise footnote ‘b’ to allow for the planned C. Commission Proposal Statement of Compliance Registry Criteria, which uses, for example, 25 interruption of Firm Demand in 24. The Commission believes that MW as a threshold in determining when circumstances where the transmission NERC’s proposed footnote ‘b’ does not a load-serving entity or distribution planner can show that it has customer meet the Commission’s Order No. 693 provider should register with NERC. We or community consent and there is no directives, nor is it an equally effective seek comments on this proposed option, adverse impact to the Bulk-Power and efficient alternative. On this basis, and any other external documents that System. This presumably would not the Commission proposes to remand the could be used to guide a revision to require affirmative consent by every proposal to NERC. footnote ‘b.’ individual retail customer, but we 25. The Commission also proposes to recognize that either term, customer or provide further guidance on acceptable 27. Second, as stated above, it is not community, would need to be approaches to footnote ‘b’. We seek clear whether NERC considered a blend adequately defined. The Commission comment on all of the options below. In of quantitative and qualitative therefore seeks comments on who might addition, while the Commission is thresholds. The Commission seeks be able to represent the customer or proposing certain options for revising comments on whether this would be an community in this option and how footnote ‘b’, we also seek comment on option for providing criteria that would customer or community consent might other potential options to solve the be generally applicable, but also for be demonstrated. Additionally, we seek concerns outlined in this NOPR. As allowing for certain cases that may comment on how it would be noted above, the Commission exceed the criteria. For example, a determined that firm demand shedding understands that there are a wide standard could require a process with a with customer consent would not variety of system configurations and quantitative limitation on how much adversely impact the Bulk-Power regulatory compacts. We believe that a Firm Demand could be planned for System. However, we also seek more defined process than that provided interruption and that standard could comment on whether a customer who in the proposed footnote ‘b’ would be provide an exception process where a would otherwise consent to having its needed but, by itself, would not be registered entity would submit planning authority or transmission adequate without NERC-defined documents and explanation to the ERO planner plan to interrupt Firm Demand technical or other criteria to determine or a Regional Entity for approval based pursuant to this option could instead an acceptable planned interruption of upon certain considerations. NERC has select interruptible or conditional firm Firm Demand at the fringes of the raised concerns about conflicts among service under the tariff to address cost system.28 federal, provincial, state and local concerns. 26. We acknowledge that the governing bodies that have jurisdiction 29. Finally, regardless of how NERC standards drafting team considered a over various parts of the planning, siting revises footnote ‘b’ to resolve the variety of limits; however, setting some and construction process. The concerns outlined in this NOPR and in form of criteria within the standard Commission believes that this approach previous orders, the Commission notes itself for planning to interrupt Firm may satisfy the need for technical that NERC will need to support the Demand may be an acceptable approach criteria that we have described, while revision to footnote ‘b.’ If there is a to setting criteria for footnote ‘b’ and accounting for NERC’s concerns about threshold component to the revised would be an option for NERC to the difficulty of developing a one-size- footnote, the Commission believes that consider. We also seek comment on fits-all criterion for limiting planned NERC would need to support the whether existing protocols could Firm Demand interruptions and the threshold and show that instability, provide guidance to NERC in devising appropriateness and feasibility of uncontrolled separation, or cascading managing and actively participating in failures of the system will not occur as 27 NERC Data Response at 7–8. each planning process. As NERC states, a result of planning to shed Firm 28 Any exceptions process to determine specific the objective of footnote ‘b’ should be to Demand up to the threshold. In requests for planned interruption of Firm Demand may not necessarily be limited to the fringes of the minimize the likelihood and magnitude addition, if there is an individual system. of planned Firm Demand interruptions. exception option, the Commission

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believes that the applicable entities consideration of regulatory alternatives serve copies of their comments on other should be required to find that there is that accomplish the stated objectives of commenters. no adverse impact to the Bulk-Power a proposed rule and that minimize any VI. Document Availability System from the exception and that it is significant economic impact on a considered in wide-area coordination substantial number of small entities. 39. In addition to publishing the full and operations. Further, we believe that The Small Business Administration’s text of this document in the Federal any exception should be subject to (SBA) Office of Size Standards develops Register, the Commission provides all further review by the Regional Entity, the numerical definition of a small interested persons an opportunity to NERC, and the Commission. This does business.32 The SBA has established a view and/or print the contents of this not necessarily mean that the Regional size standard for electric utilities, document via the Internet through Entity, NERC, or the Commission stating that a firm is small if, including FERC’s Home Page (http://www.ferc.gov) should have to approve the exception, its affiliates, it is primarily engaged in and in FERC’s Public Reference Room but that any of the three could later the transmission, generation and/or during normal business hours (8:30 a.m. audit its implementation. distribution of electric energy for sale to 5 p.m. Eastern time) at 888 First 30. In conclusion, while the and its total electric output for the Street, NE., Room 2A, Washington, DC Commission provides three options for preceding twelve months did not exceed 20426. revising footnote ‘b’ in this Notice of four million megawatt hours.33 The RFA 40. From FERC’s Home Page on the Proposed Rulemaking, we seek is not implicated by this NOPR because Internet, this information is available on comments on the feasibility of the the Commission is remanding footnote’ eLibrary. The full text of this document options and on ways in which the b’ and not proposing any modifications is available on eLibrary in PDF and options might be improved. In addition, to the existing burden or reporting Microsoft Word format for viewing, we seek comment on whether there are requirements. With no changes to the printing, and/or downloading. To access other ways for NERC to solve the Reliability Standards as approved, the this document in eLibrary, type the concerns outlined above in an equally Commission certifies that this NOPR docket number excluding the last three effective and efficient manner. will not have a significant economic digits of this document in the docket impact on a substantial number of small number field. III. Information Collection Statement entities. 41. User assistance is available for 31. The Office of Management and V. Comment Procedures eLibrary and the FERC’s Web site during Budget (OMB) regulations require that normal business hours from FERC OMB approve certain reporting and 35. The Commission invites interested Online Support at (202) 502–6652 (toll recordkeeping (collections of persons to submit comments on the free at 1–866–208–3676) or e-mail at information) imposed by an agency.29 matters and issues proposed in this [email protected], or the The information contained here is also notice to be adopted, including any Public Reference Room at (202) 502– subject to review under section 3507(d) related matters or alternative proposals 8371, TTY (202) 502–8659. E-mail the of the Paperwork Reduction Act of that commenters may wish to discuss. Public Reference Room at 1995.30 Comments are due 60 days from [email protected]. 32. As stated above, the subject of this publication in the Federal Register. Comments must refer to Docket No. By direction of the Commission. NOPR is NERC’s proposed modification Commissioner Spitzer is not participating. to Table 1, footnote ‘b’ applicable in RM11–18–000, and must include the Nathaniel J. Davis, Sr., four TPL Reliability Standards. This commenter’s name, the organization NOPR proposes to remand the footnote they represent, if applicable, and their Deputy Secretary. ‘b’ modification to NERC. By remanding address in their comments. [FR Doc. 2011–27624 Filed 10–25–11; 8:45 am] footnote ‘b’ the applicable Reliability 36. The Commission encourages BILLING CODE 6717–01–P Standards and any information comments to be filed electronically via collection requirements are unchanged. the eFiling link on the Commission’s Therefore, the Commission will submit Web site at http://www.ferc.gov. The DEPARTMENT OF HEALTH AND this NOPR to OMB for informational Commission accepts most standard HUMAN SERVICES purposes only. word processing formats. Documents 33. Interested persons may obtain created electronically using word Food and Drug Administration information on the reporting processing software should be filed in requirements by contacting the native applications or print-to-PDF 21 CFR Parts 201 and 610 following: Federal Energy Regulatory format and not in a scanned format. [Docket No. FDA–2011–N–0719] Commission, 888 First Street, NE. Commenters filing electronically do not Washington, DC 20426 [Attention: Ellen need to make a paper filing. Bar Code Technologies for Drugs and Brown, Office of the Executive Director, 37. Commenters that are not able to Biological Products; Retrospective e-mail: [email protected], phone: file comments electronically must send Review Under Executive Order 13563; (202) 502–8663, or fax: (202) 273–0873]. an original of their comments to: Request for Comments Federal Energy Regulatory Commission, IV. Regulatory Flexibility Act Secretary of the Commission, 888 First AGENCY: Food and Drug Administration, 34. The Regulatory Flexibility Act of Street, NE., Washington, DC 20426. HHS. 1980 (RFA) 31 generally requires a 38. All comments will be placed in ACTION: Notice; request for comments. description and analysis of final rules the Commission’s public files and may that will have significant economic be viewed, printed, or downloaded SUMMARY: The Food and Drug impact on a substantial number of small remotely as described in the Document Administration (FDA) is announcing a entities. The RFA mandates Availability section below. Commenters review of the ‘‘Bar Code Final Rule,’’ on this proposal are not required to under Executive Order 13563, 29 5 CFR 1320.11. ‘‘Improving Regulation and Regulatory 30 44 U.S.C. 3507(d). 32 13 CFR 121.201. Review.’’ The Bar Code Final Rule, 31 5 U.S.C. 601–612. 33 Id. n.22. which was published in 2004, requires

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certain human drug products and have occurred since those regulations enable health care professionals to biological products to have a bar code. took effect. Under E.O. 13563, and check whether they are giving the right Information submitted can help FDA to under the Department of Health and drug (in the right dose and via the right reassess the costs and benefits of the Human Services’ Plan for Retrospective route of administration) to the right rule and to identify any relevant Review of Existing Rules, FDA will patient at the right time (Id. at 12501). changes in technology that have consider strengthening, complementing, The events that led FDA to propose occurred since it went into effect. FDA or modernizing rules where necessary or requiring bar codes are described in the is establishing a public docket to receive appropriate. preamble to the Bar Code Proposed information relevant to reassessing the As FDA conducts its retrospective Rule. In brief, medication errors are Bar Code Rule. This is an opportunity review of regulations, the Agency will known to be a serious public health for interested persons to share take into account the following factors: 1 problem and can occur at several points information, research, and ideas on the • Whether an action will have a from the time a health care provider need, maturity, and acceptability of positive impact on innovation in an area prescribes the drug to a patient to the alternative identification technologies of public health, safety, or delivery of or time when the patient receives the drug. for the identification, including the access to care; The use of bar codes on drug products unique identification, of drugs and • Whether the public health benefits was expected to significantly reduce biological products. FDA will use the of an action have been realized; medication errors. Bar codes also can information received to assess whether • Whether the public or regulated complement other efforts to reduce the Bar Code Final Rule is achieving its community view modification or medication errors, such as computer intended benefits as effectively as revocation of a regulation as important physician order entry (CPOE) systems possible or should be modified. and have offered useful comments and (where a physician enters orders DATES: FDA will accept both initial suggestions for change; electronically into a computer instead of comments and reply comments in • Whether the impact and writing the order on paper, and response to this notice. Initial comments effectiveness of a regulation has subsequently the order can be checked must be received on or before January 9, changed or been superseded by changes against the patient’s electronic records 2012 and reply comments on or before in conditions or advances in scientific for possible drug interactions, February 23, 2012. (See the or technological information; overdoses, and patient allergies) and ‘‘Comments’’ section of this document • Whether there are significant, retail pharmacy-based computer for more information.) unresolved issues with implementation systems that use a bar-coded NDC ADDRESSES: Submit electronic or enforcement; and number to verify that a consumer’s comments to http:// • How long the regulation has been in prescription is being dispensed with the www.regulations.gov. Submit written effect and whether it has been subject to correct drug. FDA refers readers to the comments to the Division of Dockets prior reviews. preamble to the Bar Code Proposed Rule Management (HFA–305), Food and Drug The first rule FDA is reviewing under should they wish to obtain details on Administration, 5630 Fishers Lane, rm. E.O. 13563 is the Bar Code Final Rule. the events, recommendations, meetings, 1061, Rockville, MD 20852. All The Agency plans to reassess its costs and literature that shaped the proposed comments should be identified with the and benefits and to determine if the Bar rule. In the preamble to the Bar Code docket number found in brackets in the Code Final Rule should be modified to Proposed Rule, the Agency discussed in heading of this document. take into account changes in technology detail the challenge of requiring the use FOR FURTHER INFORMATION CONTACT: that have occurred since the rule went into effect in 2004. of linear bar codes, which, while Benjamin A. Chacko, Center for enabling hospitals to buy scanning Biologics Evaluation and Research I. Background equipment with the confidence that (HFM–17), Food and Drug their purchased equipment would not Administration, 1401 Rockville Pike, In the Federal Register of March 14, 2003 (68 FR 12500), FDA published a be rendered obsolete by new suite 200N, Rockville, MD 20852–1448, technology, could affect future 301–827–6210. proposed rule (Bar Code Proposed Rule) that would require certain human drug technological innovation (68 FR 12500 SUPPLEMENTARY INFORMATION: On product labels and biological product at 12508 through 12510). Comments February 2, 2011, President Barack labels to have a linear bar code that received related to a public meeting on Obama issued Executive Order (E.O.) would contain, at a minimum, the bar coding, presented an array of 13563, ‘‘Improving Regulation and drug’s National Drug Code (NDC) differing opinions on the issue of Regulatory Review’’ (76 FR 3821). One number. In the Federal Register of whether to require a specific technology of the provisions in the new Executive February 26, 2004 (69 FR 9120), the (68 FR 12500 at 12508). Given the order is the affirmation of retrospective Agency finalized the proposed rule complexity of the issues, FDA requested reviews of existing significant (§§ 201.25 and 610.67 (21 CFR 201.25 in the Bar Code Proposed Rule comment regulations. As one step in and 610.67)). As discussed in the concerning alternatives that could implementing the new Executive order, preamble to the Bar Code Proposed replace or be used in conjunction with FDA published a notice in the Federal Rule, the rule was intended to help the linear bar code such as another Register on April 27, 2011 (76 FR reduce the number of medication errors symbol, standard, or technology (Id. at 23520), entitled ‘‘Periodic Review of that occur in hospitals and other health 12510 and 12529). In response to the Bar Code Proposed Existing Regulations; Retrospective care settings (68 FR 12500 at 12501 Rule, FDA received comments including Review Under E.O. 13563.’’ In that through 12502). FDA envisioned that those opposing the use of linear bar document, FDA announced that it is bar codes would be part of a system, codes or asking the Agency to consider conducting a review of its existing along with bar code scanners and other technologies or to eliminate any regulations to determine, in part, computerized databases, that would whether they can be made more reference to linear bar codes in the final effective in light of current public health 1 Department of Health and Human Services, rule. Such comments primarily argued needs and to take advantage of and ‘‘Plan for Retrospective Review of Existing Rules,’’ that selecting a symbology or standard support advances in innovation that pp. 21–22 (August 22, 2011). would inhibit technological innovation.

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Comments opposed to a linear bar code Industry: Bar Code Label open while technologies for securing the requirement generally advocated the Requirements—Questions and supply chain continue to be identified, following alternatives: (1) Two- Answers’’ 3. This guidance amended and standards making use of SNI are dimensional symbologies, (2) the and superseded the final guidance of the developed. Similarly, while FDA European Article Number/Uniform same title dated October 2006, by recognizes that the underlying primary Code Council (EAN/UCC) system incorporating a revised response to goals of the Bar Code Final Rule and generally, (3) radio frequency question 12 (Q12), which pertains to the section 505D of the FD&C Act are identification (RFID) chips, or (4) no use of alternate coding technologies for different, the Agency wants to leave standard or symbology at all (69 FR vaccines. The Agency explained in the options open with respect to how the 9120 at 9136). Federal Register notice announcing the same technology may be used for both Ultimately, FDA determined that, final guidance that it believes purposes. based on data and public comment, a alternative technology such as two- FDA is announcing the establishment linear bar code requirement was dimensional symbology has advanced, of a public docket to provide an appropriate (Id. at 9137 through 9138). allowing the Agency to reconsider the opportunity for interested persons to In the preamble to the Bar Code Final use of such technology. Accordingly, it share information, research, and ideas Rule, the Agency addressed comments will now consider requests from vaccine on the effectiveness of the current concerning alternatives to the linear bar manufacturers who request to use regulation and the need, maturity, and code and stated that, while it believed alternate coding technologies, such as acceptability of alternative technologies that linear bar codes were an two-dimensional symbology, that for the identification, including the established, cost-effective, widely used encode lot number and expiration date unique identification, of drugs and and easily recognized technology, it also information, for an exemption under biological products. FDA will use the acknowledged that linear bar codes have § 201.25(d)(1)(ii) to the linear bar code information received to assess coding several disadvantages. For example, requirement. FDA limited the scope of technologies in relation to current bar linear bar codes may take up more label its revised response to Q12 to vaccines code requirements and other initiatives. space than alternative technologies and because of the mandatory reporting may encode less data compared to other concerns specific to these products as II. Request for Comments and technologies. Thus, if more data need to described in the guidance. Information be encoded on the packaging or labeling FDA recognizes, however, that since FDA is requesting comments and for any other reason (such as to allow alternative technologies continue to supporting information on (1) bar code tracking and tracing of drug products advance, it may now be feasible for labeling standards for drugs and through the drug distribution system), a these technologies to address other biological products and (2) the linear bar code might prove too limiting stakeholder coding needs in other identification of current alternative (Id. at 9137). FDA also stated that, contexts and for other products. For technologies for use by industry and although it had decided to preserve the example, under section 505D of the others. Federal Food, Drug, and Cosmetic Act linear bar code requirement, it would To facilitate this discussion, FDA sets (the FD&C Act) (21 U.S.C. 355e), FDA is consider revising the rule to forth some questions in the following developing standards for identification, accommodate newer technologies as paragraphs. These questions, which are validation, authentication, and tracking they become more mature and not meant to be exhaustive, are and tracing of prescription drugs. The established (Id. at 9137 through 9138). provided to stimulate public comments goal of this initiative is to implement a Since FDA issued the Bar Code Final that will help FDA evaluate the Bar system to further ensure patient safety Rule, advances in alternative Code Final Rule and the and to improve the security of the drug technologies have occurred. In addition, accommodation of alternative supply chain against counterfeit, it has become increasingly clear from technologies to the linear bar code diverted, subpotent, substandard, industry, health care providers, and requirement (§ 201.25). The public is other FDA initiatives, that certain FDA- adulterated, misbranded, or expired drugs. In March 2010, FDA issued a encouraged to address these and/or regulated products present unique bar other related questions. coding concerns. For example, the guidance that discusses a standard for uniquely identifying prescription drug The Agency encourages responses to Agency has since learned that certain the following questions about the costs vaccines present unique challenges in packages using a Standardized Numerical Identifier (SNI).4 In the and benefits of any alternative to the the bar coding context, particularly with guidance, the Agency did not specify linear bar code. FDA also encourages respect to compliance with the means of incorporating the SNI onto you to provide as much detail and recordkeeping and mandatory adverse the package. However, the guidance context as possible in your responses. event reporting requirements that are recognizes that the SNI is a flexible Furthermore, the Agency specifically specific to the administration of standard that can be encoded into a invites small businesses to provide childhood vaccines.2 variety of machine-readable forms of information about the potential impact In recognition of these challenges, in data carriers, such as two-dimensional of alternatives to the linear bar code. the Federal Register of August 11, 2011 bar codes, alternate coding systems, and 1. Is there a need for alternative (76 FR 49772), FDA announced the RFID. Thus, the guidance leaves options technologies to the linear bar code? availability of a final guidance Does the current linear bar code document entitled ‘‘Guidance for 3 ‘‘Guidance for Industry: Bar Code Label requirement meet the current needs of Requirements—Questions and Answers’’ dated the health care industry and health care 2 The National Childhood Vaccine Injury Act of August 2011 (http://www.fda.gov/downloads/ providers? 1986 (Pub. L. 99–660) (42 U.S.C. 300aa–25(a)) BiologicsBloodVaccines/ requires health care providers to report certain GuidanceComplianceRegulatoryInformation/ 2. How has product coding adverse events related to identified childhood Guidances/UCM267392.pdf). technology changed since FDA issued vaccines to the Vaccine Adverse Event Reporting 4 ‘‘Guidance for Industry: Standards for Securing the Bar Code Final Rule on February 26, System (42 U.S.C. 300aa–25(b)). Although health the Drug Supply Chain—Standardized Numerical 2004? Please provide information about care providers are encouraged to report adverse Identification for Prescription Drug Packages’’ dated events related to other drugs and biological March 2010 (http://www.fda.gov/downloads/ the maturity, degree of adoption, cost, products to FDA, they are not required to do so. RegulatoryInformation/Guidance/UCM206075.pdf). and ease of use of coding technologies

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that may be considered as alternatives A. Do you plan to adopt the heading of this document. Received or in addition to the linear bar code. technology within the next 12 months? comments may be seen in the Division 3. What factors other than those listed B. If you do not plan to adopt the of Dockets Management between 9 a.m. in question 2 should FDA take into technology, please explain what and 4 p.m., Monday through Friday. account in considering technologies factor(s) most influenced the decision Please allow sufficient time for mailed alternative to or in addition to the linear not to adopt it. comments to be timely received by the bar code? 10. How would technology adoption 4. What technologies or coding have proceeded since 2004 had the Bar due dates in the event of delivery delay. systems warrant FDA’s consideration as Code Final Rule not gone into effect? Comments must be received by these alternatives to the linear bar code? In 11. What are hospitals’ and other dates to be considered. We request that your response, the Agency particularly health-care facilities’ forecasts for comments be identified clearly as an invites comments on the following technology adoption once incentives in ‘‘initial’’ comment or a ‘‘reply’’ issues for each technology identified: the Economic Stimulus Act of 2008 comment. Initial comments may address A. What is the current state of (Pub. L. 110–185) are no longer in any issue raised in this notice. Initial development and availability of the effect? comments will be made available alternative technology? 12. Would there be an economic electronically, online at http://www. B. Would adoption of this technology impact on those parties who may not be regulations.gov, or for public inspection as an alternative to the linear bar code subject to the bar code requirement but in the Division of Dockets Management further reduce medication errors in who nonetheless may use or adopt or (see ADDRESSES). To allow sufficient hospitals and health care settings? have adopted bar code technology (e.g., opportunity for interested persons to Please provide supporting data, if hospitals, clinics, public health prepare and submit any reply available. agencies, and health care providers)? comments, late-filed initial comments C. Would adoption of this alternative Please use the following questions to will not be considered. Reply comments technology advance public health guide your responses. must address only matters raised in protections? If so, how? If supporting A. Current practices. Describe your current practice(s) at your institution initial comments and must not be used data exist, please provide this to present new arguments, contentions, information. with respect to those products that are or factual material that is not responsive 5. Does the adoption of this required to be labeled with a bar code alternative technology have under §§ 201.25 and 610.67. Have you to the initial comments. To be implications for other FDA or encountered any barriers to your ability considered, reply comments must Department of Health and Human to use technology at your institution? identify which initial comments they Services initiatives (e.g., SNI)? B. Using an alternative to the linear are replying to, and which specific 6. Have you used the linear bar code bar code. If an alternative to the linear issues(s) are being addressed. We will for authentication or tracking and bar code could be placed on the label of not consider comments received during tracing of prescription drugs? at least some of your products, what the reply comment period that do not A. If so, how? impact, if any, would that have on your identify the specific issue(s) raised B. Please describe any successes or current practice(s)? How would you during the initial comment period on challenges that you have encountered in change your practices, if at all? which the reply comment is based. It is adopting linear bar code technology for C. Expenses. What unplanned the Agency’s intent to comply with this purpose. expenses, if any, would you incur, if an Executive Order 13563 as quickly as C. If not, which if any alternative alternative to the linear bar code could possible, so we will not look favorably technologies could reduce medication be placed on the label of at least some on requests for extensions of the errors while also serving other of your products? If you could foresee comment period. functions? using an alternative to the linear bar 7. For hospitals and other health-care code, would you modify operations in Comments previously submitted to facilities that have adopted bar code your facility, and if so, how? the Division of Dockets Management for technologies using linear bar codes: D. Adverse event reporting and the following docket will also be A. What difficulties did you recalls. Have you encountered considered by FDA and do not need to encounter in adopting the technology? challenges/successes in drug be resubmitted: ‘‘Draft Guidance for B. How have productivity and identification or reporting with respect Industry: Bar Code Label Requirements operating costs changed? to products that contain a bar code on (Question 12 Update)’’ (75 FR 54347 C. What differences have you seen in their labels? If so, please describe them. September 2010; Docket No. FDA– medical outcomes? Would an alternative to the linear bar 2010–D–0426). D. What problems have you code have an impact on your recall Dated: October 21, 2011. experienced with the technology? management or adverse event reporting, 8. For hospitals and other health-care and if so, how? Leslie Kux, facilities that have adopted alternative 13. Are there other parties whose Acting Assistant Commissioner for Policy. technologies or non-linear coding: economic interests we should consider? [FR Doc. 2011–27657 Filed 10–25–11; 8:45 am] A. What difficulties did you III. Comments BILLING CODE 4160–01–P encounter in adopting the technology? B. How have productivity and Interested persons may submit to the operating costs changed? Division of Dockets Management (see C. What differences have you seen in ADDRESSES) either electronic or written medical outcomes? comments regarding this document. It is D. What problems have you only necessary to send one set of experienced with the technology? comments. It is no longer necessary to 9. For hospitals and other health-care send two copies of mailed comments. facilities that have not adopted bar code Identify comments with the docket technologies using linear bar codes: number found in brackets in the

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DEPARTMENT OF THE TREASURY DEPARTMENT OF HOMELAND Public Participation and Request for SECURITY Comments Internal Revenue Service We encourage you to participate in Coast Guard this rulemaking by submitting 26 CFR Parts 1 comments and related materials. All 33 CFR Part 165 comments received will be posted [REG–158677–05] [Docket No. USCG–2011–0118] without change to http:// www.regulations.gov and will include RIN 1625–AA00 RIN 1545–BF24 any personal information you have Safety Zones; Fireworks Displays provided. Effect of Election on Corporation Within the Fifth Coast Guard District Submitting Comments AGENCY: Internal Revenue Service (IRS), AGENCY: Coast Guard, DHS. If you submit a comment, please Treasury. ACTION: Notice of proposed rulemaking. include the docket number for this ACTION: Withdrawal of notice of rulemaking (USCG–2011–0118), proposed rulemaking. SUMMARY: The Coast Guard proposes to indicate the specific section of this revise the list of permanent safety zones document to which each comment established for fireworks displays at SUMMARY: This document withdraws the applies, and provide a reason for each proposed regulation seeking to clarify various locations within the geographic suggestion or recommendation. You that if a bank is an S corporation within boundary of the Fifth Coast Guard may submit your comments and the meaning of section 1361(a)(1), its District. This action is necessary to material online (via http:// status as an S corporation does not protect the life and property of the www.regulations.gov) or by fax, mail, or affect the applicability of the special maritime public from the hazards posed hand delivery, but please use only one rules for banks under the Internal by fireworks displays. Entry into or of these means. If you submit a Revenue Code. movement within these proposed zones comment online via http:// during the enforcement periods is www.regulations.gov, it will be FOR FURTHER INFORMATION CONTACT: prohibited without approval of the considered received by the Coast Guard Laura Fields at (202) 622–3050 (not a appropriate Captain of the Port. when you successfully transmit the toll-free number). DATES: Comments and related material comment. If you fax, hand deliver, or SUPPLEMENTARY INFORMATION: must be received by the Coast Guard on mail your comment, it will be or before November 25, 2011. considered as having been received by Background ADDRESSES: You may submit comments the Coast Guard when it is received at the Docket Management Facility. We On August 24, 2006, the Treasury identified by docket number USCG– recommend that you include your name Department and the IRS published in 2011–0118 using any one of the and a mailing address, an e-mail the Federal Register (71 FR 50007) a following methods: address, or a telephone number in the notice of proposed rulemaking under (1) Federal eRulemaking Portal: body of your document so that we can section 1363 (REG–158677–05), relating http://www.regulations.gov. contact you if we have questions to the applicability of the special (2) Fax: 202–493–2251. regarding your submission. banking rules to banks that are S (3) Mail: Docket Management Facility To submit your comment online, go to corporations within the meaning of (M–30), U.S. Department of http://www.regulations.gov, click on the section 1361(a)(1) of the Internal Transportation, West Building Ground ‘‘submit a comment’’ box, which will Revenue Code. Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590– then become highlighted in blue. In the The Treasury Department and the IRS 0001. ‘‘Document Type’’ drop down menu received written comments on the (4) Hand delivery: Same as mail select ‘‘Proposed Rule’’ and insert proposed regulation from various address above, between 9 a.m. and ‘‘USCG–2011–0118’’ in the ‘‘Keyword’’ interested parties. The Treasury 5 p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the Department and the IRS have decided to Federal holidays. The telephone number balloon shape in the ‘‘Actions’’ column. withdraw the proposed regulation. is 202–366–9329. If you submit your comments by mail or List of Subjects in 26 CFR Part 1 To avoid duplication, please use only hand delivery, submit them in an 1 one of these four methods. See the unbound format, no larger than 8 ⁄2 by Income taxes, Reporting and ‘‘Public Participation and Request for 11 inches, suitable for copying and recordkeeping requirements. Comments’’ portion of the electronic filing. If you submit comments by mail and would like to Withdrawal of Notice of Proposed SUPPLEMENTARY INFORMATION section know that they reached the Facility, Rulemaking below for instructions on submitting comments. please enclose a stamped, self-addressed Accordingly, under the authority of postcard or envelope. We will consider FOR FURTHER INFORMATION CONTACT: If 26 U.S.C. 7805, the notice of proposed all comments and material received you have questions on this proposed rulemaking (REG–158677–05) that was during the comment period and may rule, call or e-mail Dennis Sens, published in the Federal Register on change the rule based on your Prevention Division, Fifth Coast Guard August 24, 2006 (71 FR 50007) is comments. District; telephone 757–398–6204, withdrawn. e-mail [email protected]. If you Viewing Comments and Documents Steven T. Miller, have questions on viewing or submitting To view comments, as well as Deputy Commissioner for Services and material to the docket, call Renee V. documents mentioned in this preamble Enforcement. Wright, Program Manager, Docket as being available in the docket, go to [FR Doc. 2011–27631 Filed 10–25–11; 8:45 am] Operations, telephone 202–366–9826. http://www.regulations.gov, click on the BILLING CODE 4830–01–P SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then

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become highlighted in blue. In the This rule proposes to add 3 new notice among the affected segments of ‘‘Keyword’’ box insert ‘‘USCG–2011– safety zone locations to the permanent the public. This would include 0118’’ and click ‘‘Search.’’ Click the safety zones listed in 33 CFR 165.506. publication in the Local Notice to ‘‘Open Docket Folder’’ in the ‘‘Actions’’ The new safety zones include locations Mariners and Marine Information column. You may also visit the Docket at: North Atlantic Ocean, Atlantic City, Broadcasts. Marine information and Management Facility in Room W12–140 NJ; Great Wicomico River, Mila, VA; facsimile broadcasts may also be made on the ground floor of the Department and Cockrell’s Creek, Reedville, VA. for these events, beginning 24 to 48 of Transportation West Building, 1200 The 19 previously established safety hours before the event. Fireworks barges New Jersey Avenue, SE., Washington, zone locations proposed for or launch sites on land used in the DC 20590, between 9 a.m. and 5 p.m., modification by this rule are: Severn locations stated in this rulemaking Monday through Friday, except Federal River and Spa Creek, Annapolis, MD; would also display a sign labeled holidays. We have an agreement with Baltimore Inner Harbor, Patapsco River, ‘‘FIREWORKS—DANGER—STAY the Department of Transportation to use MD, (2 locations); Patuxent River, AWAY’’* * * The sign would be the Docket Management Facility. Calvert County, MD; Chesapeake Bay, affixed to the port and starboard side of Chesapeake Beach, MD; Potomac River, the barge or mounted on a post 3 feet Privacy Act Charles County, MD; Potomac River, above ground level when on land and in Anyone can search the electronic Charles County, MD near Mount close proximity to the shoreline facing form of comments received into any of Vernon; Potomac River, National the water. This sign provides on scene our dockets by the name of the Harbor, MD; Miles River, St. Michaels, notice that the safety zone is or will be individual submitting the comment (or MD; Tred Avon River, Oxford, MD; enforced on that day. The sign will be signing the comment, if submitted on Upper Potomac River, Alexandria, VA; diamond shaped, 4 feet by 4 feet with behalf of an association, business, labor Anacostia River, Washington, DC; a 3-inch orange retro-reflective border. union, etc.). You may review a Privacy Potomac River, Prince William County, The word ‘‘DANGER’’ shall be 10-inch Act notice regarding our public dockets VA; North Atlantic Ocean, Ocean City, black block letters centered on the sign in the January 17, 2008, issue of the NJ; Chesapeake Bay, Norfolk, VA; North with the words ‘‘FIREWORKS’’ and Federal Register (73 FR 3316). Atlantic Ocean, Virginia Beach, VA (2 ‘‘STAY AWAY’’ in 6 inch black block locations); Pamlico River, Washington, letters placed above and below the word Public Meeting NC; and Motts Channel, Banks Channel, ‘‘DANGER’’ respectively on a white We do not now plan to hold a public Wrightsville Beach, NC. Safety zone background. There would also be a meeting. But you may submit a request modifications include revision to dates Coast Guard patrol vessel on scene 30 for one using one of the four methods and minor changes to coordinates that minutes before the display is scheduled define safety zone boundaries. specified under ADDRESSES. Please to start until 30 minutes after its The Coast Guard typically receives explain why you believe a public completion to enforce the safety zone. numerous applications for fireworks meeting would be beneficial. If we The enforcement period for these displays in these general areas. proposed safety zones is from 5:30 p.m. determine that one would aid this Previously, a temporary safety zone was rulemaking, we will hold one at a time to 1 a.m. local time. However, vessels established on an emergency basis for may enter, remain in, or transit through and place announced by a later notice each display. This limited the in the Federal Register. these safety zones during this timeframe opportunity for public comment. if authorized by the Captain of the Port Basis and Purpose Establishing permanent safety zones or designated Coast Guard patrol through notice and comment personnel on scene, as provided for in In this rule the Coast Guard proposes rulemaking provides the public the to revise the list of permanent safety 33 CFR 165.23. opportunity to comment on the safety This rule is being proposed to provide zones at 33 CFR 165.506, established for zone locations, size, and length of time fireworks displays at various locations for the safety of life on navigable waters the zones will be enforced. during the events and to give the marine within the geographic boundary of the Each year organizations in the Fifth community the opportunity to comment Fifth Coast Guard District. For a Coast Guard District sponsor fireworks on the proposed zone locations, size, description of the geographical area of displays in the same general location and length of time the zones will be the Fifth District and subordinate Coast and time period. Each event uses a barge active. Guard Sectors—Captain of the Port or an on-shore site near the shoreline as Zones, please see 33 CFR 3.25. the fireworks launch platform. A safety Discussion of Proposed Rule Currently there are 73 permanent safety zone is used to control vessel movement The Coast Guard proposes to revise zones that are established for annually within a specified distance surrounding the regulations at 33 CFR 165.506 by recurring fireworks displays within the the launch platforms to ensure the adding the following 3 permanent safety geographic boundaries of the Fifth Coast safety of persons and property. Coast zone locations. Guard District. Guard personnel on scene may allow The Coast Guard proposes to revise boaters within the safety zone if North Atlantic Ocean, Atlantic City, NJ, the list of permanent safety zones at 33 conditions permit. Safety Zone CFR 165.506, established for fireworks The Coast Guard would publish The waters of the North Atlantic displays, by adding 3 new locations, notices in the Federal Register if an Ocean within a 500 yard radius of the deleting 2 previously established event sponsor reported a change to the fireworks barge located at latitude locations and modifying 19 previously listed event venue or date. In the case 39°20′58″ N, longitude 074°25′58″ W, established locations within the of inclement weather the event usually near the shoreline at Atlantic City, NJ. geographic boundary of the Fifth Coast will be conducted on the day following Guard District. This rule will increase the date listed in the Table to § 165.506. Great Wicomico River, Mila, VA, Safety the total number of permanent safety Coast Guard Captains of the Port would Zone zones to 74 locations for fireworks give notice of the enforcement of each All waters of the Great Wicomico displays within the boundary of the safety zone by all appropriate means to River located within a 420 foot radius of Fifth Coast Guard District. provide the widest dissemination of the fireworks display at approximate

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position latitude 37°50′31″ N, longitude display at approximate position latitude zone locations. The following table 076°19′42″ W near Mila, Virginia. 37°49′54″ N, longitude 076°16′44″ W shows where these 19 existing Cockrell’s Creek, Reedville, VA, Safety near Reedville, Virginia. permanent safety zones are listed within Zone The Coast Guard proposes to revise the Table to 33 CFR 165.506 and regulations at 33 CFR 165.506 by describes the revisions that are being All waters of Cockrell’s Creek located made to these safety zones. within a 420 foot radius of the fireworks modifying 19 existing permanent safety

Table to § 165.506 Number section Location Revision

1 ...... a.11 ...... N. Atlantic Ocean, Ocean City, NJ ...... Event date. 2 ...... b.2 ...... Severn River & Spa Creek, Annapolis, MD ...... Coordinates. 3 ...... b.6 ...... Baltimore Inner Harbor, Patapsco River, MD ...... Event date & coordi- nates. 4 ...... b.7 ...... Baltimore Inner Harbor, Patapsco River, MD ...... Event date & coordi- nates. 5 ...... b.9 ...... Patuxent River, Calvert County, MD ...... Coordinates. 6 ...... b.11 ...... Chesapeake Bay, Chesapeake Beach, MD ...... Coordinates. 7 ...... b.13 ...... Potomac River, Charles County, MD ...... Event date & coordi- nates 8 ...... b.14 ...... Potomac River, Charles County, MD, Mount Vernon ...... Coordinates. 9 ...... b.16 ...... Potomac River, National Harbor, MD ...... Event date & coordi- nates. 10 ...... b.18 ...... Miles River, St. Michaels, MD ...... Coordinates. 11 ...... b.19 ...... Tred Avon River, Oxford, MD ...... Coordinates. 12 ...... b.21 ...... Upper Potomac River, Alexandria, VA ...... Event date. 13 ...... b.22 ...... Anacostia River, Washington, DC ...... Coordinates. 14 ...... b.23 ...... Potomac River, Prince William County, VA ...... Event date & coordi- nates. 15 ...... c.10 ...... Chesapeake Bay, Norfolk, VA ...... Event date. 16 ...... c.16 ...... N. Atlantic Ocean, Virginia Beach, VA ...... Event date. 17 ...... c.17 ...... N. Atlantic Ocean, Virginia Beach, VA ...... Event date. 18 ...... d.7 ...... Pamlico River, Washington, NC ...... Coordinates. 19 ...... d.10 ...... Motts Channel, Banks Channel, Wrightsville Beach, NC ...... Event date.

The Coast Guard proposes to amend disestablishing the following 2 listed for the following safety zones regulations at 33 CFR 165.506 by permanent safety zones. All coordinates reference Datum NAD 1983.

Number Date Location Regulated area

(b) Coast Guard Sector Baltimore—COTP Zone

10 ...... July 4th ...... Patuxent River, Solomons All waters of the Patuxent River within a 400 yard radius of the fire- Island, Calvert County, works barge located at latitude 38°19′03″ N, longitude MD, Safety Zone. 076°26′07.6″ W. 11 ...... July 4th ...... Patuxent River, Solomons All waters of Patuxent River within a 300 yard radius of the fireworks Island, MD, Safety Zone. barge in an area bound by the following points: latitude 38°19′42″ N, longitude 076°28′02″ W; thence to latitude 38°19′26″ N, lon- gitude 076°28′18″ W; thence to latitude 38°18′48″ N, longitude 076°27′42″ W; thence to latitude 38°19′06″ N, longitude 076°27’25’’ W; thence to the point of origin, located near Solomons Island, MD.

Regulatory Analyses benefits under section 6(a)(3) of notifications would also be made to the We developed this proposed rule after Executive Order 12866 or under section local maritime community by issuing considering numerous statutes and 1 of Executive Order 13563. The Office Local Notice to Mariners, Marine executive orders related to rulemaking. of Management and Budget has not information and facsimile broadcasts so Below we summarize our analyses reviewed it under those Orders. mariners can adjust their plans based on 13 of these statutes and We expect the economic impact of accordingly. Notifications to the public executive orders. this proposed rule to be so minimal that for most events will usually be made by a full Regulatory Evaluation is local newspapers, radio and TV stations. Regulatory Planning and Review unnecessary. This finding is based on The Coast Guard anticipates that these This NPRM has not been designated the short amount of time that vessels safety zones will only be enforced 2 to a significant regulatory action under would be restricted from the zones, and 3 times per year. the small zone sizes positioned in low section 3(f) of Executive Order 12866, Small Entities Regulatory Planning and Review, as vessel traffic areas. Vessels would not be supplemented by Executive Order precluded from getting underway, or Under the Regulatory Flexibility Act 13563, Improving Regulation and mooring at any piers or marinas (5 U.S.C. 601–612), we have considered Regulatory Review, and does not require currently located in the vicinity of the whether this proposed rule would have an assessment of potential costs and proposed safety zones. Advance a significant economic impact on a

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substantial number of small entities. Federalism Energy Effects The term ‘‘small entities’’ comprises A rule has implications for federalism We have analyzed this proposed rule small businesses, not-for-profit under Executive Order 13132, under Executive Order 13211, Actions organizations that are independently Federalism, if it has a substantial direct Concerning Regulations That owned and operated and are not effect on State or local governments and Significantly Affect Energy Supply, dominant in their fields, and would either preempt State law or Distribution, or Use. We have governmental jurisdictions with impose a substantial direct cost of determined that it is not a ‘‘significant populations of less than 50,000. compliance on them. We have analyzed energy action’’ under that order because The Coast Guard certifies under 5 this proposed rule under that Order and it is not a ‘‘significant regulatory action’’ U.S.C. 605(b) that this proposed rule, if have determined that it does not have under Executive Order 12866 and is not promulgated, will not have a significant implications for federalism. likely to have a significant adverse effect economic impact on a substantial on the supply, distribution, or use of number of small entities. This rule will Unfunded Mandates Reform Act energy. The Administrator of the Office affect the following entities some of The Unfunded Mandates Reform Act of Information and Regulatory Affairs which may be small entities: The of 1995 (2 U.S.C. 1531–1538) requires has not designated it as a significant owners and operators of vessels Federal agencies to assess the effects of energy action. Therefore, it does not intending to transit or anchor in the their discretionary regulatory actions. In require a Statement of Energy Effects proposed safety zones during the times particular, the Act addresses actions under Executive Order 13211. these zones are enforced. that may result in the expenditure by a Technical Standards These proposed safety zones will not State, local, or Tribal government, in the have a significant economic impact on aggregate, or by the private sector of The National Technology Transfer a substantial number of small entities $100,000,000 (adjusted for inflation) or and Advancement Act (NTTAA) (15 for the following reasons: The more in any one year. Though this U.S.C. 272 note) directs agencies to use enforcement period will be short in proposed rule would not result in such voluntary consensus standards in their duration and, in many of the zones, an expenditure, we do discuss the regulatory activities unless the agency vessels can transit safely around the effects of this rule elsewhere in this provides Congress, through the Office of safety zones. Generally, blanket preamble. Management and Budget, with an permission to enter, remain in, or transit explanation of why using these through these safety zones will be given Taking of Private Property standards would be inconsistent with except during the period that the Coast This proposed rule would not cause a applicable law or otherwise impractical. Guard patrol vessel is present. Before taking of private property or otherwise Voluntary consensus standards are the enforcement period, we will issue have taking implications under technical standards (e.g., specifications maritime advisories widely. Executive Order 12630, Governmental of materials, performance, design, or If you think that your business, Actions and Interference with operation; test methods; sampling organization, or governmental Constitutionally Protected Property procedures; and related management jurisdiction qualifies as a small entity Rights. systems practices) that are developed or and that this rule would have a adopted by voluntary consensus significant economic impact on it, Civil Justice Reform standards bodies. please submit a comment (see This proposed rule meets applicable This proposed rule does not use ADDRESSES) explaining why you think it standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did qualifies and how and to what degree Executive Order 12988, Civil Justice not consider the use of voluntary this rule would economically affect it. Reform, to minimize litigation, consensus standards. eliminate ambiguity, and reduce Assistance for Small Entities Environment burden. Under section 213(a) of the Small We have analyzed this proposed rule Business Regulatory Enforcement Protection of Children under Department of Homeland Fairness Act of 1996 (Pub. L. 104–121), We have analyzed this proposed rule Security Management Directive 023–01 we want to assist small entities in under Executive Order 13045, and Commandant Instruction understanding this proposed rule so that Protection of Children from M16475.lD, which guide the Coast they can better evaluate its effects on Environmental Health Risks and Safety Guard in complying with the National them and participate in the rulemaking. Risks. This rule is not an economically Environmental Policy Act of 1969 If the rule would affect your small significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and business, organization, or governmental environmental risk to health or risk to have made a preliminary determination jurisdiction and you have questions safety that might disproportionately that this action is one of a category of concerning its provisions or options for affect children. actions that do not individually or compliance, please contact the person cumulatively have a significant effect on Indian Tribal Governments listed under FOR FURTHER INFORMATION the human environment. A preliminary CONTACT. The Coast Guard will not This proposed rule does not have environmental analysis checklist retaliate against small entities that Tribal implications under Executive supporting this preliminary question or complain about this Order 13175, Consultation and determination is available in the docket proposed rule or any policy or action of Coordination with Indian Tribal where indicated under ADDRESSES. This the Coast Guard. Governments, because it would not have proposed rule involves implementation a substantial direct effect on one or of regulations within 33 CFR Part 165 Collection of Information more Indian Tribes, on the relationship that establish safety zones on navigable This proposed rule would call for no between the Federal Government and waters of the United States, and, new collection of information under the Indian Tribes, or on the distribution of therefore paragraph (34)(g) of figure 2– Paperwork Reduction Act of 1995 (44 power and responsibilities between the 1 applies. These safety zones are U.S.C. 3501–3520.). Federal Government and Indian Tribes. enforced for the duration of the

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fireworks displays, which are launched conducted on the day following the date notify the public of the enforcement of from or adjacent to navigable waters of listed in the Table to § 165.506. Annual these safety zones by all appropriate the United States and may have notice of the exact dates and times of means to effect the widest publicity potential for negative impact on the the enforcement period of the regulation among the affected segments of the safety or other interest of waterway with respect to each safety zone, the public. Publication in the Local Notice users and shore side activities in the geographical area, and other details to Mariners, marine information event area. The category of activities concerning the nature of the fireworks broadcasts, and facsimile broadcasts includes fireworks launched from event will be published in Local Notices may be made for these events, beginning barges at or near the shoreline that to Mariners and via Broadcast Notice to 24 to 48 hours before the event is generally rely on the use of navigable Mariners over VHF–FM marine band scheduled to begin, to notify the public. waters as a safety buffer. We seek any radio. (c) Contact Information. Questions comments or information that may lead (3) All persons and vessels shall about safety zones and related events to the discovery of a significant comply with the instructions of the should be addressed to the local Coast environmental impact from this Coast Guard Captain of the Port or the Guard Captain of the Port for the area proposed rule. designated on-scene-patrol personnel. in which the event is occurring. Contact Those personnel are comprised of List of Subjects in 33 CFR Part 165 information is listed below. For a commissioned, warrant, and petty description of the geographical area of Harbors, Marine safety, Navigation officers of the U.S. Coast Guard. Other each Coast Guard Sector—Captain of the (water), Reporting and recordkeeping Federal, State and local agencies may Port zone, please see 33 CFR 3.25. requirements, Security measures, and assist these personnel in the (1) Coast Guard Sector Delaware Waterways. enforcement of the safety zone. Upon Bay—Captain of the Port Zone, being hailed by a U.S. Coast Guard For the reasons discussed in the Philadelphia, Pennsylvania: (215) 271– vessel by siren, radio, flashing light or preamble, the Coast Guard proposes to 4944. amend 33 CFR part 165 as follows: other means, the operator of a vessel shall proceed as directed. (2) Coast Guard Sector Baltimore— (b) Notification. (1) Fireworks barges Captain of the Port Zone, Baltimore, PART 165—REGULATED NAVIGATION Maryland: (410) 576–2525. AREAS AND LIMITED ACCESS AREAS and launch sites on land that operate within the regulated areas contained in (3) Coast Guard Sector Hampton 1. The authority citation for part 165 the Table to § 165.506 will have a sign Roads—Captain of the Port Zone, continues to read as follows: affixed to the port and starboard side of Norfolk, Virginia: (757) 483–8567. Authority: 33 U.S.C. 1231; 46 U.S.C. the barge or mounted on a post 3 feet (4) Coast Guard Sector North Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; above ground level when on land Carolina—Captain of the Port Zone, 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. immediately adjacent to the shoreline Wilmington, North Carolina: (877) 229– 107–295, 116 Stat. 2064; Department of and facing the water labeled 0770 or (910) 772–2200. Homeland Security Delegation No. 0170.1. ‘‘FIREWORKS—DANGER—STAY (d) Enforcement Period. The safety 2. Revise § 165.506 to read as follows: AWAY.’’ This will provide on scene zones in the Table to § 165.506 will be notice that the safety zone will be enforced from 5:30 p.m. to 1 a.m. each § 165.506 Safety Zones; Fifth Coast Guard enforced on that day. This notice will day a barge with a ‘‘FIREWORKS— District Fireworks Displays. consist of a diamond shaped sign 4 feet DANGER—STAY AWAY’’ sign on the (a) Regulations. (1) The general by 4 feet with a 3-inch orange retro port and starboard side is on-scene or a regulations contained in 33 CFR 165.23 reflective border. The word ‘‘DANGER’’ ‘‘FIREWORKS—DANGER—STAY apply. shall be 10 inch black block letters AWAY’’ sign is posted on land adjacent (2) The following regulations apply to centered on the sign with the words to the shoreline, in a location listed in the fireworks safety zones listed in the ‘‘FIREWORKS’’ and ‘‘STAY AWAY’’ in the Table to § 165.506. Vessels may not Table to § 165.506. These regulations 6 inch black block letters placed above enter, remain in, or transit through the will be enforced annually, for the and below the word ‘‘DANGER’’ safety zones during these enforcement duration of each fireworks event listed respectively on a white background. periods unless authorized by the in the Table to § 165.506. In the case of (2) Coast Guard Captains of the Port Captain of the Port or designated Coast inclement weather, the event may be in the Fifth Coast Guard District will Guard patrol personnel on scene.

TABLE TO § 165.506 [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.]

Number Date Location Regulated area

(a.) Coast Guard Sector Delaware Bay—COTP Zone

1 ...... July 4th ...... North Atlantic Ocean, The waters of the North Atlantic Ocean within a 500 yard radius of the fire- Bethany Beach, DE, works barge in approximate position latitude 38°32′08″ N, longitude Safety Zone. 075°03′15″ W, adjacent to shoreline of Bethany Beach, DE. 2 ...... Labor Day ...... Indian River Bay, DE, All waters of the Indian River Bay within a 360 yard radius of the fireworks Safety Zone. launch location on the pier in approximate position latitude 38°36′42″ N, longitude 075°08′18″ W, about 700 yards east of Pots Net Point, DE. 3 ...... July 4th ...... North Atlantic Ocean, Re- All waters of the Atlantic Ocean within a 360 yard radius of the fireworks hoboth Beach, DE, barge in approximate position latitude 38°43′01.2″ N, longitude 075°04′21″ Safety Zone. W, approximately 400 yards east of Rehoboth Beach, DE. 4 ...... July 4th ...... North Atlantic Ocean, Av- The waters of the North Atlantic Ocean within a 500 yard radius of the fire- alon, NJ, Safety Zone. works barge in approximate location latitude 39°05′31″ N, longitude 074°43′00″ W, in the vicinity of the shoreline at Avalon, NJ.

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TABLE TO § 165.506—Continued [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.]

Number Date Location Regulated area

5 ...... July 4th, September—2nd Barnegat Bay, Barnegat The waters of Barnegat Bay within a 500 yard radius of the fireworks barge in Saturday. Township, NJ, Safety approximate position latitude 39°44′50″ N, longitude 074°11′21″ W, ap- Zone. proximately 500 yards north of Conklin Island, NJ. 6 ...... July 4th ...... North Atlantic Ocean, The waters of the North Atlantic Ocean within a 500 yard radius of the fire- Cape May, NJ, Safety works barge in approximate location latitude 38°55′36″ N, longitude Zone. 074°55′26″ W, immediately adjacent to the shoreline at Cape May, NJ. 7 ...... July 3rd ...... Delaware Bay, North All waters of the Delaware Bay within a 500 yard radius of the fireworks Cape May, NJ, Safety barge in approximate position latitude 38°58′00″ N, longitude 074°58′30″ Zone. W. 8 ...... August—3rd Sunday ...... Great Egg Harbor Inlet, All waters within a 500 yard radius of the fireworks barge in approximate lo- Margate City, NJ, Safe- cation latitude 39°19′33″ N, longitude 074°31′28″ W, on the Intracoastal ty Zone. Waterway near Margate City, NJ. 9 ...... July 4th, August every Metedeconk River, Brick The waters of the Metedeconk River within a 300 yard radius of the fireworks Thursday. Township, NJ, Safety launch platform in approximate position latitude 40°03′24″ N, longitude September 1st Thursday Zone. 074°06′42″ W, near the shoreline at Brick Township, NJ. 10 ...... July—1st Friday ...... North Atlantic Ocean, At- The waters of the North Atlantic Ocean within a 500 yard radius of the fire- lantic City, NJ, Safety works barge located at latitude 39°20′58″ N, longitude 074°25′58″ W, near Zone. the shoreline at Atlantic City, NJ. 11 ...... July 4th, October—1st North Atlantic Ocean, The waters of the North Atlantic Ocean within a 500 yard radius of the fire- Saturday. Ocean City, NJ, Safety works barge in approximate location latitude 39°16′22″ N, longitude Zone. 074°33′54″ W, in the vicinity of the shoreline at Ocean City, NJ. 12 ...... May—4th Saturday ...... Barnegat Bay, Ocean All waters of Barnegat Bay within a 500 yard radius of the fireworks barge in Township, NJ, Safety approximate position latitude 39°47′33″ N, longitude 074°10′46″ W. Zone. 13 ...... July 4th ...... Little Egg Harbor, Parker All waters of Little Egg Harbor within a 500 yard radius of the fireworks barge Island, NJ, Safety Zone. in approximate position latitude 39°34′18″ N, longitude 074°14′43″ W, ap- proximately 100 yards north of Parkers Island. 14 ...... September—3rd Saturday Delaware River, Chester, All waters of the Delaware River near Chester, PA just south of the Com- PA, Safety Zone. modore Barry Bridge within a 250 yard radius of the fireworks barge lo- cated in approximate position latitude 39°49′43.2″ N, longitude 075°22′42″ W. 15 ...... September—3rd Saturday Delaware River, All waters of the Delaware River near Essington, PA, west of Little Tinicum Essington, PA, Safety Island within a 250 yard radius of the fireworks barge located in the ap- Zone. proximate position latitude 39°51′18″ N, longitude 075°18′57″ W. 16 ...... July 4th, Columbus Day, Delaware River, Philadel- All waters of Delaware River, adjacent to Penns Landing, Philadelphia, PA, December 31st, Janu- phia, PA, Safety Zone. bounded from shoreline to shoreline, bounded on the south by a line run- ary 1st. ning east to west from points along the shoreline at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence to latitude 39°56′29.1″ N, longitude 075°07′56.5″ W, and bounded on the north by the Benjamin Franklin Bridge.

(b.) Coast Guard Sector Baltimore—COTP Zone

1 ...... April—1st or 2nd Satur- Washington Channel, All waters of the Upper Potomac River within a 150 yard radius of the fire- day. Upper Potomac River, works barge in approximate position latitude 38°52′09″ N, longitude Washington, DC, Safe- 077°01′13″ W, located within the Washington Channel in Washington Har- ty Zone. bor, DC. 2 ...... July 4th, December—1st Severn River and Spa All waters of the Severn River and Spa Creek within an area bounded by a and 2nd, Saturday, De- Creek, Annapolis, MD, line drawn from latitude 38°58′40″ N, longitude 076°28′49″ W; thence to cember 31st. Safety Zone. latitude 38°58′26″ N, longitude 076°28′28″ W; thence to latitude 38°58′45″ N, longitude 076°28′07″ W; thence to latitude 38°59′01″ N, longitude 076°28′37″ W, thence to latitude 38°58′57″ N, longitude 076°28′40″ W, lo- cated near the entrance to Spa Creek in Annapolis, Maryland. 3 ...... Saturday before Inde- Middle River, Baltimore All waters of the Middle River within a 300 yard radius of the fireworks barge pendence Day holiday. County, MD, Safety in approximate position latitude 39°17′45″ N, longitude 076°23′49″ W, ap- Zone. proximately 300 yards east of Rockaway Beach, near Turkey Point. 4 ...... July 4th, December 31st Patapsco River (Middle All waters of the Patapsco River, Middle Branch, within an area bound by a Branch), Baltimore, line drawn from the following points: latitude 39°15′22″ N, longitude MD, Safety Zone. 076°36′36″ W; thence to latitude 39°15′10″ N, longitude 076°36′00″ W; thence to latitude 39°15′40″ N, longitude 076°35′23″ W; thence to latitude 39°15′49″ N, longitude 076°35′47″ W; thence to the point of origin, located approximately 600 yards east of Hanover Street (SR–2) Bridge. 5 ...... June 14th, July 4th, Sep- Northwest Harbor (East All waters of the Patapsco River within a 300 yard radius of the fireworks tember—2nd Saturday, Channel), Patapsco barge in approximate position 39°15′55″ N, 076°34′35″ W, located adjacent December 31st. River, MD, Safety Zone. to the East Channel of Northwest Harbor. 6 ...... May—2nd or 3rd Thurs- Baltimore Inner Harbor, All waters of the Patapsco River within a 100 yard radius of the fireworks day or Friday, July 4th, Patapsco River, MD, barge in approximate position latitude 39°17′01″ N, longitude 076°36′31″ December 31st. Safety Zone. W, located at the entrance to Baltimore Inner Harbor, approximately 125 yards southwest of pier 3.

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TABLE TO § 165.506—Continued [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.]

Number Date Location Regulated area

7 ...... May—2nd or 3rd Thurs- Baltimore Inner Harbor, The waters of the Patapsco River within a 100 yard radius of approximate po- day or Friday, July 4th, Patapsco River, MD, sition latitude 39°17′04″ N, longitude 076°36′36″ W, located in Baltimore December 31st. Safety Zone. Inner Harbor, approximately 125 yards southeast of pier 1. 8 ...... July 4th, December 31st Northwest Harbor (West All waters of the Patapsco River within a 300 yard radius of the fireworks Channel) Patapsco barge in approximate position latitude 39°16′21″ N, longitude 076°34′38″ River, MD, Safety Zone. W, located adjacent to the West Channel of Northwest Harbor. 9 ...... July 4th ...... Patuxent River, Calvert All waters of the Patuxent River within a 200 yard radius of the fireworks County, MD, Safety barge located at latitude 38°19′17″ N, longitude 076°27′45″ W, approxi- Zone. mately 800 feet from shore at Solomons Island, MD. 10 ...... July 4th ...... Chester River, Kent Is- All waters of the Chester River, within an area bound by a line drawn from land Narrows, MD, the following points: latitude 38°58′50″ N, longitude 076°15′00″ W; thence Safety Zone. north to latitude 38°59′00″ N, longitude 076°15′00″ W; thence east to lati- tude 38°59′00″ N, longitude 076°14′46″ W; thence southeast to latitude 38°58′50″ N, longitude 076°14′28″ W; thence southwest to latitude 38°58′37″ N, longitude 076°14′36″ W, thence northwest to latitude 38°58′42″ N, longitude 076°14′55″ W, thence to the point of origin, located approximately 900 yards north of Kent Island Narrows (US–50/301) Bridge. 11 ...... July 3rd ...... Chesapeake Bay, Chesa- All waters of the Chesapeake Bay within a 150 yard radius of the fireworks peake Beach, MD, barge in approximate position latitude 38°41′36″ N, longitude 076°31′30″ Safety Zone. W, and within a 150 yard radius of the fireworks barge in approximate posi- tion latitude 38°41′28″ N, longitude 076°31′29″ W, located near Chesa- peake Beach, Maryland. 12 ...... July 4th ...... Choptank River, Cam- All waters of the Choptank River within a 300 yard radius of the fireworks bridge, MD, Safety launch site at Great Marsh Point, located at latitude 38°35′06″ N, longitude Zone. 076°04′46″ W. 13 ...... July—2nd or 3rd Satur- Potomac River, Charles All waters of the Potomac River within a 300 yard radius of the fireworks day and last Saturday. County, MD, Safety barge in approximate position latitude 38°20′05″ N, longitude 077°15′00″ Zone. W, approximately 500 yards north of the shoreline at Fairview Beach, Vir- ginia. 14 ...... May—last Saturday, July Potomac River, Charles All waters of the Potomac River within an area bound by a line drawn from 4th. County, MD—Mount the following points: latitude 38°42′30″ N, longitude 077°04′47″ W; thence Vernon, Safety Zone. to latitude 38°42′18″ N, longitude 077°04′42″ W; thence to latitude 38°42′11″ N, longitude 077°05′10″ W; thence to latitude 38°42′22″ N, lon- gitude 077°05′12″ W; located at the Mount Vernon Estate, in Fairfax Coun- ty, Virginia. 15 ...... October—1st Saturday .... Dukeharts Channel, Poto- All waters of the Potomac River within a 300 yard radius of the fireworks mac River, MD, Safety barge in approximate position latitude 38°13′27″ N, longitude 076°44′48″ Zone. W, located adjacent to Dukeharts Channel near Coltons Point, Maryland. 16 ...... July—Day before Inde- Potomac River, National All waters of the Potomac River within an area bound by a line drawn from pendence Day holiday, Harbor, MD, Safety the following points: latitude 38°47′13″ N, longitude 077°00′58″ W; thence November—3rd Thurs- Zone. to latitude 38°46′51″ N, longitude 077°01′15″ W; thence to latitude day and last Friday, 38°47′25″ N, longitude 077°01′33″ W; thence to latitude 38°47′32″ N, lon- December—1st, 2nd gitude 077°01′08″ W; thence to the point of origin, located at National Har- and 3rd Friday. bor, Maryland. 17 ...... July 4th, September—last Susquehanna River, All waters of the Susquehanna River within a 150 yard radius of the fireworks Saturday. Havre de Grace, MD, barge in approximate position latitude 39°32′42″ N, longitude 076°04′30″ Safety Zone. W, approximately 800 yards east of the waterfront at Havre de Grace, MD. 18 ...... June and July—Saturday Miles River, St. Michaels, All waters of the Miles River within a 200 yard radius of approximate position before Independence MD, Safety Zone. latitude 38°47′42″ N, longitude 076°12′51″ W, located at the entrance to Day holiday. Long Haul Creek. 19 ...... June and July—Saturday Tred Avon River, Oxford, All waters of the Tred Avon River within a 150 yard radius of the fireworks or Sunday before Inde- MD, Safety Zone. barge in approximate position latitude 38°41′24″ N, longitude 076°10′37″ pendence Day holiday. W, approximately 500 yards northwest of the waterfront at Oxford, MD. 20 ...... July 3rd ...... Northeast River, North All waters of the Northeast River within a 300 yard radius of the fireworks East, MD, Safety Zone. barge in approximate position latitude 39°35′26″ N, longitude 075°57′00″ W, approximately 400 yards south of North East Community Park. 21 ...... June—2nd or 3rd Satur- Upper Potomac River, Al- All waters of the Upper Potomac River within a 300 yard radius of the fire- day, July—1st, 2nd or exandria, VA, Safety works barge in approximate position 38°48′37″ N, 077°02′02″ W, located 3rd Saturday, Sep- Zone. near the waterfront of Alexandria, Virginia. tember—1st or 2nd Saturday. 22 ...... March through October, Anacostia River, Wash- All waters of the Anacostia River within a 150 yard radius of the fireworks at the conclusion of ington, DC, Safety barge in approximate position latitude 38°52′13″ N, longitude 077°00′16″ evening MLB games at Zone. W, located near the Washington Nationals Ball Park. Washington Nationals Ball Park. 23 ...... June—last Saturday, Potomac River, Prince All waters of the Potomac River within a 200 yard radius of the fireworks July—3rd, 4th or last William County, VA, barge in approximate position latitude 38°34′07″ N, longitude 077°15′32″ Saturday or Sunday. Safety Zone. W, located near Cherry Hill, Virginia.

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TABLE TO § 165.506—Continued [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.]

Number Date Location Regulated area

(c.) Coast Guard Sector Hampton Roads—COTP Zone

1 ...... July 4th ...... North Atlantic Ocean, All waters of the Atlantic Ocean in an area bound by the following points: lati- Ocean City, MD, Safety tude 38°19′39.9″ N, longitude 075°05′03.2″ W; thence to latitude Zone. 38°19′36.7″ N, longitude 075°04′53.5″ W; thence to latitude 38°19′45.6″ N, longitude 075°04′49.3″ W; thence to latitude 38°19′49.1″ N, longitude 075°05′00.5″ W; thence to point of origin. The size of the safety zone ex- tends approximately 300 yards offshore from the fireworks launch area lo- cated at the high water mark on the beach. 2 ...... May—4th Sunday, Isle of Wight Bay, Ocean All waters of Isle of Wight Bay within a 350 yard radius of the fireworks barge June—3rd Monday, City, MD, Safety Zone. in approximate position latitude 38°22′32″ N, longitude 075°04′30″ W. and June 29th, July 4th, August—1st and 4th Sunday, Sep- tember—1st and 4th Sunday. 3 ...... July 4th ...... Assawoman Bay, All waters of Assawoman Bay within a 360 yard radius of the fireworks Fenwick Island—Ocean launch location on the pier at the West end of Northside Park, in approxi- City, MD, Safety Zone. mate position latitude 38°25′57.6″ N, longitude 075°03′55.8″ W. 4 ...... July 4th ...... Broad Bay, Virginia All waters of the Broad Bay within a 400 yard radius of the fireworks display Beach, VA, Safety in approximate position latitude 36°52′08″ N, longitude 076°00′46″ W, lo- Zone. cated on the shoreline near the Cavalier Golf and Yacht Club, Virginia Beach, Virginia. 5 ...... October—1st Friday ...... York River, West Point, All waters of the York River near West Point, VA within a 400 yard radius of VA, Safety Zone. the fireworks display located in approximate position latitude 37°31′25″ N, longitude 076°47′19″ W. 6 ...... July 4th ...... York River, Yorktown, All waters of the York River within a 400 yard radius of the fireworks display VA, Safety Zone. in approximate position latitude 37°14′14″ N, longitude 076°30′02″ W, lo- cated near Yorktown, Virginia. 7 ...... July 4th ...... Chincoteague Channel, All waters of the Chincoteague Channel within a 360 yard radius of the fire- Chincoteague, VA, works launch location at the Chincoteague carnival waterfront in approxi- Safety Zone. mate position latitude 37°55′40.3″ N, longitude 075°23′10.7″ W, approxi- mately 900 yards southwest of Chincoteague Swing Bridge. 8 ...... May—1st Friday, July 4th James River, Newport All waters of the James River within a 325 yard radius of the fireworks barge News, VA, Safety Zone. in approximate position latitude 36°58′30″ N, longitude 076°26′19″ W, lo- cated in the vicinity of the Newport News Shipyard, Newport News, Vir- ginia. 9 ...... July 9th ...... Chesapeake Bay, Hamp- All waters of the Chesapeake Bay within a 350 yard radius of approximate ton, VA, Safety Zone. position latitude 37°02′23″ N, longitude 076°17′22″ W, located near Buckroe Beach. 10 ...... June—4th Friday, July— Chesapeake Bay, Nor- All waters of the Chesapeake Bay within a 400 yard radius of the fireworks 1st Friday, July 4th. folk, VA, Safety Zone. display located in position latitude 36°57′21″ N, longitude 076°15′00″ W, lo- cated near Ocean View Fishing Pier. 11 ...... July 4th ...... Chesapeake Bay, Virginia All waters of the Chesapeake Bay 400 yard radius of the fireworks display in Beach, VA, Safety approximate position latitude 36°55′02″ N, longitude 076°03′27″ W, located Zone. at the First Landing State Park at Virginia Beach, Virginia. 12 ...... Memorial Day, June—1st Elizabeth River, Southern All waters of the Elizabeth River Southern Branch in an area bound by the and 2nd Friday, Satur- Branch, Norfolk, VA, following points: latitude 36°50′54.8″ N, longitude 076°18′10.7″ W; thence day and Sunday, July Safety Zone. to latitude 36°51′7.9″ N, longitude 076°18′01″ W; thence to latitude 4th, November—4th 36°50′45.6″ N, longitude 076°17′44.2″ W; thence to latitude 36°50′29.6″ N, Saturday, December— longitude 076°17′23.2″ W; thence to latitude 36°50′7.7″ N, longitude 1st Saturday and De- 076°17′32.3″ W; thence to latitude 36°49′58″ N, longitude 076°17′28.6″ W; cember 31st, Janu- thence to latitude 36°49′52.6″ N, longitude 076°17′43.8″ W; thence to lati- ary—1st. tude 36°50′27.2″ N, longitude 076°17′45.3″ W thence to the point of origin. 13 ...... May—2nd Saturday, Sep- Appomattox River, Hope- All waters of the Appomattox River within a 400 yard radius of the fireworks tember—1st Saturday well, VA, Safety Zone. barge in approximate position latitude 37°19′11″ N, longitude 077°16′55″ and Sunday, Decem- W. ber—1st Saturday. 14 ...... July—3rd Saturday ...... John H. Kerr Reservoir, All waters of John H. Kerr Reservoir within a 400 yard radius of approximate Clarksville, VA, Safety position latitude 36°37′51″ N, longitude 078°32′50″ W, located near the Zone. center span of the State Route 15 Highway Bridge. 15 ...... May, June, July, August, North Atlantic Ocean, Vir- All waters of the Atlantic Ocean within a 1000 yard radius of the center lo- September, October— ginia Beach, VA, Safety cated near the shoreline at approximate position latitude 36°51′12″ N, lon- every Wednesday, Fri- Zone A. gitude 075°58′06″ W, located off the beach between 17th and 31st streets. day, Saturday and Sun- day, July 4th. 16 ...... September—4th Saturday North Atlantic Ocean, VA All waters of the Atlantic Ocean within a 350 yard radius of approximate posi- or October—1st Satur- Beach, VA, Safety tion latitude 36°50′35″ N, longitude 075°58′09″ W, located on the 14th day. Zone B. Street Fishing Pier.

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TABLE TO § 165.506—Continued [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.]

Number Date Location Regulated area

17 ...... Friday, Saturday, Sunday North Atlantic Ocean, VA All waters of the Atlantic Ocean within a 350 yard radius of approximate posi- and Monday—Labor Beach, VA, Safety tion latitude 36°49′55″ N, longitude 075°58′00″ W, located off the beach Day Weekend. Zone C. between 2nd and 6th streets. 18 ...... July 4th ...... Nansemond River, Suf- All waters of the Nansemond River within a 350 yard radius of approximate folk, VA, Safety Zone. position latitude 36°44′27″ N, longitude 076°34′42″ W, located near Con- stant’s Wharf in Suffolk, VA. 19 ...... February—4th Saturday, Chickahominy River, Wil- All waters of the Chickahominy River within a 400 yard radius of the fireworks July 4th. liamsburg, VA, Safety display in approximate position latitude 37°14′50″ N, longitude 076°52′17″ Zone. W, near Barrets Point, Virginia. 20 ...... July 4th ...... James River, Williams- All waters of the James River within a 350 yard radius of approximate posi- burg, VA, Safety Zone. tion latitude 37°13′23.3″ N, longitude 076°40′11.8″ W, located near Kingsmill Resort. 21 ...... July—3rd, 4th and 5th ..... Great Wicomico River, All waters of the Great Wicomico River located within a 420 foot radius of the Mila, VA, Safety Zone. fireworks display at approximate position latitude 37°50′31″ N, longitude 076°19′42″ W near Mila, Virginia. 22 ...... July—1st Friday, Satur- Cockrell’s Creek, All waters of Cockrell’s Creek located within a 420 foot radius of the fireworks day and Sunday. Reedville, VA, Safety display at approximate position latitude 37°49′54″ N, longitude 076°16′44″ Zone. W near Reedville, Virginia.

(d.) Coast Guard Sector North Carolina—COTP Zone

1 ...... July 4th, October—1st Morehead City Harbor All waters of the Morehead City Harbor Channel that fall within a 360 yard ra- Friday. Channel, NC, Safety dius of latitude 34°43′01″ N, longitude 076°42′59.6″ W, a position located Zone. at the west end of Sugar Loaf Island, NC. 2 ...... April—2nd Saturday, July Cape Fear River, Wil- All waters of the Cape Fear River within an area bound by a line drawn from 4th, August—3rd Mon- mington, NC, Safety the following points: latitude 34°13′54″ N, longitude 077°57′06″ W; thence day, October—1st Fri- Zone. northeast to latitude 34°13′57″ N, longitude 077°57′05″ W; thence north to day. latitude 34°14′11″ N, longitude 077°57′07″ W; thence northwest to latitude 34°14′22″ N, longitude 077°57′19″ W; thence east to latitude 34°14’22″ N, longitude 077°57′06″ W; thence southeast to latitude 34°14′07″ N, lon- gitude 077°57′00″ W; thence south to latitude 34°13′54″ N, longitude 077°56′58″ W; thence to the point of origin, located approximately 500 yards north of Cape Fear Memorial Bridge. 3 ...... July 4th ...... Green Creek and Smith All waters of Green Creek and Smith Creek that fall within a 300 yard radius Creek, Oriental, NC, of the fireworks launch site at latitude 35°01′29.6″ N, longitude Safety Zone. 076°42′10.4″ W, located near the entrance to the Neuse River in the vicin- ity of Oriental, NC. 4 ...... July 4th ...... Pasquotank River, Eliza- All waters of the Pasquotank River within a 300 yard radius of the fireworks beth City, NC, Safety launch site in approximate position latitude 36°18′00″ N, longitude Zone. 076°13′00″ W, approximately 200 yards south of the east end of the Eliza- beth City Bascule Bridges. 5 ...... July 4th ...... Currituck Sound, Corolla, All waters of the Currituck Sound within a 300 yard radius of the fireworks NC, Safety Zone. barge in approximate position latitude 36°22′48″ N, longitude 075°51′15″ W. 6 ...... July 4th, November—3rd Middle Sound, Figure All waters of the Figure Eight Island Causeway Channel from latitude Saturday. Eight Island, NC, Safe- 34°16′32″ N, longitude 077°45′32″ W, thence east along the marsh to a ty Zone. position located at latitude 34°16′19″ N, longitude 077°44′55″ W, thence south to the causeway at position latitude 34°16′16″ N, longitude 077°44′58″ W, thence west along the shoreline to position latitude 34°16′29″ N, longitude 077°45′34″ W, thence back to the point of origin. 7 ...... June—2nd Saturday, Pamlico River, Wash- All waters of the Pamlico River that fall within a 300 yard radius of the fire- July—1st Saturday ington, NC, Safety works launch site at latitude 35°32′27″ N, longitude 077°03′40.5″ W, lo- after July 4th. Zone. cated 500 yards north of Washington railroad trestle bridge. 8 ...... July 4th ...... Neuse River, New Bern, All waters of the Neuse River within a 360 yard radius of the fireworks barge NC, Safety Zone. in approximate position latitude 35°06′07.1″ N, longitude 077°01′35.8″ W, located 420 yards north of the New Bern, Twin Span, high rise bridge. 9 ...... July 4th ...... Edenton Bay, Edenton, All waters within a 300 yard radius of position latitude 36°03′04″ N, longitude NC, Safety Zone. 076°36′18″ W, approximately 150 yards south of the entrance to Queen Anne Creek, Edenton, NC. 10 ...... July 4th, November—Sat- Motts Channel, Banks All waters of Motts Channel within a 500 yard radius of the fireworks launch urday following Thanks- Channel, Wrightsville site in approximate position latitude 34°12′29″ N, longitude 077°48′27″ W, giving. Beach, NC, Safety approximately 560 yards south of Sea Path Marina, Wrightsville Beach, Zone. NC. 11 ...... July 4th ...... Cape Fear River, All waters of the Cape Fear River within a 600 yard radius of the fireworks Southport, NC, Safety barge in approximate position latitude 33°54′40″ N, longitude 078°01′18″ Zone. W, approximately 700 yards south of the waterfront at Southport, NC. 12 ...... July 4th ...... Big Foot Slough, All waters of Big Foot Slough within a 300 yard radius of the fireworks launch Ocracoke, NC, Safety site in approximate position latitude 35°06′54″ N, longitude 075°59′24″ W, Zone. approximately 100 yards west of the Silver Lake Entrance Channel at Ocracoke, NC.

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TABLE TO § 165.506—Continued [All coordinates listed in the Table to § 165.506 reference Datum NAD 1983.]

Number Date Location Regulated area

13 ...... August—1st Tuesday ...... New River, Jacksonville, All waters of the New River within a 300 yard radius of the fireworks launch NC, Safety Zone. site in approximate position latitude 34°44′45″ N, longitude 077°26′18″ W, approximately one half mile south of the Hwy 17 Bridge, Jacksonville, North Carolina.

Dated: September 12, 2011. notice, including information about the 2011–OPE–0003 in the ‘‘Enter Keyword William D. Lee, negotiated rulemaking process or the or ID’’ search box to locate the Rear Admiral, U.S. Coast Guard, Commander, nomination submission process, appropriate docket.) Regulatory Issues: Fifth Coast Guard District. contact: Wendy Macias, U.S. After consideration of the information [FR Doc. 2011–27645 Filed 10–25–11; 8:45 am] Department of Education, 1990 K Street, received at the regional hearings, in the BILLING CODE 9110–04–P NW., room 8017, Washington, DC roundtable discussions, and in writing, 20006. Telephone: (202) 502–7526. You we have decided to establish a may also e-mail your questions about negotiating committee to address DEPARTMENT OF EDUCATION the nomination submission process to: teacher preparation program issues in [email protected]. Title II of the HEA and in the Teacher 34 CFR Chapter VI Note: For general information about the Education Assistance for College and negotiated rulemaking process, see The Higher Education (TEACH) Grant Negotiated Rulemaking Committee, Negotiated Rulemaking Process for Title IV Program authorized by Title IV of the Negotiator Nominations and Schedule Regulations, Frequently Asked Questions at HEA. of Committee Meetings—Teacher http://www.ed.gov/policy/highered/reg/ We list the topics the committee is Preparation and TEACH Grant hearulemaking/hea08/neg-reg-faq.html. likely to address in the Committee Programs If you use a telecommunications Topics section, below. We intend to select negotiators for the device for the deaf (TDD), call the AGENCY: Office of Postsecondary committee who represent the interests Federal Relay Service (FRS), toll free at Education, Department of Education. significantly affected by the topics 1–800–877–8339. ACTION: Intent to establish negotiated proposed for negotiations. In so doing, rulemaking committees. SUPPLEMENTARY INFORMATION: On May 5, we will follow the requirement in 2011, we published a notice in the Section 492(b)(1) of the HEA that the SUMMARY: We announce our intention to Federal Register (76 FR 25650) individuals selected must have establish a negotiated rulemaking announcing our intent to establish one demonstrated expertise or experience in committee to prepare proposed or more negotiated rulemaking the relevant subjects under negotiation. regulations under Title II and Title IV of committees to develop proposed We will also select individual the Higher Education Act of 1965, as regulations under the HEA. In addition, negotiators who reflect the diversity amended (HEA). The committee will we announced our intent to develop among program participants, in include representatives of organizations these proposed regulations by following accordance with Section 492(b)(1) of the or groups with interests that are the negotiated rulemaking procedures in HEA. Our goal is to establish a significantly affected by the topics Section 492 of the HEA. committee that will allow significantly proposed for negotiation. We request The notice also announced a series of affected parties to be represented while nominations for individual negotiators three regional hearings at which keeping the committee size manageable. who represent key stakeholder interested parties could comment on the The committee may create subgroups constituencies for the issues to be topics suggested by the Department and on particular topics that may involve negotiated to serve on the committee suggest additional topics for additional individuals who are not and we set a schedule for committee consideration for action by the members of the committee. Individuals meetings. negotiating committees. We also held who are not selected as members of the DATES: We must receive your four public roundtable discussions to committee will be able to attend the nominations for negotiators to serve on complement the regional hearings. The meetings, have access to the individuals the committee on or before November hearings and roundtables were held in: representing their constituencies, and 25, 2011. The dates, times, and locations Nashville, Tennessee (roundtable only); participate in informal working groups of the committee meetings are set out in Tacoma, Washington; Chicago, Illinois; on various issues between the meetings. the Schedule for Negotiations section and Charleston, South Carolina. We The committee meetings will be open to under SUPPLEMENTARY INFORMATION, invited parties to comment and submit the public. below. topics for consideration in writing as The Department has identified the well. (Transcripts from the regional following constituencies as having ADDRESSES: Please send your hearings can be found at http:// interests that are significantly affected nominations for negotiators to Wendy www2.ed.gov/policy/highered/reg/ by the topics proposed for negotiations. Macias, U.S. Department of Education, hearulemaking/2011/hearings.html. The Department plans to seat as 1990 K Street, NW., room 8017, Written comments may be viewed negotiators individuals from Washington, DC 20006, or by fax at through the Federal eRulemaking Portal organizations or groups representing (202) 502–7874. You may also e-mail at http://www.regulations.gov. these constituencies: your nominations to Instructions for finding comments are • Postsecondary students, including [email protected]. available on the site under ‘‘How to Use legal assistance organizations that FOR FURTHER INFORMATION CONTACT: For Regulations.gov’’ in the Help section. represent students. information about the content of this Individuals can enter docket ID ED– • Teachers.

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• Financial aid administrators at by members of such an organization or services’’ for the purpose of establishing postsecondary institutions. group. the eligibility of an institution to • Business officers and bursars at participate in the TEACH Grant program Nominations postsecondary institutions. (Section 420L(1) of the HEA); and • Nominations should include: Admissions officers at • The service and repayment • The name of the nominee, the postsecondary institutions. obligations for the TEACH Grant • organization or group the nominee State officials, including officials Program (Subpart E of 34 CFR 686). with teacher preparation program represents, and a description of the approval agencies, State teacher interests that the nominee represents. These topics are tentative. Topics may • licensing boards, higher education Evidence of the nominee’s expertise be added or removed as the process executive officers, chief State school or experience in the subject, or subjects, continues. to be negotiated. officers, State attorneys general, and • Schedule for Negotiations State data system administrators. Evidence of support from • Institutions that offer teacher individuals or groups of the The committee will meet for three preparation programs, including schools constituency that the nominee will sessions on the following dates: represent. of education. • Session 1: January 18–20, 2012. Æ Institutions of higher education The nominee’s commitment that he eligible to receive Federal assistance or she will actively participate in good Session 2: February 27–29, 2012. under Title III, Parts A, B, and F, and faith in the development of the Session 3: April 3–5, 2012. proposed regulations. Title V of the HEA, which include • The first and second day of each Historically Black Colleges and The nominee’s contact information, including address, phone number, fax session will begin at 9 a.m. and end Universities, Hispanic-Serving around 5 p.m. The final day of each Institutions, American Indian Tribally number, and e-mail address. For a better understanding of the session will begin at 9 a.m. and end at Controlled Colleges and Universities, negotiated rulemaking process, 12 p.m. Alaska Native and Native Hawaiian- nominees should review The Negotiated Serving Institutions, Predominantly The meetings will be held at the U.S. Rulemaking Process for Title IV Black Institutions, and other institutions Department of Education at: 1990 K Regulations, Frequently Asked with a substantial enrollment of needy Street, NW., Eighth Floor Conference Questions at http://www.ed.gov/policy/ students as defined in Title III of the Center, Washington, DC 20006. highered/reg/hearulemaking/hea08/neg- HEA. Accessible Format: Individuals with reg-faq.html prior to committing to Æ Two-year public institutions of disabilities can obtain this document in serve as a negotiator. higher education. an accessible format (e.g., braille, large Nominees will be notified whether or Æ print, audiotape, or compact disc) by Four-year public institutions of not they have been selected as contacting the contact person under FOR higher education. negotiators as soon as the Department’s Æ FURTHER INFORMATION CONTACT. Private, non-profit institutions of review process is completed. higher education. Electronic Access to This Document: Æ Private, for-profit institutions of Committee Topics The official version of this document is higher education. The topics the committee is likely to the document published in the Federal • Operators of programs for address are as follows: Register. Free internet access to the alternative routes to teacher • The requirements for institutional official edition of the Federal Register certification. and program report cards on the quality and the Code of Federal Regulations is • Accrediting agencies. of teacher preparation (Section 205(a) of available via the Federal Digital System • Students enrolled in elementary the HEA); at: http://www.gpo.gov/fdsys. At this and secondary education, including • The requirements for State report site you can view this document, as well parents of students enrolled in cards on the quality of teacher as all other documents of this elementary and secondary education. preparation (Section 205(b) of the HEA); Department published in the Federal • School and local educational • The standards to ensure reliability, Register, in text or Adobe Portable agency officials, including those validity, and accuracy of the data Document Format (PDF). To use PDF, responsible for hiring teachers and submitted in report cards on the quality you must have Adobe Acrobat Reader, evaluating teacher performance. of teacher preparation (Section 205(c) of which is available free at this site. The goal of the committee is to the HEA); develop high-quality proposed • The criteria used by States to assess You may also access documents of the regulations that reflect a final consensus the performance of teacher preparation Department published in the Federal of the committee. Consensus means that programs at higher education Register by using the article search there is no dissent by any member of the institutions in the State, the feature at http://www.federalregister. negotiating committee, including the identification of low-performing gov. Specifically, through the advanced committee member representing the programs (Section 207(a) of the HEA), search feature at this site, you can limit Department. An individual selected as a and the consequences of a State’s your search to documents published by negotiator will be expected to represent termination of eligibility of a program the Department. the interests of their organization or (Section 207(b) of the HEA); Program Authority: 20 U.S.C. 1021 et seq., group. If consensus is reached, all • The definition of the term ‘‘high 1070g et seq., 1098a. members of the organization or group quality teacher preparation program’’ for Dated: October 21, 2011. represented by a negotiator are bound the purpose of establishing the by the consensus and are prohibited eligibility of an institution to participate Eduardo M. Ochoa, from commenting negatively on the in the TEACH Grant program (Section Assistant Secretary for Postsecondary resulting proposed regulations. The 420L(1) of the HEA); Education. Department will not consider any such • The definition of the term ‘‘high [FR Doc. 2011–27719 Filed 10–25–11; 8:45 am] negative comments that are submitted quality professional development BILLING CODE 4000–01–P

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FEDERAL COMMUNICATIONS will also be available via ECFS (http:// § 73.622 [Amended] COMMISSION www.fcc.gov/cgb/ecfs/). (Documents 2. Section 73.622(i), the Post- will be available electronically in ASCII, Transition Table of DTV Allotments 47 CFR Part 73 Word 97, and/or Adobe Acrobat.) This under Ohio is amended by removing [MB Docket No. 11–159, RM–11644; DA 11– document may be purchased from the channel 8 and adding channel 31 at 1690] Commission’s duplicating contractor, Cleveland. Best Copy and Printing, Inc., 445 12th [FR Doc. 2011–27592 Filed 10–25–11; 8:45 am] Television Broadcasting Services; Street, SW., Room CY–B402, BILLING CODE 6712–01–P Cleveland, OH Washington, DC 20554, telephone 1–800–478–3160 or via e-mail AGENCY: Federal Communications www.BCPIWEB.com. To request this DEPARTMENT OF THE INTERIOR Commission. document in accessible formats ACTION: Proposed rule. (computer diskettes, large print, audio Fish and Wildlife Service SUMMARY: The Commission has before it recording, and Braille), send an e-mail a petition for rulemaking filed by to [email protected] or call the 50 CFR Part 17 Community Television of Ohio License, Commission’s Consumer and Governmental Affairs Bureau at (202) [FWS–R1–ES–2010–0071; MO 92210–0– LLC (‘‘Community Television’’), the 0009] licensee of station WJW (TV), channel 8, 418–0530 (voice), (202) 418–0432 Cleveland, Ohio, requesting the (TTY). This document does not contain RIN 1018–AX16 substitution of channel 31 for channel 8 proposed information collection at Cleveland. Community Television is requirements subject to the Paperwork Endangered and Threatened Wildlife seeking the channel substitution Reduction Act of 1995, Public Law 104– and Plants; Designation of Critical because a sizeable number of the 13. In addition, therefore, it does not Habitat for Lepidium papilliferum station’s viewers in areas southwest of contain any proposed information (Slickspot Peppergrass) the station’s transmitter were not able to collection burden ‘‘for small business concerns with fewer than 25 AGENCY: Fish and Wildlife Service, receive the station’s over-the-air signal Interior. after it terminated analog service on employees,’’ pursuant to the Small ACTION: June 12, 2009, and commenced post- Business Paperwork Relief Act of 2002, Proposed rule; reopening of transition digital service on its VHF Public Law 107–198, see 44 U.S.C. comment period. 3506(c)(4). channel. Many viewers reporting SUMMARY: We, the U.S. Fish and difficulty receiving WJW (TV)’s signal Provisions of the Regulatory Wildlife Service (Service), announce the report they have no difficulty receiving Flexibility Act of 1980 do not apply to reopening of the comment period on our the UHF stations in the area. Channel 31 this proceeding. Members of the public May 10, 2011, proposal to designate was selected because this was should note that from the time a Notice critical habitat for Lepidium Community Television’s pre-transition of Proposed Rule Making is issued until papilliferum (slickspot peppergrass) digital channel and it has retained much the matter is no longer subject to under the Endangered Species Act of of the channel 31 transmission Commission consideration or court 1973, as amended (Act). We also equipment. review, all ex parte contacts (other than announce the availability of a draft DATES: Comments must be filed on or ex parte presentations exempt under 47 economic analysis (DEA) of the before November 25, 2011, and reply CFR 1.1204(a)) are prohibited in proposed designation and an amended comments on or before December 12, Commission proceedings, such as this required determinations section of the 2011. one, which involve channel allotments. proposal. We are reopening the See 47 CFR 1.1208 for rules governing ADDRESSES: Federal Communications comment period to allow all interested restricted proceedings. Commission, Office of the Secretary, parties an opportunity to comment 445 12th Street, SW., Washington, DC For information regarding proper simultaneously on the proposed rule, 20554. In addition to filing comments filing procedures for comments, see 47 the associated DEA, and the amended with the FCC, interested parties should CFR 1.415 and 1.420. required determinations section. Comments previously submitted on this serve counsel for petitioner as follows: List of Subjects in 47 CFR Part 73 Scott S. Patrick, Esq., Dow Lohnes rulemaking do not need to be PLLC, 1200 New Hampshire Avenue, Television, Television broadcasting. resubmitted, as they will be fully considered in preparation of the final NW., Suite 800, Washington, DC 20036– Federal Communications Commission. rule. 6802. Barbara A. Kreisman, FOR FURTHER INFORMATION CONTACT: Chief, Video Division, Media Bureau. DATES: We will consider comments Joyce L. Bernstein, received on or before December 12, [email protected], Media Bureau, Proposed Rules 2011. Comments must be received by (202) 418–1647. For the reasons discussed in the 11:59 p.m. Eastern Time on the closing SUPPLEMENTARY INFORMATION: This is a preamble, the Federal Communications date. Any comments that we receive synopsis of the Commission’s Notice of Commission proposes to amend 47 CFR after the closing date may not be Proposed Rule Making, MB Docket No. part 73 as follows: considered in the final decision on this 11–159, adopted October 7, 2011, and action. released October 11, 2011. The full text PART 73—RADIO BROADCAST ADDRESSES: of this document is available for public SERVICES Document availability: You may inspection and copying during normal obtain a copy of the DEA via http:// business hours in the FCC’s Reference 1. The authority citation for part 73 www.regulations.gov at Docket No. Information Center at Portals II, CY– continues to read as follows: FWS–R1–ES–2010–0071 or by A257, 445 12th Street, SW., Authority: 47 U.S.C. 154, 303, 334, 336, contacting the office listed under FOR Washington, DC 20554. This document and 339. FURTHER INFORMATION CONTACT.

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Comment submission: You may (b) What areas occupied at the time of Impacts Under Section 4(b)(2) of the submit comments by one of the listing and that contain features Act,’’ below). following methods: essential to the conservation of (6) The use of Public Land Survey (1) Electronically: Go to the Federal Lepidium papilliferum should be System quarter-quarter sections to eRulemaking Portal at http:// included in the designation and why; delineate the proposed critical habitat www.regulations.gov. In the box that (c) The habitat components (primary designation. We used quarter-quarter reads ‘‘Enter Keyword or ID,’’ enter the constituent elements) essential to the sections in this proposed rule because docket number for this proposed rule, conservation of the species, such as they are the most-commonly-used which is FWS–R1–ES–2010–0071, and specific soil characteristics, plant minimum size and method for then click the Search button. You associations, or pollinators, and the delineating land ownership boundaries should then see an icon that reads quantity and spatial arrangement of within the range of Lepidium ‘‘Submit a Comment.’’ Please ensure these features on the landscape needed papilliferum. that you have found the correct to provide for the conservation of the (7) The projected and reasonably rulemaking before submitting your species; likely impacts of climate change on comment. (d) What areas not occupied at the Lepidium papilliferum and on the (2) By hard copy: Submit by U.S. mail time of listing are essential for the critical habitat areas we are proposing. or hand-delivery to: Public Comments conservation of the species, if any, and (8) Whether we could improve or Processing, Attn: FWS–R1–ES–2010– why; and modify our approach to designating 0071; Division of Policy and Directives (e) Special management critical habitat in any way to provide for Management; U.S. Fish and Wildlife considerations or protections that the greater public participation and Service; 4401 N. Fairfax Drive, MS features essential to the conservation of understanding, or to better 2042–PDM; Arlington, VA 22203. Lepidium papilliferum may require, accommodate public concerns and We will post all comments on including managing for the potential comment. http://www.regulations.gov. This effects of climate change. (9) Information on the extent to which generally means that we will post any (3) Land use designations and current the description of economic impacts in personal information you provide us or planned activities in the proposed the DEA is reasonable and accurate. (see the Public Comments section below critical habitat areas and their possible (10) The likelihood of adverse social for more information). impacts on proposed critical habitat. reactions to the designation of critical FOR FURTHER INFORMATION CONTACT: (4) Any reasonably foreseeable habitat, as discussed in the DEA, and Brian T. Kelly, State Supervisor, Idaho economic, national security, or other how the consequences of such reactions, Fish and Wildlife Office, 1387 S. relevant impacts that may result from if likely to occur, would relate to the Vinnell Way, Room 368, Boise, ID designating any area that may be conservation and regulatory benefits of 83709, by telephone (208–378–5243), or included in the final designation. We the proposed critical habitat by facsimile (208–378–5262). Persons are particularly interested in any designation. who use a telecommunications device impacts on small entities, and the If you submitted comments or for the deaf (TDD) may call the Federal benefits of including or excluding areas information on the proposed rule (76 FR Information Relay Service (FIRS) at from the proposed designation that are 27184) during the initial or extended 800–877–8339. subject to these impacts. comment period (76 FR 39807) that was SUPPLEMENTARY INFORMATION: (5) Information on whether the open from May 11 through September 9, benefits of an exclusion of any 2011, please do not resubmit them. We Public Comments particular area outweigh the benefits of will incorporate them into the public We will accept written comments and inclusion under section 4(b)(2) of the record as part of this comment period, information during this reopened Act, after considering both the potential and we will fully consider them in the comment period on our proposed impacts and benefits of the proposed preparation of our final determination. critical habitat for Lepidium critical habitat designation. Under Our final determination concerning papilliferum that was published in the section 4(b)(2) of the Act, we may critical habitat will take into Federal Register on May 10, 2011 (76 exclude an area from critical habitat if consideration all written comments and FR 27184), our DEA of the proposed we determine that the benefits of such any additional information we receive designation, and the amended required exclusion outweigh the benefits of during all comment periods. On the determinations provided in this including that particular area as critical basis of public comments, we may, document. We will consider habitat, unless failure to designate that during the development of our final information and recommendations from specific area as critical habitat will determination, find that areas proposed all interested parties. We are result in the extinction of the species. are not essential, are appropriate for particularly interested in comments We are considering the possible exclusion under section 4(b)(2) of the concerning: exclusion of areas under private Act, or are not appropriate for (1) The reasons why we should or ownership, in particular, as we exclusion. should not designate habitat as ‘‘critical anticipate the benefits of exclusion may You may submit your comments and habitat’’ under section 4 of the Act, outweigh the benefits of inclusion in materials concerning the proposed rule including whether there are threats to those areas. We therefore request or DEA by one of the methods listed in the species from human activity, the specific information on: ADDRESSES. We request that you send degree to which threats from human (a) The benefits of including any comments only by the methods activity can be expected to increase due specific areas in the final designation described in ADDRESSES. to the designation, and whether that and supporting rationale, If you submit a comment via http:// increase in threats outweighs the benefit (b) The benefits of excluding any www.regulations.gov, your entire of designation such that the designation specific areas from the final designation comment—including any personal of critical habitat may not be prudent. and supporting rationale, and identifying information—will be posted (2) Specific information on: (c) Whether any specific exclusions on the Web site. We will post all (a) The amount and distribution of may result in the extinction of the hardcopy comments on http:// Lepidium papilliferum habitat; species and why (see ‘‘Consideration of www.regulations.gov as well. If you

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submit a hardcopy comment that comment period for an additional 60 public awareness of the presence of the includes personal identifying days, until September 9, 2011 (76 FR species and the importance of habitat information, you may request at the top 39807). protection, and, where a Federal nexus of your document that we withhold this exists, increased habitat protection for L. Critical Habitat information from public review. papilliferum due to protection from However, we cannot guarantee that we Section 3 of the Act defines critical adverse modification or destruction of will be able to do so. habitat as the specific areas within the critical habitat. In practice, situations Comments and materials we receive, geographical area occupied by a species, with a Federal nexus exist primarily on as well as supporting documentation we at the time it is listed in accordance Federal lands or for projects undertaken used in preparing the proposed rule and with the Act, on which are found those by, or with the authorization or DEA, will be available for public physical or biological features essential permission of, Federal agencies. We are inspection on http:// to the conservation of the species and considering the possible exclusion of www.regulations.gov at Docket No. that may require special management areas under private ownership from the FWS–R1–ES–2010–0071, or by considerations or protection, and designation of critical habitat for L. appointment, during normal business specific areas outside the geographical papilliferum, as we anticipate the hours, at the U.S. Fish and Wildlife area occupied by a species at the time benefits of exclusion may outweigh the Service, Idaho Fish and Wildlife Office it is listed, upon a determination that benefits of inclusion in those areas. (see FOR FURTHER INFORMATION CONTACT). such areas are essential for the The final decision on whether to You may obtain copies of the proposed conservation of the species. If the exclude any areas will be based on the rule and the DEA on the Internet at proposed rule is made final, section 7 of best scientific data available at the time http://www.regulations.gov at Docket the Act will prohibit destruction or of the final designation, including Number FWS–R1–ES–2010–0071, or by adverse modification of critical habitat information obtained during the mail from the Idaho Fish and Wildlife by any activity funded, authorized, or comment period and information about Office (see FOR FURTHER INFORMATION carried out by any Federal agency. the economic impact of designation. CONTACT). Federal agencies proposing actions Accordingly, we have prepared a draft affecting critical habitat must consult economic analysis (DEA) concerning the Background with us on the effects of their proposed proposed critical habitat designation, It is our intent to discuss only those actions, under section 7(a)(2) of the Act. which is available for review and topics directly relevant to the comment (see ADDRESSES section). designation of critical habitat for Consideration of Impacts Under Section Lepidium papilliferum in this 4(b)(2) of the Act Draft Economic Analysis document. For more information on Section 4(b)(2) of the Act requires that The DEA identifies and analyzes the previous Federal actions concerning L. we designate or revise critical habitat potential economic impacts associated papilliferum, refer to the proposed based upon the best scientific data with the proposed critical habitat designation of critical habitat published available, after taking into consideration designation for Lepidium papilliferum. in the Federal Register on May 10, 2011 the economic impact, impact on The DEA describes the economic (76 FR 27184). For more information on national security, or any other relevant impacts of all potential conservation L. papilliferum or its habitat, please impact of specifying any particular area efforts for L. papilliferum; some of these refer to the final listing rule published as critical habitat. We may exclude an costs will likely be incurred regardless in the Federal Register on October 8, area from critical habitat if we of whether we designate critical habitat. 2009 (74 FR 52014), which is available determine that the benefits of excluding The economic impact of the proposed online at http://www.regulations.gov at the area outweigh the benefits of critical habitat designation is analyzed Docket No. FWS–R1–ES–2010–0071 or including the area as critical habitat, by comparing scenarios both ‘‘with from the Idaho Fish and Wildlife Office provided such exclusion will not result critical habitat’’ and ‘‘without critical (see FOR FURTHER INFORMATION CONTACT). in the extinction of the species. habitat.’’ The ‘‘without critical habitat’’ When considering the benefits of scenario represents the baseline for the Previous Federal Actions inclusion for an area, we consider the analysis, considering protections On May 10, 2011, we published a additional regulatory benefits that area already in place for the species (e.g., proposed rule to designate critical would receive from the protection from under the Federal listing and other habitat for Lepidium papilliferum (76 adverse modification or destruction as a Federal, State, and local regulations). FR 27184). We proposed to designate as result of actions with a Federal nexus The baseline, therefore, represents the critical habitat approximately 23,374 (activities conducted, funded, costs incurred regardless of whether hectares (57,756 acres) in four units in permitted, or authorized by Federal critical habitat is designated. The ‘‘with Ada, Elmore, Payette, and Owyhee agencies), the educational benefits of critical habitat’’ scenario describes the Counties in Idaho. We announced a 60- mapping areas containing essential incremental impacts associated day comment period in that proposed features that aid in the recovery of the specifically with the designation of rule, scheduled to close on July 11, listed species, and any benefits that may critical habitat for the species. In other 2011. On June 1, 2011, we received a result from designation due to State or words, these incremental impacts would request from the Governor of Idaho Federal laws that may apply to critical not occur but for the designation. seeking a 60-day extension of the habitat. These incremental impacts produce comment period so that the State of When considering the benefits of the costs that we consider in the final Idaho may coordinate comments exclusion, we consider, among other designation of critical habitat when between the State agencies that may be things, whether exclusion of a specific evaluating the benefits of excluding affected by critical habitat, and to allow area is likely to result in conservation; particular areas under section 4(b)(2) of adequate time for citizens to provide the continuation, strengthening, or the Act. The analysis looks input on the proposed critical habitat encouragement of partnerships; or retrospectively at baseline impacts designation. In response to this request, implementation of a management plan. incurred since the species was listed, on July 7, 2011, we announced in the In the case of Lepidium papilliferum, and forecasts both baseline and Federal Register an extension of the the benefits of critical habitat include incremental impacts likely to occur if

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we finalize the proposed critical habitat the species, this does not appear to be The draft economic analysis designation. a major factor impacting either L. concludes that critical habitat As described above, the DEA papilliferum or its habitat. We therefore designation is not likely to affect levels separates conservation measures into do not anticipate any measurable of economic activity or conservation two distinct categories according to economic impact of critical habitat measures being implemented within the ‘‘without critical habitat’’ and ‘‘with designation for this species on proposed critical habitat area. Unless critical habitat’’ scenarios. The ‘‘without recreation, and this activity was not changes occur to existing conservation critical habitat’’ scenario represents the considered in the draft economic measures or the management of land use baseline for the analysis, considering analysis. activities, the incremental impacts of protections otherwise afforded to the Approximately 95 percent of the critical habitat designation would be species (e.g., under the Federal listing proposed critical habitat area is on limited to the additional administrative and other Federal, State, and local public lands (roughly 86 percent is costs of section 7 consultations for regulations). The ‘‘with critical habitat’’ Federal land managed by the Bureau of Federal agencies, associated with scenario describes the incremental Land Management (BLM)). Of this, 8 considering the potential for adverse impacts specifically due to designation percent is State land, 2 percent is modification of critical habitat. These of critical habitat for the species. In County land (Payette, Ada, Owyhee, and costs are estimated to be $14,200 other words, these incremental Elmore counties, Idaho), and the annually, or $161,000 over a 20-year conservation measures and associated remaining 5 percent covers privately period, based on the present value economic impacts would not occur but owned lands. Commercial and discounted at seven percent. for the designation. Conservation residential develop could result in the Because approximately 86 percent of measures implemented under the loss of Lepidium papilliferum the proposed critical habitat area is baseline (without critical habitat) populations, as well as indirect losses Federal land managed by the BLM, the scenario are described qualitatively through the development of proposed critical habitat designation is within the DEA, but economic impacts infrastructure that allows greater access unlikely to generate economic impacts associated with these measures are not to the habitat (e.g., off-road vehicles, beyond administrative costs of section 7 quantified. Economic impacts are only human-ignited wildfires) and habitat consultation. Additionally, a binding quantified for conservation measures fragmentation. Although no Conservation Agreement has been implemented specifically due to the development has taken place within the developed to address the conservation designation of critical habitat (i.e., proposed critical habitat areas since needs of this species on BLM land, and incremental impacts). For a further publication of the proposed rule, BLM already consults with us under description of the methodology of the portions of the critical habitat area are section 7 of the Act to ensure their analysis, see Chapter 2, ‘‘Framework for adjacent to urban and rural activities do not jeopardize the the Analysis,’’ of the DEA. development, or within the Interstate 84 continued existence of the species. The The DEA provides estimated costs of corridor, increasing the probability that BLM intends to continue to manage the foreseeable potential economic the areas may be subject to future these lands for conservation of impacts of the proposed critical habitat development. Lepidium papilliferum, by designation for Lepidium papilliferum The most significant biological threats implementing the specific conservation over the next 20 years, from 2012 to the species are related to increased measures identified in Chapter 3 of the through 2031. We determined that this frequency of wildfire, combined with draft economic analysis. In addition, 20-year timeframe was the appropriate the invasion of nonnative annual project proponents and land managers period for analysis because the grasses. The invasion of nonnative are aware of the species’ presence availability of land-use planning annual grasses provides a continuous throughout its range, and the need to information becomes very limited for source of fuel, which directly consult with the Service for projects that most activities beyond that timeframe. contributes to a dramatic increase in have a Federal nexus that may affect the The DEA identifies potential natural fire frequency. Conservation species. We believe activities on private incremental costs as a result of the measures related to wildfire and lands are unlikely to have a Federal proposed critical habitat designation; nonnative species have been nexus or be subject to section 7 these are those costs attributed to incorporated into a Conservation consultation, based on a review of our critical habitat over and above those Agreement being implemented by the consultation records to date. However, baseline costs attributed to listing and BLM, which applies to 86 percent of the in the case that private lands may other regulatory protections. The DEA proposed critical habitat area. Rights-of- possibly be subject to a Federal permit quantifies economic impacts of L. way and pipeline activities, particularly or funding source in the future (e.g., papilliferum conservation efforts those related to utilities and U.S. Department of Agriculture, Natural associated with the following categories transportation activities, became subject Resources Conservation Service of activity: (1) Wildfire and invasive to section 7 consultation in 2009, when programs or Federal permitting of nonnative species management; (2) the species was listed under the Act, alternative energy projects), the DEA commercial and residential and actions are already being reviewed underestimates potential administrative development; (3) utility and to evaluate potential impacts to the costs due to critical habitat designation transportation activities; and (4) species related to equipment operation in the 5 percent of proposed critical livestock use. The most visible effect to or construction within areas occupied habitat that overlaps the private lands. L. papilliferum and its habitat from by the species. A review of our However, we have no information livestock use is through localized consultation records indicates that no indicating that any such activity will trampling impacts; however, as stated in project modifications have been occur on private lands in the foreseeable the final listing rule, under current required to date, either because the future. management conditions we do not activities were not within Lepidium In conclusion, the Service does not consider this activity to represent a papilliferum habitat, or conservation foresee a circumstance in which critical significant threat to the species. measures were incorporated into project habitat designation will change the Although the final listing rule evaluated designs to avoid impacts to the species outcome of future section 7 recreation as a possible minor threat to or its habitat. consultations. Any conservation

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measures implemented to minimize U.S.C. 802(2)), whenever an agency is their activities have any Federal impacts to the species would very likely required to publish a notice of involvement. Critical habitat be sufficient to also minimize impacts to rulemaking for any proposed or final designation will not affect activities that critical habitat. Therefore, we do not rule, it must prepare and make available do not have any Federal involvement; believe any additional conservation for public comment a regulatory designation of critical habitat only measures would be needed solely to flexibility analysis that describes the affects activities conducted, funded, minimize impacts to critical habitat. effect of the rule on small entities (i.e., permitted, or authorized by Federal Based on this reasoning, we also do not small businesses, small organizations, agencies. In areas where L. papilliferum anticipate critical habitat designation to and small government jurisdictions). is present, Federal agencies already are result in any appreciable incremental However, no regulatory flexibility required to consult with us under economic benefits. Any economic analysis is required if the head of an section 7 of the Act on activities they benefits related to conservation agency certifies the rule will not have a fund, permit, or implement that may activities would flow from the listing of significant economic impact on a affect the species. If we finalize this the species, rather than the designation substantial number of small entities. proposed critical habitat designation, of critical habitat, and would fall within Based on our DEA of the proposed consultations to avoid the destruction or the economic baseline. designation, we provide our analysis for adverse modification of critical habitat As we stated earlier, we are soliciting determining whether the proposed rule would be incorporated into the existing data and comments from the public on would result in a significant economic consultation process. the DEA, as well as all aspects of the impact on a substantial number of small In the DEA, we evaluated the proposed rule and our amended entities. Based on comments we receive, potential economic effects on small required determinations. We may revise we may revise this determination as part entities resulting from implementation the proposed rule or supporting of our final rulemaking. of conservation actions related to the documents to incorporate or address According to the Small Business proposed designation of critical habitat information we receive during the Administration, small entities include for Lepidium papilliferum. As estimated public comment period. In particular, small organizations, such as in Chapter 4 of the DEA, incremental we may exclude an area from critical independent nonprofit organizations; impacts of the proposed designation are habitat if we determine that the benefits small governmental jurisdictions, limited to additional incremental costs of excluding the area outweigh the including school boards and city and of time spent by the Service, Federal benefits of including the area, provided town governments that serve fewer than the exclusion will not result in the 50,000 residents; and small businesses action agency, and any third parties in extinction of the species. (13 CFR 121.201). For example, small section 7 consultation over and above businesses include manufacturing and time spent on the jeopardy analysis Required Determinations—Amended mining concerns with fewer than 500 component of the consultation. Small In our May 10, 2011, proposed rule employees, wholesale trade entities entities may participate in section 7 (76 FR 27184), we indicated that we with fewer than 100 employees, retail consultation as a third party (the would defer our determination of and service businesses with less than $5 primary consulting parties being the compliance with several statutes and million in annual sales, general and Service and the Federal action agency); executive orders until the information heavy construction businesses with less therefore, it is possible that the small concerning potential economic impacts than $27.5 million in annual business, entities may spend additional time of the designation and potential effects special trade contractors doing less than considering critical habitat during on landowners and stakeholders became $11.5 million in annual business, and section 7 consultation for L. available in the DEA. We have now agricultural businesses with annual papilliferum. These incremental made use of the DEA data to make these sales less than $750,000. To determine administrative impacts are the only determinations. In this document, we if potential economic impacts to these potential incremental impacts of critical affirm the information in our proposed small entities are significant, we habitat designation that may be borne by rule concerning Executive Order (E.O.) considered the types of activities that small entities. Some of the forecast 12866 (Regulatory Planning and might trigger regulatory impacts under consultations for L. papilliferum may Review), E.O. 12630 (Takings), E.O. this designation as well as types of involve third parties, such as ranchers, 13132 (Federalism), E.O. 12988 (Civil project modifications that may result. In energy companies (for pipeline Justice Reform), E.O. 13211 (Energy, general, the term ‘‘significant economic projects), or developers. The maximum Supply, Distribution, and Use), the impact’’ is meant to apply to a typical annualized incremental impact to such Unfunded Mandates Reform Act (2 small business firm’s business third parties is anticipated to total U.S.C. 1501 et seq.), the Paperwork operations. $2,810 between 2012 and 2031; such Reduction Act of 1995 (44 U.S.C. 3501 To determine if the proposed costs are expected to be distributed et seq.), the National Environmental designation of critical habitat for between multiple third parties. While Policy Act (42 U.S.C. 4321 et seq.), and Lepidium papilliferum would affect a $2,810 is expected to represent the the President’s memorandum of April substantial number of small entities, we maximum total cost annually, the 29, 1994, ‘‘Government-to-Government considered the number of small entities potential third party cost for each Relations with Native American Tribal affected within particular types of individual consultation is anticipated to Governments’’ (59 FR 22951). However, economic activities, such as commercial be significantly less, on the order of based on the DEA data, we are and residential development. In order to $260 to $1,750 depending on the amending our required determination determine whether it is appropriate for consultation type. Small entities are concerning the Regulatory Flexibility our agency to certify that this rule consequently anticipated to bear a Act (5 U.S.C. 601 et seq.). would not have a significant economic relatively low cost impact as a result of impact on a substantial number of small the designation of critical habitat for L. Regulatory Flexibility Act entities, we considered each industry or papilliferum. We do not believe this Under the Regulatory Flexibility Act, category individually. In estimating the designation will have a significant as amended by the Small Business numbers of small entities potentially impact on these small entities or affect Regulatory Enforcement Fairness Act (5 affected, we also considered whether a substantial number of them. Please

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refer to Appendix A of the DEA of the warranted. Therefore, we are not the measure proposed in the petition proposed critical habitat designation for initiating a status review in response to may be warranted’’ (50 CFR a more detailed discussion of potential this petition. We also conclude that the 424.14(b)(1)). If we find that substantial economic impacts. coastal California gnatcatcher scientific or commercial information In summary, we have considered constitutes a valid subspecies and are was presented, we are required to whether the proposed designation no longer considering whether to promptly conduct a species status would result in a significant economic propose its reclassification to a distinct review, which we subsequently impact on a substantial number of small population segment (DPS) under the summarize in our 12-month finding. entities. Information for this analysis Act. We ask the public to submit to us Petition History was gathered from the Small Business any new information that becomes Administration, stakeholders, and the available concerning the status of, or We received a petition, dated April 9, Service. For the above reasons and threats to, the coastal California 2010, from the Pacific Legal Foundation based on currently available gnatcatcher or its habitat at any time. (PLF), representing the Coalition of information, we certify that if DATES: The finding announced in this Labor Agriculture, and Business promulgated, the proposed designation document was made on October 26, (COLAB), Property Owners Association would not have a significant economic 2011. of Riverside County, and M. Lou Marsh, M.D., on April 12, 2010, to remove the impact on a substantial number of small ADDRESSES: This finding is available on business entities. Therefore, an initial coastal California gnatcatcher from the the Internet at http:// Federal List of Endangered and regulatory flexibility analysis is not www.regulations.gov at Docket Number required. Threatened Wildlife (List) under the Act FWS–R8–ES–2011–0066. Supporting (PLF 2010, pp. 1–9). The petition clearly Authors documentation we used in preparing identifies itself as such and included the this finding is available for public The primary authors of this notice are requisite identification information for inspection, by appointment, during the staff members of the Idaho Fish and the petitioner(s), as required in 50 CFR normal business hours at the U.S. Fish Wildlife Office, Pacific Region, U.S. 424.14(a). This finding addresses the and Wildlife Service, Carlsbad Fish and Fish and Wildlife Service. petition. Wildlife Office, 6010 Hidden Valley Authority Road, Suite 101, Carlsbad, CA 92011. Previous Federal Actions The authority for this action is the Please submit any new information, The coastal California gnatcatcher has Endangered Species Act of 1973, as materials, comments, or questions been the subject of numerous Federal amended (16 U.S.C. 1531 et seq.). concerning this finding to the above Register publications since its inclusion address. as a category two candidate species in Dated: October 17, 2011. FOR FURTHER INFORMATION CONTACT: Jim 1982 (47 FR 58454, December 30, 1982; Eileen Sobeck, Bartel, Field Supervisor, Carlsbad Fish Service 2010, p. 3) (see http:// Acting Assistant Secretary for Fish and and Wildlife Office, U.S. Fish and ecos.fws.gov/speciesProfile/profile/ Wildlife and Parks. Wildlife Service, 6010 Hidden Valley speciesProfile.action?spcode=B08X). On [FR Doc. 2011–27727 Filed 10–25–11; 8:45 am] Road, Suite 101, Carlsbad, CA 92011, by March 22, 1991, the Service published BILLING CODE 4310–55–P telephone at 760–431–9440, or by a 90-day finding addressing seven facsimile to 760–431–9624. Persons who petitions to list five species as use a telecommunications device for the threatened or endangered, including DEPARTMENT OF THE INTERIOR deaf (TDD) may call the Federal three petitions pertaining to the coastal California gnatcatcher (56 FR 12146), Fish and Wildlife Service Information Relay Service (FIRS) at 800–877–8339. and concluded that substantial information was presented to indicate 50 CFR Part 17 SUPPLEMENTARY INFORMATION: that listing might be warranted. This [Docket No. FWS–R8–ES–2011–0066; Background finding led to the September 17, 1991, 92220–1113–0000; ABC Code: C5] Section 4(b)(3)(A) of the Act (16 publication of a proposed rule to list the U.S.C. 1531 et seq.) requires that we coastal California gnatcatcher as Endangered and Threatened Wildlife make a finding on whether a petition to endangered; the public comment period and Plants; 90-Day Finding on a list, delist, or reclassify a species for this proposed rule lasted 6 months, Petition to Delist the Coastal California presents substantial scientific or until March 16, 1992 (56 FR 47053). The Gnatcatcher as Threatened commercial information indicating that proposed rule also constituted our AGENCY: Fish and Wildlife Service, the petitioned action may be warranted. 12-month finding, which the proposed Interior. We are to base this finding on rule referred to as the ‘‘final finding’’, on ACTION: Notice of 90-day petition information provided in the petition, the petition. finding. supporting information submitted with On September 22, 1992, the Service the petition, and information otherwise reopened the public comment period on SUMMARY: We, the U.S. Fish and available in our files. To the maximum the proposed rule to list the coastal Wildlife Service (Service), announce a extent practicable, we are to make this California gnatcatcher as endangered for 90-day finding on a petition to remove finding within 90 days of our receipt of an additional 30 days, from September the coastal California gnatcatcher the petition, and publish our notice of 22, 1992, until October 22, 1992, and (Polioptila californica californica) as a the finding promptly in the Federal notified the public that we needed extra threatened species under the Register. time to obtain and review the Endangered Species Act of 1973, as Our standard for substantial scientific information regarding the taxonomy of amended (Act). Based on our review, we or commercial information within the the coastal California gnatcatcher (57 FR find that the petition does not present Code of Federal Regulations (CFR) with 43686). On March 30, 1993, the Service substantial scientific or commercial regard to a 90-day petition finding is published a final rule to list the coastal information to indicate that delisting the ‘‘that amount of information that would California gnatcatcher as a threatened coastal California gnatcatcher may be lead a reasonable person to believe that species (58 FR 16742). In that rule, we

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did not designate critical habitat, gnatcatcher is a valid subspecies (58 FR its threatened status and indicated that because we had determined that 16742, March 30, 1993; 58 FR 65088, we would not pursue delineation of a designating critical habitat for the December 10, 1993) and affirmed the DPS for the coastal California gnatcatcher was not prudent. coastal California gnatcatcher’s gnatcatcher (Service 2010, p. 36; On March 30, 1993, the same day that threatened status under the Act. http://ecos.fws.gov/docs/ the final listing rule published in the On February 8, 1999, the Service five_year_review/doc3571.pdf). With a Federal Register, we also published a published in the Federal Register (64 recommendation of no change in proposed rule to adopt a special rule FR 5957) a notice of determination that threatened status, the coastal California under section 4(d) of the Act (16 U.S.C. it was prudent to designate critical gnatcatcher maintains its recovery 1531 et seq.) to allow for the take of the habitat for the coastal California priority number of 9C, based on the coastal California gnatcatcher (58 FR gnatcatcher. We subsequently published taxon’s status as a subspecies facing a 65088). On December 10, 1993, the a proposed rule to designate critical high degree of threat with a low Service published in the Federal habitat for the coastal California recovery potential. Register a final rule adopting the special gnatcatcher (65 FR 5945; February 7, rule concerning take of the coastal 2000); announced a reopening of Species Information California gnatcatcher (58 FR 65088). comment period and availability of a For information on the biology and The special rule is codified in the Code draft economic analysis for the February life history of the coastal California of Federal Regulations (CFR) at 50 CFR 7, 2000, proposed rule (65 FR 40073; gnatcatcher, see the 2010 coastal 17.41(b). June 29, 2000); and published a final California gnatcatcher 5-year review In a Memorandum Opinion and Order rule designating critical habitat for the (Service 2010, pp. 6–11). filed in the U.S. District Court for the coastal California gnatcatcher (65 FR District of Columbia on May 2, 1994 63679; October 24, 2000). Evaluation of Information for This (Building Industry Association of In response to a June 11, 2002, court Finding Southern California et al. v. Babbitt), the ruling from the U.S. District Court for Under section 3(16) of the Act, we Court vacated the listing determination the Central District of California may consider for listing any species, for the coastal California gnatcatcher, (Building Industry Association of including subspecies, of fish, wildlife, stating the Secretary of the Interior Southern California et al. v. Norton), the or plants, or any DPS of vertebrate fish should have made available the raw Service published a proposed rule to or wildlife that interbreeds when mature data that formed the basis of Dr. revise designated critical habitat for the (16 U.S.C. 1532(16)). Such entities are Jonathan Atwood’s report (Atwood coastal California gnatcatcher on April considered eligible for listing under the 1991) that concluded subspecies 24, 2003 (68 FR 20228). In this proposed Act (and, therefore, are referred to as recognition for the coastal California rule, the Service reconsidered the listable entities), should we determine gnatcatcher. We subsequently made economic impacts associated with that they meet the definition of an these data available to the public for designating any particular area as endangered or threatened species. review and comment on June 2, 1994, critical habitat, announced that we were Section 4 of the Act (16 U.S.C. 1533) for a period of 60 days, until August 1, considering whether the listing of the and its implementing regulations at 50 1994 (59 FR 28508). On June 16, 1994, coastal California gnatcatcher should be CFR 424 set forth the procedures for the Court reinstated the threatened amended as a DPS in light of a study by adding a species to, or removing a status for the coastal California Zink et al. (2000) questioning the species from the List. A species may be gnatcatcher until the public could genetic distinctiveness of the coastal determined to be an endangered or review and comment on the raw data California gnatcatcher, and opened a 60- threatened species due to one or more analyzed by Atwood. day period for public comments (68 FR of the five factors described in section Before the comment period for the 20228). On April 8, 2004, the Service 4(a)(1) of the Act: June 2, 1994, Federal Register published two documents related to the (A) The present or threatened publication ended, we extended that coastal California gnatcatcher: The first destruction, modification, or public comment period (59 FR 38426, reopened the public comment period on curtailment of its habitat or range; July 28, 1994), and we subsequently the proposed determination of a DPS of (B) Overutilization for commercial, extended it two more times, on August the coastal California gnatcatcher (69 FR recreational, scientific, or educational 26, 1994 (59 FR 44125), and October 25, 18515), and the second was a notice of purposes; 1994 (59 FR 53628). Therefore, the availability of draft economic analysis (C) Disease or predation; public comment period on data and a public hearing on the proposed (D) The inadequacy of existing pertaining to the subspecific taxonomy April 24, 2003, designation of critical regulatory mechanisms; or of the coastal California gnatcatcher habitat (69 FR 18516). The Service (E) Other natural or manmade factors lasted from June 2, 1994, until published its final rule concerning the affecting its continued existence. December 1, 1994. Further, on revised designation of critical habitat on We must consider these same five December 27, 1994, we reopened the December 19, 2007 (72 FR 72009), for factors in delisting a species. We may public comment period on those data the coastal California gnatcatcher. In delist a species according to 50 CFR for an additional 30 days, until January that Federal Register publication, we 424.11(d) if the best available scientific 26, 1995 (59 FR 66509). announced that we were continuing to and commercial data indicate that the On March 27, 1995, the Service evaluate whether the current listing of species is neither endangered nor published in the Federal Register (60 the coastal California gnatcatcher as a threatened for the following reasons: FR 15693) an extensive review of the subspecies under the Act should be (1) The species is extinct; Atwood data (including independent retained or changed. (2) The species has recovered and is scientific analyses of the Atwood data) In 2010, we completed a 5-year status no longer endangered or threatened; or received during the public comment review of the coastal California (3) The original scientific data used at periods concerning the subspecies gnatcatcher (Service 2010, pp. 1–51). the time the species was classified were classification of the coastal California After analyzing all available in error. gnatcatcher. We affirmed our earlier information, including Zink et al. In making this 90-day finding, we determination that the coastal California (2000), we recommended no change in evaluated whether information

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regarding the coastal California not a distinct break in character listed subspecies and questioned if gnatcatcher, as presented in the petition distribution markers, which could information from one scientific and other information available in our support a subspecies classification. publication was sufficient to overrule files, is substantial, thereby indicating (3) Skalski et al. (2008, pp. 199–220) information from multiple, previously that the petitioned action may be determined that Atwood’s data sets published, scientific papers that warranted. The petition did not assert were confounded: many of Atwood’s acknowledge the distinctiveness of the that the coastal California gnatcatcher is specimens may not have been coastal California gnatcatcher and lend extinct, nor do we have information in representative of wild gnatcatchers.’’ support to its retention as a listed our files indicating that the coastal The first issue presented by the subspecies. The Service also received California gnatcatcher is extinct. The petitioners refers to Zink et al. (2000, comments from peer-reviewers, the petition did not assert that the coastal pp. 1394–1405), which asserts that the majority of which cautioned against California gnatcatcher has recovered morphological differences (i.e., plumage putting too much weight on Zink et al.’s and is no longer endangered or coloration, body size) identified by (2000) conclusions and questioned threatened, nor do we have information Atwood (1988, pp. iii–vii, 1–74; 1991, whether the analysis by Zink et al. in our files indicating the coastal pp. 118–133) do not represent genetic (2000, pp. 1394–1405) supported a California gnatcatcher has recovered. differentiation that supports subspecies change of the coastal California The petition also did not contain any classification. Zink et al. (2000, p. 1399) gnatcatcher’s subspecific status (2000, information regarding threats to the examined variation within the pp. 1394–1405). coastal California gnatcatcher. We mitochondrial (mt) mtDNA control In 2004, the Service also convened a recently completed a 5-year status region and three mtDNA genes of the panel of seven Federal scientists (five review in which we determined that the coastal California gnatcatcher and Service biologists not associated with threats found at the time of listing concluded the genetic information does the listing of the coastal California remain, and we recommended that the not support recognition of the coastal gnatcatcher, one Smithsonian Institute coastal California gnatcatcher retain its California gnatcatcher as a subspecies. biologist, and one National Park Service threatened status (Service 2010, pp. 11– Zink et al. (2000) does not state that biologist) to discuss and evaluate how 35). The petition asserts that the original Polioptila californica should have no well scientific evidence supports the scientific data used at the time the subspecies, but instead suggests that following statements: currently recognized subspecies may coastal California gnatcatcher was listed (1) The coastal California gnatcatcher not be equivalent to ecologically as Threatened under the Act were in (Polioptila californica californica) is a significant units. error. Our evaluation of the information valid subspecies. included with the petition is presented As a result of uncertainty in the subspecies status of the coastal (2) The coastal California gnatcatcher below. is discrete (substantially divergent in The petitioners claim the coastal California gnatcatcher raised by Zink et physical, physiological, ecological, California gnatcatcher is not a valid al. (2000, pp. 1394–1405), in 2003 and genetic, or behavioral characters) from subspecies and request we remove the 2004 the Service solicited public other portions of the species. coastal California gnatcatcher from the comments on a proposed determination (3) Loss of the coastal California List. The petitioners present an of a DPS for the coastal California unpublished literature review prepared gnatcatcher (68 FR 20228; 69 FR 18515). gnatcatcher would represent a for the Pacific Legal Foundation by Dr. Public comments received in 2004 on significant diminution of the species as Matthew A. Cronin (2009, in litt. pp. 1– this issue were highly polarized, though a whole (in terms of evolutionary legacy 18), which reviewed ‘‘* * * post-listing most expressed concern with the or range of biological characteristics studies to explain why the subspecies validity or usefulness of redefining the represented within the species). classification for the California coastal California gnatcatcher as a DPS. (4) The coastal California gnatcatcher gnatcatcher is no longer tenable’’ (PLF Some commenters advocated delisting is neither a valid subspecies nor a 2010, p. 4). The petition presented two the coastal California gnatcatcher and discrete and significant portion of the published journal articles, Zink et al. asserted that the application of the DPS species. (2000, pp. 1394–1405) and Skalski et al. policy was inappropriate. They argued (5) The mtDNA evidence presented by (2008, pp. 199–220), supporting three that the information presented by Zink Zink et al. (2000) alone constitutes issues of concern raised by Cronin et al. (2000, pp. 1394–1405) challenging sufficient information to overturn the (2009, in litt. pp. 1–18). The issues of the subspecies classification for the existing taxonomy. concern raised by Cronin and stated in coastal California gnatcatcher Overall, panelists supported retaining the petition are: superseded over 100 years of previously the coastal California gnatcatcher as a (1) ‘‘Zink et al. (2000, pp. 1394–1405) published taxonomic treatments subspecies under the Act for reasons determined that Atwood’s observed recognizing morphological including (but not limited to): morphological characteristic changes distinctiveness to varying degrees (1) ‘‘There is evidence showing the are not representative of genetic within the greater California gnatcatcher coastal California gnatcatcher differs in differentiation, which differentiation taxon, including (Brewster 1881, p. 103; several morphological characters from could support a subspecies Brewster 1902, p. 210; Thayer and gnatcatcher populations farther south classification. The Zink study’s Bangs 1907, p. 138; Grinnell 1926, p. (body plumage color, tail length, conclusion is all the more significant 496; Grinnell 1928, p. 227; van Rossem amount of white in tail, and brownish given that Atwood was a co-author. In 1931, p. 35; Hellmayr 1934, p. 508; AOU plumage in females). All authorities their paper, Zink and Atwood expressly 1957, p. 451; Miller et al. 1957, pp. 204– have recognized it as a distinct taxon state that P. californica should have no 205; Mayr and Paynter 1964, pp. 449– based on its physical appearance since subspecies. 450; Atwood 1988, p. 61; Atwood 1991, it was first described. While some doubt (2) Skalski et al. (2008, pp. 199–220) p. 127; Phillips 1991, p. 25; Mellink and has been cast on recent analyses of determined that Atwood’s statistical Rea 1994, p. 53; Howell and Webb 1995, morphological data by Atwood (1991), analyses were seriously flawed because p. 578). However, many public problems with that analysis do not Atwood’s supposed diagnostic commenters advocated the retention of invalidate previous and subsequent characters support a geographic cline, the coastal California gnatcatcher as a morphological work (Grinnell 1926, van

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Rossem 1931, Mellink and Rea 1994).’’ characteristics present in the species. such as mtDNA, may not accurately (VanderWerf, in litt. 2004, p. 1). Although the adaptive significance of reflect the genetic differences among (2) Although Zink et al. (2000) the morphological differences has not populations due to random genetic concluded that mitochondrial DNA does been investigated, it is possible they effects (Funk et al. 2007, pp. 1287– not support the existence of a represent important adaptations to the 1288). subspecies of Polioptila californica, local environment, and that their loss We acknowledge that the taxonomic ‘‘mtDNA represents only a single would diminish the species classification of the coastal California genetic marker among many potential evolutionary legacy.’’ (VanderWerf, in gnatcatcher has been the subject of markers that could provide an litt. 2004, pp. 1–2). considerable scientific debate. The indication of population subdivision, (7) ‘‘Zink et al. (2000) provide some Service also addresses the information subspecies, or local adaptation. Other interesting information on the presented by Zink et al. (2000) in a molecular markers with higher mutation evolutionary history of [gnatcatcher] recent 5-year review for the coastal rates may reveal more recent patterns of populations, but the argument that the California gnatcatcher (Service 2010, pp. divergence and would be more likely to California gnatcatcher is not distinct 4–5). Species experts have recognized show population differentiation, such as from other populations is based on a the coastal California gnatcatcher as a nuclear genetic markers, which might be single genetic character, mtDNA, and distinct taxon based on its physical linked to selected traits and would be this is a far too narrow and limited appearance since it was first described, expected to evolve more rapidly than technique for making determinations of and the taxon is recognized as a distinct mtDNA. None of these other markers taxonomic validity. Most features of an subspecies by the American have been investigated’’ (VanderWerf, in organism are determined by multiple Ornithologists Union (AOU 1957, p. litt. 2004, pp. 1–2). (nuclear) genes, not by mtDNA. 451). Some doubt has been cast on (3) ‘‘Phylogenetic reconstructions and Taxonomists and other biologists analyses of morphological data by taxonomic determinations should be, interested in evolutionary units cannot Atwood (1991, pp. 118–133) (e.g., and usually are, based on a variety of ignore available data on other aspects of Cronin 1997, p. 663), but problems with morphological, genetic (including the genome and physical and ecological those analyses do not invalidate nuclear and mtDNA), and behavioral characters (Crandall et al. 2000). Under previous and subsequent morphological evidence.’’ (VanderWerf, in litt. 2004, the very narrow criterion of Zink et al. work (Grinnell 1926, pp. 493–500; van p. 2). (2000) few subspecies would be valid, Rossem 1931, pp. 36–37; Phillips 1991, (4) ‘‘Patterns in mtDNA variations can and many full species would not be pp. 25–26; Mellink and Rea 1994, pp. be extremely variable and may or may recognized, despite abundant and 50–62). Analysis by Zink et al. (2000, p. not have anything to do with the definitive data that they are no longer 1402) suggested that the northern patterns seen in nuclear markers, or capable of interbreeding with other population of California gnatcatchers with morphological, ecological, species (Avise 2004).’’ (VanderWerf, in does not appear to be unique, and that physiological, or behavioral data, and litt. 2004, pp. 2–3). not all recognized subspecies equate to therefore are often not reflective of The panel concluded that the evolutionary significant units, although important differences between species, scientific evidence: (1) Substantially they were unable to expressly state that subspecies or populations. Patterns of supports that the coastal California P. californica should have no genetic variation can be totally different gnatcatcher is a valid subspecies; (2) subspecies, as claimed in the petition. from, and uninformative about, substantially supports that the coastal We concluded in our 5-year review important adaptive differences between California gnatcatcher is discrete from (Service 2010, pp. 4–5), that Zink et al. taxa (Crandall et al. 2000). Besides the other portions of the species; (3) (2000, pp. 1394–1405) was insufficient California gnatcatcher, there are many substantially supports that the loss of to disregard the existing taxonomic examples in which mtDNA evidence the coastal California gnatcatcher would status of the coastal California failed to detect documented differences represent a significant diminution of the gnatcatcher and the information from in morphology, nuclear DNA and species as a whole; (4) offers little multiple scientific papers that support ecological adaptation, including the support for the assertion that the coastal subspecies classification of P.c. cali- Common raven (Omland et al. 2000), California gnatcatcher is neither a valid fornica. We affirm that conclusion here. Orchard oriole (Baker et al. 2003), subspecies nor a discrete and significant We conclude that the information and Florida grasshopper sparrow (Bulgin et portion of the species; and (5) displays analysis in Zink et al. 2000 does not al. 2003), and Swamp sparrows little support that the mtDNA evidence present substantial information that the (Greenberg et al. 1998).’’ (VanderWerf, presented by Zink et al. (2000, pp. current subspecies taxonomic in litt. 2004, p. 2). 1394–1405) alone constitutes sufficient classification of the coastal California (5) ‘‘The most comprehensive review information to overturn the existing gnatcatcher may be in error. of available mtDNA data was conducted taxonomy. The panel also noted that The second issue presented by the by Funk and Omland (2003), who found further decision on the status of the petitioners refers to Skalski et al. (2008, that 23 percent of 2,319 species showed taxon should wait for analyses of a pp. 199–220) and the assertion that the evidence of paraphyly or polyphyly variety of morphological, genetic statistical analyses applied to the based on mtDNA (sharing of mtDNA (including nuclear and mtDNA), and morphological data (collected by haplotypes among species), and they behavioral evidence. Atwood in determining the subspecies concluded that the causes of this must In 2005, Edwards et al. (p. 6552) status of the coastal California be understood to avoid erroneous asserted that nuclear genes, not mtDNA, gnatcatcher) were not appropriate phylogenetic interpretations.’’ should have priority in determining statistical techniques for determining (VanderWerf, in litt. 2004, p. 2). avian species delimitation. subspecific species classification. The (6) ‘‘Loss of the coastal California Additionally, Haig and Winker (2010, issue Skalski et al. (2008, pp. 199–220) gnatcatcher would substantially pp. 172, 174) asserted the best approach raises concerns the use of numerous decrease the species’ range and, since it for subspecies recognition is to include tests of equality of sample means, occurs in a somewhat different habitat multiple characters (mtDNA, nuclear cluster analysis, and discriminant type from other populations, would DNA, morphology) and that reliance on analysis (Atwood 1991; Atwood, in litt. diminish the ecological range of a single locus with unique properties, 1994; Link and Pendleton, in litt. 1994;

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McDonald et al., in litt. 1994; Messer, in and support 30° north latitude as the incomplete, censored, or otherwise litt. 1994, Newton, in litt. 1994), which southern subspecific boundary of P.c. inadequate. Furthermore, we concluded supported the subspecies classification. californica (60 FR 15698; March 27, that the analysts of the five independent Skalski et al. (2008, pp. 199–220) assert 1995). We continue to agree that reviews of Atwood’s 1991 data took these analyses are subject to high rates Atwood’s conclusions are reasonable adequate care to remove potential of false positives (Type I error) and because they are based on scientifically effects of confounding of specimen age therefore determination of classification sound methodology that represents the and collection area (60 FR 15695; March as a subspecies should be based on best available scientific and commercial 27, 1995). analyses designed to detect specific data available (60 FR 15699; March 27, We conclude that the petitioner did alternative hypotheses, such as step and 1995), as required in 50 CFR 424.11(d). not present substantial new information spline regression, while being The final issue presented by the regarding the subspecific status of the insensitive to the sample location petitioners also refers to Skalski et al. coastal California gnatcatcher. The distributions (Skalski et al. 2008, (2008, pp. 199–220) and their assertion genetic information provided in the p. 217). that ‘‘foxing’’ (the change in feather petition (Zink et al. 2000) and assertions We examined this paper and color associated with time after of improper statistical analyses (Skalski determined the statistical analysis preparation of the specimen) of museum et al. 2008) have been the focus of conducted by Skalski et al. (2008, pp. specimens might have biased Atwood’s several Service (Service 2010) and 210–212), a spline regression model original and subsequent analysis of independent scientific reviews (Link using the log-length of the white spot on phenotypic characters, including and Pendleton, in litt. 1994; Atwood, in the sixth rectrix (tail feather) of the plumage brightness (Atwood 1988, pp. litt. 1994; McDonald et al., in litt. 1994; California gnatcatcher, was a new iii–vii, 1–74; 1991, 118–133), by Messer, in litt. 1994; Newton, in litt. interpretation of old data and examined confounding the specimen’s year of 1994; Mellink and Rea 1994; only one character, as an example of the collection with measures of brightness VanderWerf, in litt. 2004) and the statistical analysis of the 31 that Atwood of plumage. Significantly, Skalski et al. Service has concluded that the (1988, pp. iii–vii, 1–74; 1991, 118–133) (2008) did not reexamine the specimens information is insufficient to support analyzed in his research. Skalski’s evaluated by Atwood, but instead reclassification (see Service 2010, pp. 1– analysis of this character, in contrast to constructed scatterplot diagrams that 51). Issues regarding morphological Atwood’s analysis, did not detect compared the area of specimen analyses and specimen quality have also variation in the character consistent collection (latitude) with time (year) been considered by the Service and by with subspecific designations within the collected. numerous other taxonomic California gnatcatcher. However, the Mellink and Rea (1994, pp. 50–62), in examinations, all of which support the Service concludes the results of this their analyses of coastal California subspecific status of the coastal restrictive analysis do not present gnatcatcher taxonomy, collected California gnatcatcher (Grinnell 1926, substantial evidence supporting samples from the field and specimens pp. 493–500; van Rossem 1931, pp. 36– potential revision of the subspecific from museums for comparison of 37; Phillips 1991, pp. 25–26; Mellink taxonomic classification of the coastal genetic differences. The petition argues and Rea 1994, pp. 50–62). We hereby California gnatcatcher. While the issue that the study skins analyzed by Mellink reaffirm our determination and of concern raised by Skalski et al. (2008, and Rea (1994) were also subject to recognition of the coastal California pp. 199–220) and the petitioners relates foxing. However, Mellink and Rea gnatcatcher as a distinct taxon, at the to the validity of the statistical (1994, pp. 52–53) excluded samples that rank of subspecies as Polioptila technique used, and we acknowledge were worn, damaged, or soiled to californica californica. that application of different statistical eliminate discrepancies among samples Finding methods may yield different and concluded that within this species, conclusions, the study’s application of foxing is ‘‘* * * slight and seems In summary, the petition does not alternative methods of data analyses is restricted largely to the gray underparts, present substantial information to limited. Without further analysis of with little or no apparent change in support a finding that the removal of the additional characters, few conclusions brown areas.’’ coastal California gnatcatcher from the can be made as to the appropriate Additionally, as mentioned under the List of Endangered and Threatened taxonomic classification of the coastal second issue presented by the Wildlife may be warranted on the California gnatcatcher. The current petitioners, five independent statistical ground that the coastal California information does not provide analyses were conducted and submitted gnatcatcher is not a valid subspecies. substantial information that the current to the Service, in response to a request The petition presents an unpublished subspecies taxonomic classification of for public comment (59 FR 28508, 59 FR review by Cronin (2009, pp. 1–18) the coastal California gnatcatcher may 38426, 59 FR 44125, 59 FR 53628, 59 FR contending that subspecies be in error. 66509). These analyses (Link and classification for the coastal California We previously analyzed the statistical Pendleton, in litt. 1994; Atwood, in litt. gnatcatcher is not reasonable. The technique utilized to determine 1994; McDonald et al., in litt. 1994; review discusses articles by Skalski et subspecific classification of the coastal Messer, in litt. 1994; Newton, in litt. al. (2008, pp. 1394–1405) and Zink et al. California gnatcatcher and addressed 1994) as well as Mellink and Rea (1994) (2000), that provide analyses of this topic in a publication in the Federal were addressed in the March 27, 1995, Atwood’s (1991) data. We previously Register that determined that the Federal Register publication (60 FR reviewed Atwood’s data (1988 and conclusions reached by Atwood (1991) 15693) announcing our determination 1991) and concluded that Atwood’s were reasonable and were largely that the coastal California gnatcatcher is conclusion that the coastal California consistent with five other independent a valid subspecies and affirming the gnatcatcher is a valid subspecies is and alternative scientific analyses (Link coastal California gnatcatcher’s adequately supported (60 FR 15693, and Pendleton, in litt. 1994; Atwood, in threatened status under the Act (60 FR March 27, 1995). We also convened a litt. 1994; McDonald et al., in litt. 1994; 15695). In that document, we concluded panel of experts in 2004 to consider the Messer, in litt. 1994, Newton, in litt. that there was no justification to support Zink et al. (2000) study. The panel 1994) that were received at that time a claim that Atwood’s 1991 data were concluded that Zink et al. (2000) offers

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little and insufficient support for our recent 5-year review of the species DEPARTMENT OF COMMERCE reconsidering the coastal California (Service 2010, pp. 1–51), confirms that gnatcatcher’s subspecies classification. threats to the coastal California National Oceanic and Atmospheric Our recent status review also concluded gnatcatcher remain. Administration that the coastal California gnatcatcher We have reviewed the petition, as 50 CFR Part 648 represents a valid subspecies (Service well as the literature cited in the 2010, pp. 1–51). petition, and we have evaluated that [Docket No. 110707371–1617–01] The petitioners also assert that the information and information in our Service should overturn the RIN 0648–BB28 files. Based on this review and classification of the coastal California evaluation, we find that the petition gnatcatcher as a subspecies due to Fisheries of the Northeastern United does not present substantial scientific or inappropriate techniques used in States; Atlantic Mackerel, Squid, and commercial information to indicate that Atwood’s (1991) statistical analysis of Butterfish Fisheries; Specifications removal of the coastal California morphological data and present a and Management Measures gnatcatcher from the List may be review and interpretation of two journal warranted. Although we will not AGENCY: National Marine Fisheries articles in support of their claim. The commence a status review in response Service (NMFS), National Oceanic and Service reviewed the articles and to this petition, we will continue to Atmospheric Administration (NOAA), determined that they do not present Commerce. new information; instead they consist of monitor the population status and ACTION: Proposed rule, request for an incomplete interpretation of old data. trends of the coastal California comments. Moreover, the concerns raised by gnatcatcher, potential threats to the coastal California gnatcatcher, and petitioners regarding ‘‘foxing’’ and the SUMMARY: NMFS proposes 2012 statistical technique utilized to analyze ongoing management actions that might be important with regard to the specifications and management the data, were previously considered measures for Atlantic mackerel and and rejected in our March 27, 1995, conservation of the coastal California gnatcatcher across its range. butterfish, and 2012–2014 specifications Federal Register publication affirming for Illex and longfin squid. This is the that the coastal California gnatcatcher Because we conclude that the coastal first year that the specifications are meets the definition of a ‘‘species’’ California gnatcatcher is a valid being recommended for Atlantic under the Act (60 FR 15693), a Service subspecies under the Act, we are no mackerel and butterfish under the status review (Service 2010, pp. 1–51), longer considering whether to propose provisions of the Mid-Atlantic Fishery and a peer-reviewed journal (Mellink its reclassification to a DPS under the Management Council’s (Council) and Rea 1994, pp. 50–62). Act. This document reaffirms our Annual Catch Limit and Accountability Morphological variation within the recognition of the coastal California Measure Omnibus Amendment California gnatcatcher species has been gnatcatcher as a subspecies. We (Omnibus Amendment). The two squid recognized as an indicator of the encourage interested parties to continue species are exempt from these distinctiveness of populations and to gather data that will assist with the requirements because they have a life subspecific groups by numerous conservation of the subspecies. If you cycle of less than 1 year. This action biologists, publications, and the AOU wish to provide information regarding also proposes to adjust the closure before and after Atwood’s conclusion the coastal California gnatcatcher, you threshold for the commercial mackerel that the coastal California gnatcatcher is may submit your information or fishery to 95 percent (from 90 percent), a valid subspecies (Brewster 1881, p. materials to the Field Supervisor, to allow the use of jigging gear to target 103; Brewster 1902, p. 210; Thayer and Carlsbad Fish and Wildlife Office (see longfin squid if the longfin squid fishery Bangs 1907, p. 138; Grinnell 1926, p. ADDRESSES), at any time. is closed due to the butterfish mortality 496; Grinnell 1928, p. 227; van Rossem cap, and to require a 3-inch (76-mm) 1931, p. 35; Hellmayer 1934, p. 508; References Cited minimum codend mesh size in order to AOU 1957, p. 451; Miller et al. 1957, pp. A complete list of references cited is possess more than 2,000 lb (0.9 mt) of 204–205; Paynter 1964, pp. 449–450; available on the Internet at http:// butterfish (up from 1,000 lb (0.45mt)). Atwood 1988, p. 61; Atwood 1991, p. www.regulations.gov and upon request Finally, this rule proposes minor 127; Phillips 1991, p. 25; Mellink and from the Carlsbad Fish and Wildlife corrections in existing regulatory text Rea 1994, p. 53; Howell and Webb 1995, Office (see FOR FURTHER INFORMATION p. 578). Thus, we conclude that the best intended to clarify the intent of the information available indicates that the CONTACT). regulations. These proposed specifications and management coastal California gnatcatcher is a valid Author subspecies and that the original measures promote the utilization and scientific data evaluated and methods of The primary authors of this notice are conservation of the Atlantic Mackerel, analysis used at the time of listing were the staff members of the Carlsbad Fish Squid, and Butterfish (MSB) resource. not in error as suggested by the and Wildlife Office. DATES: Public comments must be received no later than 5 p.m., eastern petitioners. Authority The sole focus of the petition is the standard time, on November 25, 2011. contention that the coastal California The authority for this action is the ADDRESSES: Copies of supporting gnatcatcher is not a valid subspecies Endangered Species Act of 1973, as documents used by the Mid-Atlantic and therefore should be delisted. amended (16 U.S.C. 1531 et seq.). Fishery Management Council (Council), Petitioners do not provide any including the Environmental information related to the other relevant Dated: October 14, 2011. Assessment (EA) and Regulatory Impact factors that the Service considers when Gregory E. Siekaniec, Review (RIR)/Initial Regulatory reviewing proposals to list or delist a Acting Director, U.S. Fish and Wildlife Flexibility Analysis (IRFA), are species, including the factors provided Service. available from: Dr. Christopher M. under subsection 4(a)(1) of the Act. The [FR Doc. 2011–27644 Filed 10–25–11; 8:45 am] Moore, Executive Director, Mid-Atlantic information in Service files, including BILLING CODE 4310–55–P Fishery Management Council, Suite 201,

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800 N. State Street, Dover, DE 19901. fishing years. The specification process August 9, 2011, with final submission The EA/RIR/IRFA is accessible via the also allows for the modification of a on September 15, 2011. NMFS must Internet at http://www.nero.noaa.gov. select number of management measures, review the Council’s recommendations You may submit comments, identified such as closure thresholds, gear to assure that they comply with the FMP by NOAA–NMFS–2011–0245, by any restrictions, and possession limits. The and applicable law, and conduct notice- one of the following methods: Council’s process for establishing and-comment rulemaking to propose • Electronic Submission: Submit all specifications relies on provisions and implement the final electronic public comments via the within the Fishery Management Plan recommendations. Federal e-Rulemaking Portal http:// (FMP) and its implementing regulations, The structure of specifications for the www.regulations.gov. To submit as well as requirements established by mackerel and butterfish fisheries was comments via the e-Rulemaking Portal, the Magnuson-Stevens Act. Specifically, revised by the Council’s recently first click the ‘‘submit a comment’’ icon, section 302(g)(1)(B) of the Magnuson- finalized regulations implementing the then enter NOAA–NMFS–2011–0245 in Stevens Act states that the Scientific the keyword search. Locate the and Statistical Committee (SSC) for each Omnibus Amendment (76 FR 60606, document you wish to comment on Regional Fishery Management Council September 29, 2011), which established from the resulting list and click on the shall provide its Council ongoing annual catch limit (ACL) and ‘‘Submit a Comment’’ icon on the right scientific advice for fishery management accountability measure (AM) provisions of that line. decisions, including recommendations for all of the Council’s FMPs. Following • Mail: To NMFS, Northeast Regional for acceptable biological catch (ABC), the specification of ABC, the revised Office, 55 Great Republic Dr, Gloucester, preventing overfishing, maximum regulations at § 648.22 require the MA 01930. Mark the outside of the sustainable yield, and achieving specification of ACLs, which, if envelope ‘‘Comments on 2012 MSB rebuilding targets. The ABC is a level of exceeded, require payback deductions Specifications.’’ catch that accounts for the scientific from the subsequent year’s catch limit. • Fax: (978) 281–9135, Attn: Aja uncertainty in the estimate of the stock’s In order to avoid ACL overages, and the Szumylo. defined overfishing level (OFL). The associated paybacks when ACLs are Instructions: Comments must be Council’s SSC met on May 26 and 27, exceeded, the regulations also require submitted by one of the above methods 2011, to recommend ABCs for the 2012 the specification of annual catch targets to ensure that the comments are Atlantic mackerel (mackerel) and (ACTs) to provide a buffer for received, documented, and considered butterfish specifications, and the 2012– management. Several specifications, by NMFS. Comments sent by any other 2014 Illex and longfin squid including domestic annual harvest method, to any other address or specifications. (DAH), domestic annual processing individual, or received after the end of The FMP’s implementing regulations (DAP), total allowable level of foreign the comment period, may not be require the involvement of a monitoring fishing (TALFF), and joint venture considered. All comments received are committee in the specification process processing for mackerel (JVP), were a part of the public record and will for each species. Since the Magnuson- previously required in the generally be posted for public viewing Stevens Act requirements for the SSC to implementing regulations for the FMP, on http:www.regulations.gov without recommend ABC became effective, the and remain unchanged by the Omnibus change. All personal identifying monitoring committees’ role has largely Amendment. information (e.g., name, address, etc.) been to recommend any reduction in For mackerel, the Omnibus submitted voluntarily by the sender will catch limits from the SSC-recommended Amendment and Amendment 11 to the be publicly accessible. Do not submit ABCs to offset management uncertainty, MSB FMP (approved on September 30, confidential business information, or and to recommend other management 2011) created distinct allocations for the otherwise sensitive or protected measures (e.g., gear and/or possession commercial and recreational mackerel information. NMFS will accept restrictions) needed for the efficient fisheries. The revised mackerel anonymous comments (enter ‘‘N/A’’ in management of the fishery. The MSB regulations require the specification of the required fields if you wish to remain Monitoring Committee met on May 27, ACTs for both the commercial and anonymous). Attachments to electronic 2011, to discuss specification related comments will be accepted in Microsoft recommendations for the 2012 mackerel recreational mackerel fisheries. For Word or Excel, WordPerfect, or Adobe and butterfish fisheries, and the 2012– butterfish, the regulations require PDF file formats only. 2014 Illex and longfin squid fisheries. specification of the mortality cap on the longfin squid fishery. FOR FURTHER INFORMATION CONTACT: Aja Following the meetings described Szumylo, Fishery Policy Analyst, 978– above, the Council considered the The regulations governing 281–9195, fax 978–281–9135. recommendations of the SSC, the specifications for Illex and longfin squid SUPPLEMENTARY INFORMATION: Monitoring Committee, and public are largely unchanged; both squid comments at its June 14–16, 2011, species are exempt from ACL/AM Background meeting in Port Jefferson, NY, and made requirements because they have a life Specifications, as referred to in this their specification recommendations. cycle of less than 1 year. For both squid proposed rule, are the combined suite of The Council submitted these species, regulations at § 648.22 require commercial and recreational catch recommendations, along with the the specification of ABC, initial levels established for one or more required analyses, for agency review on optimum yield (IOY), DAH, and DAP.

TABLE 1—PROPOSED SPECIFICATIONS, IN METRIC TONS (MT), FOR MACKEREL AND BUTTERFISH FOR THE 2012 FISHING YEAR, AND FOR ILLEX AND LONGFIN SQUID FOR THE 2012–2014 FISHING YEARS

Specifications Mackerel Butterfish Illex Longfin

OFL ...... Unknown Unknown Unknown Unknown ABC ...... 43,781 3,622 24,000 23,400 ACL ...... 43,781 3,622 N/A N/A

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TABLE 1—PROPOSED SPECIFICATIONS, IN METRIC TONS (MT), FOR MACKEREL AND BUTTERFISH FOR THE 2012 FISHING YEAR, AND FOR ILLEX AND LONGFIN SQUID FOR THE 2012–2014 FISHING YEARS—Continued

Specifications Mackerel Butterfish Illex Longfin

Commercial ACT ...... 34,907 3,260 N/A N/A Recreational ACT/RHL ...... 2,443 N/A N/A N/A IOY ...... N/A N/A 22,915 22,445 DAH/DAP ...... 33,821 1,087 22,915 22,445 JVP ...... 0 N/A N/A N/A TALFF ...... 0 0 N/A N/A

Research Set-Aside to exceed Federal possession limits and trawl surveys. The length frequency to fish during Federal quota closures. distribution of the catch will be The Mid-Atlantic Research Set-Aside With respect to the MSB FMP, such compared to each of the other collection (RSA) Program allows research projects regulations include closure regulations sites, and to finfish trawl data collected to be funded through the sale of fish that at § 648.24 and possession restrictions at by NMFS and state agencies to gain has been set aside from the total annual § 648.26. These exemptions are greater understanding of the black sea quota. The RSA may vary between 0 and necessary to allow project investigators bass stock structure. Vessels conducting 3 percent of the overall quota for each to recover research expenses, as well as research would not require any species. The Council has recommended adequately compensate fishing industry exemptions from regulations that up to 3 percent of the total ACL for participants harvesting RSA. Vessels implemented under the MSB FMP. mackerel and butterfish, and up to 3 harvesting RSA would operate within Vessels harvesting RSA quota would percent of the IOY for Illex and longfin all other regulations that govern the require the aforementioned closure and squid, may be set aside to fund projects commercial fishery, unless otherwise possession limit exemptions to facilitate selected under the 2012 Mid-Atlantic exempted through a separate EFP. compensation fishing activities. RSA Program. NMFS solicited research Vessels conducting compensation proposals under the 2012 Mid-Atlantic Project #3: The proposed project fishing would harvest RSA quota during would continue a spring and fall trawl RSA Program through a Federal the fishing year from January 1– Funding Opportunity announcement survey in shallow waters between December 31, 2012. Martha’s Vineyard, MA, and Cape that published on January 6, 2011. The Project #1: The proposed project is the project selection and award process for Hatteras, NC, that are not sampled by continuation of a scup survey of 10 the NMFS trawl survey. The project the 2012 Mid-Atlantic RSA Program has hard-bottom sites in Southern New not concluded. However, three projects investigators plan to provide stock England (SNE) that are not sampled by assessment data for Mid-Atlantic RSA have been preliminarily selected for current state and Federal finfish trawl approval by the Northeast Fisheries species, including summer flounder, surveys. Unvented fish pots will be scup, black sea bass, longfin squid, Science Center. These projects have fished on each site from June through collectively requested 250,580 lb butterfish, and Atlantic bluefish, and October in coastal waters of Nantucket assessment-quality data for weakfish, (113,681 kg) of longfin squid, 200,000 lb Sound, Martha’s Vineyard Sound, and (90,718 kg) of butterfish, 689,932 lb Atlantic croaker, spot, several skate and Buzzard’s Bay, MA, and Rhode Island ray species, smooth dogfish, horseshoe (312,948 kg) of summer flounder, Sound, RI. The length frequency 509,160 lb (230,951 kg) of scup, 184,280 crab, and several unmanaged but distribution of the catch will be important forage species. Vessels lb (83,588 kg) of black sea bass, and compared statistically to each of the 200,000 lb (90,718 kg) of bluefish. conducting this near-shore trawl survey other collection sites, and to finfish would not require any exemptions from Project awards are pending a review by trawl data collected by the NMFS and the NOAA Grants Office. If any portion regulations implemented under the state agencies to gain greater MSB FMP. Vessels harvesting RSA of the MSB RSA is not awarded, NMFS understanding of the scup stock will return it to the general fishery quota would require the aforementioned structure. Vessels conducting research closure and possession limit exemptions either through the final 2012 MSB would not require any exemptions from specification rulemaking process or to facilitate compensation fishing regulations implemented under the activities. through the publication of a separate MSB FMP. Vessels harvesting RSA notice in the Federal Register notifying quota would require the aforementioned 2012 Proposed Specifications and the public of a quota adjustment. closure and possession limit exemptions Management Measures for Mackerel These proposed specifications include to facilitate compensation fishing and Butterfish a brief description of the preliminarily activities. Atlantic Mackerel selected 2012 Mid-Atlantic RSA Project #2: The proposed project is a projects, including a description of black sea bass survey of sites in SNE The status of the mackerel stock was applicable MSB exemptions that will and Mid-Atlantic waters. Unvented assessed by the Transboundary likely be required to conduct the black sea bass pots will be fished on Resources Assessment Committee proposed research and compensation each site, which will include one in (TRAC) in March 2010. The 2010 TRAC fishing. The Magnuson-Stevens Act Massachusetts, one south of Rhode Status Report indicated reduced requires that interested parties be Island, one south of New Jersey, and one productivity in the stock and a lack of provided an opportunity to comment on south of Virginia, for 5 months from older fish in both the survey and catch all proposed exempted fishing permits June through October in SNE, and April data; however, the status of the (EFPs). through August in the Mid-Atlantic. The mackerel stock is unknown because Vessels harvesting RSA quota in project is designed to collect black sea biomass reference points could not be support of approved research projects bass from sites that are un-sampled by determined. According to the FMP, would be issued EFPs authorizing them current state and Federal finfish bottom mackerel ABC must be calculated using

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the formula U.S. ABC = Stock-wide capacity was no longer a limiting factor appear to be very low. In short, the ABC ¥ C, where C is the estimated relative to domestic production of underlying causes for population catch of mackerel in Canadian waters mackerel. decline are unknown. for the upcoming fishing year. Due to The Magnuson-Stevens Act provides The SSC recommended an ABC of uncertainty in the assessment, the TRAC that the specification of TALFF, if any, 3,622 mt (100 percent increase from recommended that total annual catches shall be the portion of the optimum 2011) because butterfish survey indices not exceed 80,000 mt (average total U.S. yield (OY) of a fishery that will not be appear stable or increasing, there have and Canadian landings from 2006–2008) harvested by U.S. vessels. TALFF would been anecdotal observations of until new information is available. The allow foreign vessels to harvest U.S. fish increased butterfish abundance, and SSC recommended specifying the stock- and sell their product on the world fishing mortality appears low when wide ABC for 2012 at 80,000 mt, market, in direct competition with U.S. compared to natural mortality. consistent with the TRAC industry efforts to expand exports. The Council recommended setting the recommendation. The Council While a surplus existed between ABC butterfish ACL equal to the ABC, and recommended a U.S. ABC of 43,781 mt and the mackerel fleet’s harvesting establishing a 10-percent buffer between (80,000 mt ¥ 36,219 mt (estimated 2012 capacity for many years, that surplus ACL and ACT for management Canadian catch)). has disappeared due to downward uncertainty, which would result in an Consistent with MSB Amendment 11, adjustments of the specifications in ACT of 3,260 mt. Since discards have the Council recommended a recreational recent years. Based on analysis and a been roughly 2⁄3 of catch (1999–2008 allocation of 2,714 mt (6.2 percent of the review of the state of the world average), the Council recommended U.S. ABC). The proposed Recreational mackerel market and possible increases setting the DAH and DAP at 1,087 mt ACT of 2,443 mt (90 percent of 2,714 in U.S. production levels, the Council (3,260 mt¥2,173 mt discards). mt) is reduced to account for low concluded that specifying a DAH/DAP Butterfish TALFF is only specified to precision and time lag of recreational resulting in zero TALFF will yield address bycatch by foreign fleets catch estimates, as well as lack of positive social and economic benefits to targeting mackerel TALFF. Because recreational discard estimates. The both U.S. harvesters and processors, and there is no mackerel TALFF, butterfish Recreational ACT is equal to the to the Nation. For these reasons, TALFF would also be set at zero. Recreational Harvest Limit (RHL), consistent with the Council’s The Council recommended setting the which would be the effective cap on recommendation, NMFS proposes to butterfish mortality cap on the longfin recreational catch. specify DAH at a level that can be fully squid fishery at 2,445 mt (75 percent of For the commercial mackerel fishery, harvested by the domestic fleet, thereby 3,260 mt). If the butterfish mortality cap the Council recommended a commercial precluding the specification of a TALFF, is harvested during Trimester I fishery allocation of 41,067 mt (93.8 in order to support the U.S. mackerel (January–April) or Trimester III percent of the U.S. ABC, the portion of industry. NMFS concurs that it is (September–December), the directed the ACL that was not allocated to the reasonable to assume that in 2012 the longfin squid fishery will close for the recreational fishery). The recommended commercial fishery has the ability to remainder of that trimester. Commercial ACT of 34,907 mt (85 harvest 33,821 mt of mackerel. NMFS proposes specifications, Finally, this rule proposes that the percent of 41,067) is reduced to address consistent with the Council’s uncertainty in estimated 2012 Canadian commercial fishery be closed at 95 recommendation, that would set the landings, uncertainty in discard percent of the DAH, as recommended by butterfish ABC/ACL at 3,622 mt, the estimates, and possible misreporting. the Council. The current closure ACT at 3,260 mt, the DAH and DAP at The Commercial ACT would be further threshold of 90 percent of the DAH was 1,087 mt, and the butterfish mortality reduced by a discard rate of 3.11 percent designed to accommodate misreporting cap on the longfin squid fishery at 2,445 (mean plus one standard deviation of in the commercial fishery, and the lack mt. Additionally, consistent with MSB discards from 1999–2008), to arrive at of a distinct allocation for the regulations, NMFS is proposing zero the proposed DAH of 33,821 mt. The recreational fishery. A 95-percent TALFF for butterfish in 2010 because DAH would be the effective cap on closure threshold should be sufficient to mackerel TALFF is also specified at commercial catch, as it has been in past prevent overages, given that a specifications. recreational allocation is now required zero. Consistent with 2011, NMFS Consistent with the Council’s by the FMP. proposes that the 2012 butterfish recommendation, NMFS proposes mortality cap be allocated by Trimester mackerel specifications that would set Butterfish as follows: the U.S. ABC/ACL at 43,781 mt, the The current status of the butterfish Commercial ACT at 34,907 mt, the DAH stock is unknown because biomass TABLE 2—PROPOSED TRIMESTER AL- and DAP at 33,821 mt, and the reference points could not be LOCATION OF BUTTERFISH MOR- Recreational ACT at 2,443 mt. determined in the SAW 49 assessment TALITY CAP ON THE LONGFIN SQUID Additionally, as recommended by the (February 2010). Though the butterfish FISHERY FOR 2012 Council, NMFS proposes to maintain population appears to be declining over JVP at zero (the most recent allocation time, fishing mortality does not seem to Trimester Percent Metric was 5,000 mt of JVP in 2004). In the be the major cause. Butterfish have a tons past, the Council recommended a JVP high natural mortality rate, and the I (Jan–Apr) ...... 65 1,589 .25 greater than zero because it believed current estimated fishing mortality (F = II (May–Aug) ..... 3 .3 80.69 U.S. processors lacked the ability to 0.02) is well below all candidate III (Sep–Dec) .... 31 .7 775 .06 process the total amount of mackerel overfishing threshold reference points. that U.S. harvesters could land. The assessment report noted that Total ...... 100 2,445 However, for the past 8 years, the predation is likely an important Council has recommended zero JVP component of the butterfish natural Finally, the Council recommended, because U.S. shoreside processing mortality rate (currently assumed to be and NMFS proposes, that a 3-inch (76- capacity for mackerel has expanded. 0.8), but also noted that estimates of mm) minimum codend mesh size The Council concluded that processing consumption of butterfish by predators requirement apply for vessels

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possessing 2,000 lb (0.9 mt) or more of proposes an ABC of 23,400 mt, and an amended to replace all references to butterfish (up from 1,000 lb (0.45 mt) in IOY, DAH, and DAP of 22,445 mt for the ‘‘Loligo’’ squid with the term ‘‘longfin 2011) in order to allow some portion of 2012–2014 fishing years. The FMP does squid.’’ butterfish discards to be landed. not authorize the specification of JVP Classification and TALFF for the longfin squid fishery 2012–2014 Proposed Specifications and because of the domestic industry’s Pursuant to section 304(b)(1)(A) of the Management Measures for Illex Squid capacity to harvest and process the OY Magnuson-Stevens Act, the NMFS and Longfin Squid for this fishery. Assistant Administrator has determined Illex Squid that this proposed rule is consistent Distribution of the Longfin DAH with the Atlantic Mackerel, Squid, and The Illex stock was most recently The proposed 2012–2014 longfin Butterfish FMP, other provision of the assessed at SARC 42 in late 2005. While DAH would be allocated into trimesters, Magnuson-Stevens Act, and other it was not possible to evaluate current according to percentages specified in applicable law, subject to further stock status because there are no reliable the FMP, as follows: consideration after public comment. current estimates of stock biomass or F, This proposed rule has been qualitative analyses determined that TABLE 3—PROPOSED TRIMESTER AL- determined to be not significant for overfishing had not likely been LOCATION OF LONGFIN QUOTA FOR purposes of Executive Order 12866. occurring. The SSC recommended the 2012–2014 The Council prepared an IRFA, as status quo ABC of 24,000 mt based on required by section 603 of the observations that catches in this range, Metric Regulatory Flexibility Act (RFA). The and up to 26,000 mt, have not caused Trimester Percent tons IRFA describes the economic impact any apparent harm to the stock. this proposed rule, if adopted, would The Council recommended that the I (Jan–Apr) ...... 43 9,651 have on small entities. A summary of ABC be reduced by a revised discard II (May–Aug) ...... 17 3,816 the analysis follows. A copy of this rate of 4.52 percent (the mean plus one III (Sep–Dec) ...... 40 8,978 analysis is available from the Council or standard deviation of the most recent 10 Total ...... 100 22,445 NMFS (see ADDRESSES) or via the years of observed discards), which Internet at http://www.nero.noaa.gov. results in an IOY, DAH, and DAP for recommendation of 22,915 mt for the Longfin Squid Jigging Exemption Statement of Objective and Need 2012–2014 fishing years. The Council recommended, and This action proposes 2012 Consistent with the Council’s NMFS proposes, to allow Longfin specifications for mackerel and recommendation, NMFS proposes to Squid/Butterfish moratorium permit butterfish, and 2012–2014 specifications specify the Illex ABC as 24,000 mt, and holders to possess longfin squid in for Illex and longfin squid. It also to specify IOY, DAH, and DAP as 22,915 excess of the 2,500-lb (0.93-mt) proposes to modify the closure mt for the 2012–2014 fishing years. The possession limit during any closures of threshold for the commercial mackerel FMP does not authorize the the longfin squid fishery resulting from fishery, to adjust the gear requirements specification of JVP and TALFF for the the butterfish mortality cap, provided for the butterfish fishery, to create an Illex fishery because of the domestic that all trawl gear is appropriately exemption for the use of jigs, should the fishing industry’s capacity to harvest stowed. The butterfish mortality cap longfin squid fishery be closed due to and to process the OY from this fishery. was designed to limit butterfish bycatch reaching the butterfish mortality cap. A in the longfin squid trawl fishery, and Longfin Squid complete description of the reasons why jigging for squid is not expected to this action is being considered, and the The 51st Northeast Regional Stock result in substantial butterfish bycatch. objectives of and legal basis for this Assessment Workshop (SAW 51), Corrections action, are contained in the preamble to published in January 2011, found that this proposed rule and are not repeated the longfin squid stock is not This proposed rule also contains here. overfished, but that the overfishing minor corrections to existing status is unknown. The SSC used the regulations. The corrections would not Description and Estimate of Number of updated stock assessment information change the intent of any regulations; Small Entities To Which the Rule Will to recommend an ABC of 23,400 mt for they would only clarify the intent of Apply the 2012–2014 fishing years, subject to existing regulations by correcting Based on permit data for 2011, the annual review. This recommendation technical errors. The proposed numbers of potential fishing vessels in corresponds to catch in the year with regulatory text restructures § 648.23(a). the 2012 fisheries are as follows: 351 the highest observed exploitation In addition, the Illex fishery gear Longfin squid/butterfish moratorium fraction (catch divided by estimated exemption in § 648.23(a) (formerly at permits; 76 Illex moratorium permits; biomass) during a period of light § 648.23(a)(3)(ii)) would be revised to 2,201 mackerel permits; 1,904 exploitation (1976–2009). The SSC clarify the timing of the exemption, and incidental squid/butterfish permits; and interpreted this level of exploitation to to match the stated gear requirements to 831 MSB party/charter permits. Small be sustainable over the long term. those implemented for the longfin squid businesses operating in commercial and The Council recommended that the fishery through Amendment 10 to the recreational (i.e., party and charter ABC be reduced by a revised discard MSB FMP. Finally, longfin squid was vessel operations) fisheries have been rate of 4.08 percent (mean plus one previously referred to as Loligo squid. defined by the Small Business standard deviation of the most recent 10 Due to a recent change in the scientific Administration as firms with gross years of observed discards), which name of longfin squid from Loligo revenues of up to $4.0 and $6.5 million, results in an IOY, DAH, and DAP for pealeii to Doryteuthis (Amerigo) pealeii, respectively. There are no large entities recommendation of 22,445 mt for the the Council will now use the common participating in this fishery, as that term 2012–2014 fishing years. name ‘‘longfin squid’’ in all official is defined in section 601 of the RFA. NMFS concurs with the Council’s documents to avoid confusion. Therefore, there are no disproportionate recommendation; therefore, this action Accordingly, the regulatory text is economic impacts on small entities.

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Many vessels participate in more than percent increase over the 2011 DAH the start of the fishing year) was one of these fisheries; therefore, permit (500 mt). Due to market conditions, available for the longfin squid fishery numbers are not additive. there has not been a directed butterfish for the duration of the fishing year. fishery in recent years; therefore, recent Though a majority of the cap is still Description of Projected Reporting, landings have been low. The proposed available, it could still result in a Recordkeeping, and Other Compliance increase in the DAH has the potential to closure of the longfin squid fishery late Requirements increase revenue for permitted vessels. in the fishing year. Nonetheless, given There are no new reporting or record The proposed adjustment to the gear that the lower cap has not yet keeping requirements contained in any requirement for the butterfish fishery, constrained the longfin squid fishery, it of the alternatives considered for this which would require vessels possessing is reasonable to expect that the action. In addition, there are no Federal 2,000 lb (0.9 mt) or more of butterfish proposed increase to the cap will also rules that duplicate, overlap, or conflict to fish with a 3-inch (76-mm) minimum not constrain the longfin squid fishery. with this proposed rule. codend mesh, is expected to result in a For that reason, additional revenue modest increase in revenue for fishery losses are not expected as a result of this Minimizing Significant Economic participants. This adjustment would Impacts on Small Entities proposed action. enable additional retention of butterfish The proposed jigging measure would Proposed Actions by vessels using small-mesh fishing allow Longfin Squid/Butterfish gear. Previously, the mesh size The recently finalized Omnibus moratorium permit holders to possess requirement applied to vessels Amendment, which applies to mackerel longfin squid in excess of the possession possessing 1,000 lb (0.45 mt) or more of and butterfish, changes the structure of limit during any closures of the longfin butterfish. squid fishery resulting from the specifications compared to that used in The Illex IOY (22,915 mt) proposed in butterfish mortality cap. Jigging for past years. In order to facilitate this action represents a slight decrease longfin squid has been shown to be comparison of alternatives, the compared to status quo (23,328 mt). commercially infeasible. However, discussions of mackerel and butterfish Though annual Illex landings have specifications below will focus on the because butterfish bycatch in jig gear is totaled over 2⁄3 of the IOY in the past 3 expected to be very minimal, it seems effective limit on directed harvest, years (15,900 mt for 2008, 18,419 mt for regardless of the terminology used for 2009, and 15,825 for 2010), the landings reasonable to allow jig fishing for squid. the specification. The specifications and were lower than the level being If attempts to use jig gear for commercial terminology for Illex and longfin squid proposed. Thus, implementation of this longfin squid fishing are successful, the are unchanged from those used in 2011. proposed action should not result in a use of this gear could help mitigate The mackerel commercial DAH reduction in revenue or a constraint on economic impacts on fishery proposed in this action (33,821 mt) expansion of the fishery in 2012. participants if the longfin squid fishery represents a reduction from status quo The longfin squid IOY (22,445 mt) is closed due to the mortality cap. (2011 DAH = 46,779 mt). Despite the represents an increase from the status Alternatives to the Proposed Rule reduction, the proposed DAH is above quo (20,000 mt). Because longfin squid recent U.S. landings; mackerel landings landings from 2008–2010 averaged The Council analysis evaluated four for 2008–2010 averaged 18,830 mt. 9,182 mt, the proposed IOY provides an alternatives to the proposed Thus, the reduction does not pose a opportunity to increase landings, specifications for mackerel. The first constraint to vessels relative to the though if recent trends of low landings (status quo) and second non-selected landings in recent years. In 2011, there continue, there may be no increase in alternatives were based on the was a soft allocation of 15,000 mt of the landings despite the increase in the specifications structure that existed mackerel DAH for the recreational allocation. No reductions in revenues prior to the implementation of the mackerel fishery. The Omnibus for the longfin squid fishery are Omnibus Amendment, and were not Amendment and MSB Amendment 11 expected as a result of this proposed selected because they are no longer in established an explicit allocation for the action. compliance with the MSB FMP. The recreational fishery, and this action As discussed in the Final Regulatory other alternatives differ in their proposes a Recreational ACT/RHL of Flexibility Analysis (FRFA) for MSB specification of the stockwide ABC 2,443 mt. Because recreational harvest Amendment 10, the butterfish mortality (80,000 mt in the preferred alternative). from 2008–2010 averaged 738 mt, it cap has a potential for economic impact The same amount of expected Canadian does not appear that the new, explicit on fishery participants. The longfin catch (36,219 mt) was subtracted from allocation for the recreational fishery squid fishery will close during the stockwide ABC in each alternative. will constrain recreational harvest. Trimesters I and III if the butterfish The third alternative (least restrictive) Overall, the proposed action is not mortality cap is reached. If the longfin would set the U.S. ABC and ACL at expected to result in any reductions in squid fishery is closed in response to 63,781 mt (100,000 mt stockwide ABC revenues for vessels that participate in butterfish catch before the entire longfin minus 36,219 mt Canadian catch), the either the commercial or recreational squid quota is harvested, then a loss in Commercial ACT at 50,853 mt, the DAH mackerel fisheries. revenue is possible. The potential for and DAP at 49,271 mt, and the The proposed change to the mackerel longfin squid revenue loss is dependent Recreational ACT at 3,559 mt. The closure threshold, which would require upon the size of the butterfish mortality fourth alternative (most restrictive) the closure of the commercial mackerel cap. The proposed 2012 butterfish would set the U.S. ABC and ACL at fishery at 95 percent of the DAH, is a mortality cap of 2,445 mt represents a 23,781 mt (60,000 mt stockwide ABC preventative measure intended to 70-percent increase over status quo minus 36,219 mt Canadian catch), the ensure that the commercial catch limit (1,436 mt). The 2011 butterfish Commercial ACT at 18,961 mt, the DAH is not exceeded. The economic burden mortality cap did not result in a closure and DAP at 18,371 mt, and the on fishery participants associated with of the longfin squid fishery in Trimester Recreational ACT at 1,327 mt. These this measure is expected to be minimal. I. At the start of Trimester III, over 55 two alternatives were not selected The butterfish DAH proposed in this percent of the butterfish mortality cap because they were all inconsistent with action (1,087 mt) represents a 117- (compared to 31.7 percent allocated at the ABC recommended by the SSC.

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The status quo closure threshold for with the results of the most recent stock Dated: October 21, 2011. the commercial mackerel fishery (90 assessment. The third alternative (most Samuel D. Rauch III, percent) was considered overly restrictive) would have set ABC at Deputy Assistant Administrator for precautionary when compared to the 18,000 mt, and IOY, DAH, and DAP at Regulatory Programs, National Marine proposed closure threshold (95 percent). 17,186 mt (ABC reduced by 4.52 percent Fisheries Service. The status quo closure threshold, which for discards). The Council considered For the reasons set out in the was designed in part because there was this alternative unnecessarily restrictive. preamble, 50 CFR part 648, as amended no distinct allocation for the There were three alternatives to the at 76 FR 60649, September 29, 2011, is recreational mackerel fishery, is no proposed action evaluated for longfin proposed to be amended as follows: longer considered appropriate. squid. All alternatives would establish There were four alternatives to the specifications for the 2012–2014 fishing PART 648—FISHERIES OF THE preferred action for butterfish that were years. The first alternative (status quo) NORTHEASTERN UNITED STATES not selected by the Council. The first would have set the ABC at 24,000 mt, (status quo) and second non-selected 1. The authority citation for part 648 and the IOY, DAH and DAP at 20,000 were based on the specifications continues to read as follows: mt. The second alternative (least structure that existed prior to the restrictive) would have set the ABC at Authority: 16 U.S.C. 1801 et seq. implementation of the Omnibus Amendment, and were not selected 29,250 mt, and the IOY, DAH, and DAP 2. In § 648.2, remove the definition for because they are no longer in at 28,057 mt (ABC reduced by 4.08 Loligo, revise the definition of Squid, compliance with the MSB FMP. The percent for discards). The third and add the definition for Longfin squid third alternative (least restrictive) would alternative (most restrictive) would have in alphabetical order, to read as follows: set the ABC at 17,550 mt, and the IOY, have set the ABC and ACL at 4,528 mt, § 648.2 Definitions. the ACT at 4,075 mt, the DAH and DAP DAH and DAP at 16,834 mt (ABC * * * * * at 1,358 mt, and the butterfish mortality reduced by 4.08 percent for discards). Longfin squid means Doryteuthis cap at 3,056 mt. The fourth alternative These three alternatives were not (Amerigo) pealeii (formerly referred to (most restrictive) would have set the selected because they were all as Loligo pealeii). ABC and ACL at 2,717 mt, the ACT at inconsistent with the ABC 2,445 mt, the DAH and DAP at 815 mt, recommended by the SSC. * * * * * and the butterfish mortality cap at 1,834 The alternatives for longfin squid RSA Squid means longfin squid mt. These two alternatives were not would allow up to 1.65 percent (status (Doryteuthis (Amerigo) pealeii, formerly selected because they were all quo) or up to 3 percent (preferred) of the Loligo pealeii) or Illex illecebrosus. inconsistent with the ABC longfin squid IOY to be used to fund * * * * * recommended by the SSC. research projects for the 2012–2014 3. In § 648.23, paragraph (a) is revised There were two alternatives regarding fishing years. In 2011, butterfish RSA to read as follows: proposed adjustment to the butterfish was only awarded to cover butterfish gear requirement. The status quo § 648.23 Mackerel, squid, and butterfish discards by vessels fishing for longfin gear restrictions. alternative requires vessels possessing squid RSA. The small amount of 1,000 lb (0.45 mt) or more of butterfish butterfish RSA available in 2011 (15 mt, (a) Mesh restrictions and exemptions. to fish with a 3-inch (76-mm) minimum or 3 percent of 500 mt butterfish DAH) Vessels subject to the mesh restrictions codend mesh. The preferred alternative was only sufficient to cover discards for in this paragraph (a) may not have (3-inch (76-mm) mesh to possess 2,000 an amount of longfin squid RSA equal available for immediate use any net, or lb (0.9 mt)) is expected to create some to 1.65 percent of the IOY. The any piece of net, with a mesh size additional revenue in the form of recommended increase in the 2012 smaller than that specified in butterfish landings for vessels using butterfish quota will allow for enough paragraphs (a)(1) and (a)(2) of this mesh sizes smaller than 3 inches (76 butterfish RSA (3 percent of the 1,087 section. mm). mt butterfish DAH) to accommodate (1) Butterfish fishery. Owners or Three alternatives to the preferred discards for longfin squid RSA equal to operators of otter trawl vessels action were considered for Illex, but 3 percent of the IOY. possessing 2,000 lb (0.9 mt) or more of were not selected by the Council. All butterfish harvested in or from the EEZ alternatives would establish For the jigging exemption, the status may only fish with nets having a specifications for the 2012–2014 fishing quo alternative prevents Longfin squid/ minimum codend mesh of 3 inches (76 years. The first alternative (status quo), Butterfish moratorium permit holders mm) diamond mesh, inside stretch shared the same 24,000-mt ABC as the from possessing or landing over 2,500 lb measure, applied throughout the codend proposed action. However, a discard (1.13 mt) of longfin squid if the directed for at least 100 continuous meshes rate of 2.8 percent was deducted to fishery is closed because of the forward of the terminus of the net, or for reach an IOY, DAH, and DAP at 23,328 butterfish mortality cap. The preferred codends with less than 100 meshes, the mt rather than the 22,915 mt specified alternative would allow such vessel to minimum mesh size codend shall be a in this proposed action. The Council did posses and land over 2,500 lb (1.13 mt) minimum of one-third of the net, not select the status quo alternative if using jigging gear. If the use of jigs for measured from the terminus of the because it found the updated discard commercial longfin squid fishery proves codend to the headrope. rate of 4.52 percent to be a more successful, the preferred alternative may (2) Longfin squid fishery. Owners or appropriate representation of discards help reduce the economic impacts of operators of otter trawl vessels in the Illex fishery. The second closures of the longfin squid fishery possessing longfin squid harvested in or alternative (least restrictive) would have resulting from the butterfish mortality from the EEZ may only fish with nets set ABC at 30,000 mt, and IOY, DAH, cap. having a minimum mesh size of 21⁄8 and DAP at 28,644 mt (ABC reduced by List of Subjects in 50 CFR Part 648 inches (54 mm) during Trimesters I 4.52 percent for discards). This (Jan–Apr) and III (Sept–Dec), or 17⁄8 alternative was not selected because the Fisheries, Fishing, Recordkeeping and inches (48 mm) during Trimester II higher specifications were inconsistent reporting requirements. (May–Aug), diamond mesh, inside

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stretch measure, applied throughout the (ii) Jigging exemption. During closures Point N. lat. W. long. codend for at least 150 continuous of the longfin squid fishery resulting meshes forward of the terminus of the from the butterfish mortality cap, M15 ...... 40°22.7′ 69°00.0′ net, or, for codends with less than 150 described in § 648.26(c)(3), vessels M16 ...... 40°18.7′ 69°40.0′ ° ′ ° ′ meshes, the minimum mesh size codend fishing for longfin squid using jigging M17 ...... 40 21.0 71 03.0 M18 ...... 39°41.0′ 72°32.0′ shall be a minimum of one-third of the gear are exempt from the closure ° ′ ° ′ possession limit specified in § 648.26(b), M19 ...... 38 47.0 73 11.0 net measured from the terminus of the M20 ...... 38°04.0′ 74°06.0′ codend to the headrope, unless they are provided that all otter trawl gear is M21 ...... 37°08.0′ 74°46.0′ fishing consistent with exceptions stowed as specified in paragraph (b) of M22 ...... 36°00.0′ 74°52.0′ specified in paragraph (b) of this this section. M23 ...... 35°45.0′ 74°53.0′ section. (3) Illex fishery. Seaward of the M24 ...... 35°28.0′ 74°52.0′ following coordinates, otter trawl (i) Net obstruction or constriction. vessels possessing longfin squid * * * * * Owners or operators of otter trawl harvested in or from the EEZ and fishing vessels fishing for and/or possessing 4. In § 648.24, paragraph (b)(1) is for Illex during the months of June, July, revised to read as follows: longfin squid shall not use any device, August, in Trimester II, and September gear, or material, including, but not in Trimester III are exempt from the § 648.24 Fishery closures and limited to, nets, net strengtheners, longfin squid gear requirements accountability measures. ropes, lines, or chafing gear, on the top specified in paragraph (a)(2) of this * * * * * of the regulated portion of a trawl net section, provided that landward of the (b) * * * that results in an effective mesh opening specified coordinates they do not have of less than 21⁄8 inches (54 mm) during available for immediate use, as defined (1) Mackerel commercial sector EEZ Trimesters I (Jan–Apr) and III (Sept– in paragraph (b) of this section, any net, closure. NMFS shall close the Dec), or 17⁄8 inches (48 mm) during or any piece of net, with a mesh size commercial mackerel fishery in the EEZ when the Regional Administrator Trimester II (May–Aug), diamond mesh, less than 17⁄8 inches (48 mm) diamond projects that 95 percent of the mackerel inside stretch measure. ‘‘Top of the mesh in Trimester II, and 21⁄8 inches (54 regulated portion of the net’’ means the mm) diamond mesh in Trimester III, or DAH is harvested, if such a closure is 50 percent of the entire regulated any piece of net, with mesh that is necessary to prevent the DAH from portion of the net that would not be in rigged in a manner that is prohibited by being exceeded. The closure of the contact with the ocean bottom if, during paragraph (a)(2) of this section. commercial fishery shall be in effect for a tow, the regulated portion of the net the remainder of that fishing year, with were laid flat on the ocean floor. Point N. lat. W. long. incidental catches allowed as specified However, owners or operators of otter in § 648.26. When the Regional ° ′ ° ′ trawl vessels fishing for and/or M1 ...... 43 58.0 67 22.0 Administrator projects that the DAH for M2 ...... 43°50.0′ 68°35.0′ mackerel shall be landed, NMFS shall possessing longfin squid may use net M3 ...... 43°30.0′ 69°40.0′ strengtheners (covers), splitting straps, ° ′ ° ′ close the commercial mackerel fishery M4 ...... 43 20.0 70 00.0 in the EEZ, and the incidental catches and/or bull ropes or wire around the M5 ...... 42°45.0′ 70°10.0′ entire circumference of the codend, M6 ...... 42°13.0′ 69°55.0′ specified for mackerel in § 648.26 will provided they do not have a mesh M7 ...... 41°00.0′ 69°00.0′ be prohibited. M8 ...... 41°45.0′ 68°15.0′ * * * * * opening of less than 5 inches (12.7 cm) ° ′ ° ′ diamond mesh, inside stretch measure. M9 ...... 42 10.0 67 10.0 5. In the table below, for each section M10 ...... 41°18.6′ 66°24.8′ For the purposes of this requirement, M11 ...... 40°55.5′ 66°38.0′ in the left column, remove the text from head ropes are not to be considered part M12 ...... 40°45.5′ 68°00.0′ whenever it appears throughout the of the top of the regulated portion of a M13 ...... 40°37.0′ 68°00.0′ section and add the text indicated in the trawl net. M14 ...... 40°30.0′ 69°00.0′ right column.

Section Remove Add Frequency

§ 648.4(a)(5)(i) ...... Loligo ...... longfin ...... 1 § 648.4(a)(5)(i)(A) ...... Loligo ...... longfin ...... 2 § 648.4(a)(5)(i)(L)(ii) ...... Loligo ...... longfin ...... 1 § 648.4(a)(10)(iv)(C)(1)(i) ...... Loligo ...... longfin ...... 1 § 648.4(a)(10)(iv)(C)(1)(ii) ...... Loligo ...... longfin ...... 1 § 648.13(a) ...... Loligo ...... longfin squid ...... 2 § 648.14(g)(1)(ii)(B) ...... Loligo ...... longfin squid ...... 2 § 648.14(g)(1)(iii) ...... Loligo ...... longfin squid ...... 1 § 648.14(g)(2)(ii) ...... Loligo ...... longfin ...... 2 § 648.14(g)(2)(iii) ...... Loligo ...... longfin squid ...... 1 § 648.14(o)(1)(vi) ...... Loligo ...... longfin ...... 1 § 648.22(a)(2) ...... Loligo ...... longfin squid ...... 1 § 648.22(a)(4) ...... Loligo ...... longfin ...... 1 § 648.22(a)(5) ...... Loligo ...... longfin ...... 1 § 648.22(b)(1) ...... Loligo ...... longfin ...... 1 § 648.22(b)(1)(i)(A) ...... Loligo ...... longfin squid ...... 1 § 648.22(b)(3)(v) ...... Loligo ...... longfin squid ...... 1 § 648.22(c)(1)(i) ...... Loligo ...... longfin squid ...... 1 § 648.22(c)(3) ...... Loligo ...... longfin squid ...... 1 § 648.22(c)(6) ...... Loligo ...... longfin squid ...... 1 § 648.22(f) ...... Loligo ...... longfin ...... 2 § 648.24(a) ...... Loligo ...... longfin squid ...... 4 § 648.24(c)(3) ...... Loligo ...... longfin squid ...... 2

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Section Remove Add Frequency

§ 648.26(b) ...... Loligo ...... longfin squid ...... 7 § 648.27 (heading) ...... Loligo ...... longfin squid ...... 1 § 648.27(a) ...... Loligo ...... longfin squid ...... 1 § 648.27(b) ...... Loligo ...... longfin squid ...... 5 § 648.27(c) ...... Loligo ...... longfin squid ...... 3 § 648.27(d) ...... Loligo ...... longfin squid ...... 2 § 648.124(a)(2) ...... Loligo ...... longfin ...... 1 § 648.124(b)(2) ...... Loligo ...... longfin ...... 1

[FR Doc. 2011–27726 Filed 10–25–11; 8:45 am] BILLING CODE 3510–22–P

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Notices Federal Register Vol. 76, No. 207

Wednesday, October 26, 2011

This section of the FEDERAL REGISTER the collection of information unless it Total Burden Hours: 88. contains documents other than rules or displays a currently valid OMB control proposed rules that are applicable to the number. Ruth Brown, public. Notices of hearings and investigations, Departmental Information Collection committee meetings, agency decisions and Animal Plant and Health Inspection Clearance Officer. rulings, delegations of authority, filing of Service [FR Doc. 2011–27638 Filed 10–25–11; 8:45 am] petitions and applications and agency statements of organization and functions are Title: Self Certification Medical BILLING CODE 3410–34–P examples of documents appearing in this Statement. section. OMB Control Number: 0579–0196. Summary of Collection: The United DEPARTMENT OF AGRICULTURE States Department of Agriculture is DEPARTMENT OF AGRICULTURE responsible for ensuring consumers that Submission for OMB Review; food and farm products are moved from Comment Request Submission for OMB Review; producer to consumer in the most October 20, 2011. Comment Request efficient, dependable, economical, and The Department of Agriculture has October 20, 2011. equitable system possible. 5 CFR part 339 authorizes an agency to obtain submitted the following information The Department of Agriculture has collection requirement(s) to OMB for submitted the following information medical information about the applicant’s health status to assist review and clearance under the collection requirement(s) to OMB for Paperwork Reduction Act of 1995, review and clearance under the management in making employment decisions concerning positions that Public Law 104–13. Comments Paperwork Reduction Act of 1995, regarding (a) whether the collection of Public Law 104–13. Comments have specific medical standards or physical requirements in order to information is necessary for the proper regarding (a) Whether the collection of performance of the functions of the information is necessary for the proper determine medical/physical fitness. The Marketing and Regulatory Programs agency, including whether the performance of the functions of the information will have practical utility; agency, including whether the (MRP) of the Animal Plant and Health Inspection Service (APHIS) of the U.S. (b) the accuracy of the agency’s estimate information will have practical utility; of burden including the validity of the (b) the accuracy of the agency’s estimate Department of Agriculture hires individuals each year in commodity methodology and assumptions used; (c) of burden including the validity of the ways to enhance the quality, utility and methodology and assumptions used; (c) grading and inspection positions. These positions involve arduous duties and clarity of the information to be ways to enhance the quality, utility and collected; (d) ways to minimize the clarity of the information to be work under conditions, around moving burden of the collection of information collected; (d) ways to minimize the machinery, slippery surfaces, and high on those who are to respond, including burden of the collection of information noise level areas. APHIS will collect through the use of appropriate on those who are to respond, including information using the MRP–5 form automated, electronic, mechanical, or through the use of appropriate (Self-Certification Medical Statement). other technological collection automated, electronic, mechanical, or Need and Use of the Information: The techniques or other forms of information other technological collection information collected from the technology should be addressed to: Desk techniques or other forms of information prospective employees assists the MRP Officer for Agriculture, Office of technology should be addressed to: Desk officials, administrative personnel, and Information and Regulatory Affairs, Officer for Agriculture, Office of servicing Human Resources Offices in determining an applicant’s physical Office of Management and Budget Information and Regulatory Affairs, _ Office of Management and Budget fitness and suitability for employment (OMB), OIRA Submission@ (OMB), in positions with approved medical OMB.EOP.GOV or fax (202) 395–5806 [email protected] or standards and physical requirements and to Departmental Clearance Office, fax (202) 395–5806 and to Departmental and direct contact with meat, dairy, USDA, OCIO, Mail Stop 7602, Clearance Office, USDA, OCIO, Mail fresh or processed fruits and vegetables, Washington, DC 20250–7602. Stop 7602, Washington, DC 20250– and poultry intended for human Comments regarding these information 7602. Comments regarding these consumption and cotton and tobacco collections are best assured of having information collections are best assured products intended for consumer use. their full effect if received within 30 of having their full effect if received Denial of the information would greatly days of this notification. Copies of the within 30 days of this notification. hamper APHIS recruiting capability and submission(s) may be obtained by Copies of the submission(s) may be adversely affect management’s ability to calling (202) 720–8958. obtained by calling (202) 720–8958. facilitate hiring, placement, and An agency may not conduct or An agency may not conduct or utilization of qualified individuals into sponsor a collection of information sponsor a collection of information positions that have specific medical unless the collection of information unless the collection of information standards and physical requirements. displays a currently valid OMB control displays a currently valid OMB control Description of Respondents: number and the agency informs number and the agency informs Individuals or households. potential persons who are to respond to potential persons who are to respond to Number of Respondents: 524. the collection of information that such the collection of information that such Frequency of Responses: Reporting: persons are not required to respond to persons are not required to respond to On occasion. the collection of information unless it

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displays a currently valid OMB control collection for which approval from the of electric systems. The use of standard number. Office of Management and Budget forms, construction contracts, and (OMB) will be requested. procurement procedures helps assure Food Safety and Inspection Service DATES: Comments on this notice must be RUS that appropriate standards and Title: Salmonella Initiative Program. received by December 27, 2011. specification are maintained; RUS’ loan OMB Control Number: 0583–New. FOR FURTHER INFORMATION CONTACT: security is not adversely affected; and Summary of Collection: The Food Michele L. Brooks, Director, Program the loan and loan guarantee funds are Safety and Inspection Service (FSIS) has Development & Regulatory Analysis, used effectively and for the intended been delegated the authority to exercise Rural Utilities Service, USDA, 1400 purposes. The list of forms and the functions of the Secretary as Independence Ave., SW., STOP 1522, corresponding purposes for this provided in the Federal Meat Inspection Room 5168—South Building, information collection are as follows: Act (FMIA) (21 U.S.C. 601 et seq.), the Washington, DC 20250–1522. Poultry Products Inspection Act (PPIA) 1. RUS Form 168b, Contractor’s Bond Telephone: (202) 690–1078. Fax: (202) (21 U.S.C. 451 et seq.). These statutes 720–8435. This form is used to provide a surety mandate that FSIS protect the public by bond for contracts on RUS Forms 200, SUPPLEMENTARY INFORMATION: The Office ensuring that meat and poultry products 257, 786, 790, & 830. are safe, wholesome, unadulterated, and of Management and Budget’s (OMB) properly labeled and packaged. The regulation (5 CFR part 1320) implanting 2. RUS Form 168c, Contractor’s Bond Salmonella initiative Program (SIP) provisions of the Paperwork Reduction (less than $1 million) offers incentives to meat and poultry Act of 1995 (Pub. L. 104–13) requires This form is used to provide a surety slaughter establishments to control that interested members of the public bond in lieu of RUS Form 168b, when Salmonella in their operations. SIP and affected agencies have an contractor’s surety has accepted a small benefits public health because it opportunity to comment on information business administration guarantee. encourages establishments to test for collection and recordkeeping activities microbial pathogens, which is a key (see 5 CFR 1320.8(d)). This notice 3. RUS Form 187, Certificate of feature of effective process control. identifies an information collection that Completion—Contract Construction Need and Use of the Information: RUS is submitting to OMB for This form is used for the closeout of Under SIP, establishments will share extension. RUS Forms 200, 257, 786, and 830. their data with the Food Safety and Comments are invited on (a) Whether 4. RUS Form 198, Equipment Contract Inspection Service (FSIS); this will help the collection of information is the Agency in formulating its policy. necessary for the proper performance of This form is used for equipment Establishments that want to enter SIP the functions of the agency, including purchases. must send a protocol to FSIS informing whether the information will have practical utility; (b) the accuracy of the 5. RUS Form 200, Construction the Agency about their plans for Contract—Generating implementing SIP in their agency’s estimate of burden including establishment, including data the validity of the methodology and This form is used for generating plant collection, objectives and methods of assumption used; (c) ways to enhance construction or for the furnishing and evaluating the new technology for the quality, utility and clarity of the installation of major items of which they are receiving the regulator information to be collected; and equipment. waiver. (d) ways to minimize the burden of the collection of information on those who 6. RUS Form 213, Certificate (‘‘Buy Description of Respondents: American’’) Individuals or households. are to respond, including through the Number of Respondents: 300. use of appropriate automated, This form is used to document Frequency of Responses: electronic, mechanical, or other compliance with the ‘‘Buy American’’ Recordkeeping; Reporting: On occasion. technological collection techniques on requirement. Total Burden Hours: 206,000. other forms of information technology. Comments may be sent to: MaryPat 7. RUS Form 224, Waiver and Release Ruth Brown, Daskal, Program Development and of Lien Departmental Information Collection Regulatory Analysis, Rural Utilities This form is used by subcontractors to Clearance Officer. Service, U.S. Department of Agriculture, provide a release of lien in connection [FR Doc. 2011–27639 Filed 10–25–11; 8:45 am] 1400 Independence Ave., SW., Room with the closeout of RUS Forms 198, BILLING CODE 3410–DM–P 5166–South, STOP 1522, Washington, 200, 257, 786, 790, and 830. DC 20250–1522. Fax: (202) 720–8435. 8. RUS Form 231, Certificate of E-mail: [email protected]. DEPARTMENT OF AGRICULTURE Title: 7 CFR Part 1726, Electric Contractor System Construction Policies and This form is used for the closeout of Rural Utilities Service Procedures. RUS Forms 198, 200, 257, 786, and 830. Information Collection Activity; OMB Control Number: 0572–0107. Type of Request: Extension of a 9. RUS Form 238, Construction or Comment Request previously approved collection. Equipment Contract Amendment AGENCY: Rural Utilities Service, USDA. Abstract: In order to facilitate the This form is used to amend contracts ACTION: Notice and request for programmatic interest of the Rural except for distribution line construction comments. Electrification Act of 1936, 7 U.S.C. 901 contracts. et seq. (RE Act), and, in order to assure 10. RUS Form 254, Construction SUMMARY: In accordance with the that loans made or guaranteed by RUS Paperwork Reduction Act of 1995 (44 are adequately secured, RUS, as a Inventory U.S.C. Chapter 35, as amended), the secured lender, has established certain This form is used to document the Rural Utilities Service’s (RUS) invites standards and specifications for final construction in connection with comments on this information materials, equipment, and construction the closeout of RUS Form 830.

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11. RUS Form 257, Contract to DEPARTMENT OF COMMERCE Antidumping Order. In the Construct Buildings Department’s initial less-than-fair-value International Trade Administration investigation, the respondent company This form is used to construct [A–423–808] subject to investigation was ALZ N.V. headquarter buildings, generating plant On June 1, 2009, the Department buildings and other structure Stainless Steel Plate in Coils From determined that AMSB was the construction. Belgium: Notice of Preliminary Results successor-in-interest to Ugine & ALZ 12. RUS Form 307, Bid Bond of Antidumping Duty Changed Belgium (‘‘U&A Belgium’’), which was a Circumstances Review successor-in-interest to ALZ N.V.3 The This form is used to provide a bid Department is currently conducting an bond in RUS Forms 200, 257, 786, 790 AGENCY: Import Administration, administrative review of Aperam and 830. International Trade Administration, covering the period of review of May 1, Department of Commerce. 4 13. RUS Form 786, Electric System 2010 through April 30, 2011. SUMMARY: In response to a request from Communications and Control On June 14, 2011, Aperam requested the interested party, Aperam Stainless Equipment Contract that the Department initiate and Belgium N.V. (‘‘Aperam’’), the conduct an expedited changed This form is used for delivery and Department of Commerce (‘‘the circumstances review to determine that installation of equipment for system Department’’) initiated a changed for purposes of the antidumping law, communications. circumstances review (‘‘CCR’’) of the Aperam is the successor-in-interest to antidumping duty order of stainless AMSB.5 In response to Aperam’s 14. RUS Form 790, Electric System steel plate in coils (‘‘SSPC’’) from request, the Department initiated a Construction Contract Non-Site Specific Belgium.1 We have preliminarily changed circumstances review of the Construction (Notice and Instructions determined that Aperam is the antidumping duty order on SSPC from to Bidders) successor-in-interest to ArcelorMittal Belgium. See CCR Initiation Notice. On This form is used for limited Stainless Belgium N.V. (‘‘AMSB’’) with August 8, 2011, the Department issued distribution construction accounted for respect to the antidumping duty order a questionnaire to Aperam and based on 2 under work order procedure. on SSPC from Belgium. We invite our analysis of its response, we interested parties to comment on these preliminarily determine that Aperam is 15. RUS Form 792b, Certificate of preliminary results. Parties who submit the successor-in-interest to AMSB, Contractor and Indemnity Agreement comments in these reviews are which was itself a successor-in-interest (Line Extensions) requested to submit with each argument to the respondent in the less-than-fair- (1) A statement of the issue and (2) a value investigation, and that, as such, This form is used in the closeout of brief summary of the argument. Aperam is entitled to receive the same RUS Form 790. DATES: Effective Date: October 26, 2011. antidumping duty treatment accorded 16. RUS Form 830, Electric System FOR FURTHER INFORMATION CONTACT: AMSB. We have received no comments Construction Contract (Labor & George McMahon or Stephanie Moore, from the petitioners 6 regarding Material) AD/CVD Operations, Office 3, Import Aperam’s CCR request or questionnaire response. This form is used for distribution and/ Administration, International Trade or transmission project construction. Administration, U.S. Department of Scope of the Antidumping Duty Order Commerce, 14th Street & Constitution Estimate of Burden: Public reporting Avenue, NW., Washington, DC 20230; The product covered by this order is burden for this collection of information telephone: (202) 482–1167 and (202) certain stainless steel plate in coils. is estimated to average 1.5 minutes per 482–3692, respectively. Stainless steel is an alloy steel response. containing, by weight, 1.2 percent or SUPPLEMENTARY INFORMATION: Respondents: Businesses or other for less of carbon and 10.5 percent or more profits; not-for-profit institutions. Background of chromium, with or without other On May 21, 1999, the Department elements. The subject plate products are Estimated Number of Respondents: flat-rolled products, 254 mm or over in 1,210. published in the Federal Register an antidumping duty order on stainless width and 4.75 mm or more in Estimated Number of Responses per steel plate in coils from Belgium. See thickness, in coils, and annealed or Respondent: 4. otherwise heat treated and pickled or Estimated Total Annual Burden on 1 See Stainless Steel Plate in Coils From Belgium: Respondents: 104 hours. Notice of Initiation of Antidumping Duty Changed 3 See, e.g., ‘‘Successor-in-Interest Analysis’’ Circumstances Review, 76 FR 45511 (July 29, 2011) Memorandum from G. McMahon to J. Terpstra, at Copies of this information collection, (‘‘CCR Initiation Notice’’). page 2 (June 1, 2009), Attached as Appendix 4 to and related form and instructions, can 2 See Antidumping Duty Orders; Certain Stainless Aperam’s request for a CCR; see also Stainless Steel be obtained from MaryPat Daskal, Steel Plate in Coils From Belgium, Canada, Italy, Plate in Coils From Belgium: Notice of Initiation of Antidumping Duty Changed Circumstances Review, Program Development and Regulatory the Republic of Korea, South Africa, and Taiwan, 64 FR 27756 (May 21, 1999); Notice of Amended 76 FR 45511, 45512 (July 29, 2011). Analysis, at (202) 720–7853. Antidumping Duty Orders; Certain Stainless Steel 4 See Initiation of Antidumping and All responses to this notice will be Plate in Coils From Belgium, Canada, Italy, the Countervailing Duty Administrative Reviews and Request for Revocation in Part, 76 FR 37781 (June summarized and included in the request Republic of Korea, South Africa, and Taiwan, 68 FR 11520 (March 11, 2003); Notice of Amended 28, 2011). for OMB approval. All comments will Antidumping Duty Orders; Certain Stainless Steel 5 See Aperam’s letter to the Secretary of also become a matter of public record. Plate in Coils From Belgium, Canada, Italy, the Commerce, dated, June 14, 2011. 6 Dated: October 19, 2011. Republic of Korea, South Africa, and Taiwan, 68 FR Petitioners consist of: Allegheny Ludlum 16117 (April 2, 2003); Notice of Correction to the Corporation, North American Stainless, United Jonathan Adelstein, Amended Antidumping Duty Orders; Certain Auto Workers Local 3303, Zanesville Arco Administrator, Rural Utilities Service. Stainless Steel Plate in Coils From Belgium, Independent Organization, and the United Steel, Canada, Italy, the Republic of Korea, South Africa, Paper and Forestry, Rubber, Manufacturing, Energy, [FR Doc. 2011–27642 Filed 10–25–11; 8:45 am] and Taiwan, 68 FR 20114 (April 24, 2003) Allied Industrial and Service Workers International BILLING CODE 3410–15–P (collectively, ‘‘Antidumping Order’’). Union, AFL–CIO/CLC.

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otherwise descaled. The subject plate Department will generally consider the decision; (5) list of the AMSB and may also be further processed (e.g., new company to be the successor to the Aperam’s shareholders which indicates cold-rolled, polished, etc.) provided that previous company if its resulting no changes before and after the spin-off; it maintains the specified dimensions of operation is similar to that of its and (6) organization charts which show plate following such processing. predecessor. See CCR Japan; see also that the management structure prior to Excluded from the scope of this order Brass Sheet and Strip From Canada; and after the spin-off of the stainless are the following: (1) Plate not in coils; Final Results of Antidumping Duty business to Aperam is almost identical. (2) Plate that is not annealed or Administrative Review, 57 FR 20460 In its CCR questionnaire response, otherwise heat treated and pickled or (May 13, 1992), and accompanying dated September 12, 2011, Aperam otherwise descaled; (3) Sheet and strip; Issues and Decision Memorandum at provided further information to support and (4) Flat bars. Comment 1. Thus, if the evidence its claim that it is the successor-in- The merchandise subject to this order demonstrates that, with respect to the is currently classifiable in the interest to AMSB. Specifically, Aperam production and sale of the subject reported that, pursuant to the corporate Harmonized Tariff Schedule of the merchandise, the new company United States (‘‘HTSUS’’) at name change from AMSB to Aperam, operates as the same business entity as there were no changes to the production subheadings: 7219.11.00.30, the prior company, the Department will facilities, production capacity of SSPC, 7219.11.00.60, 7219.12.00.06, assign the new company the cash- channels of distribution, customer 7219.12.00.21, 7219.12.00.26, deposit rate of its predecessor. Id.; see categories, major inputs from affiliated 7219.12.00.51, 7219.12.00.56, also Circular Welded Non-Alloy Steel parties or sales to its affiliates. Aperam 7219.12.00.66, 7219.12.00.71, Pipe From the Republic of Korea; also indicated that there were no 7219.12.00.81, 7219.31.00.10, Preliminary Results of Antidumping changes in the types of SSPC produced 7219.90.00.10, 7219.90.00.20, Duty Changed Circumstances Review, before and after the corporate name 7219.90.00.25, 7219.90.00.60, 63 FR 14679 (March 26, 1998), change from AMSB to Aperam. With 7219.90.00.80, 7220.11.00.00, unchanged in Circular Welded Non- regard to its customers in both the 7220.20.10.10, 7220.20.10.15, Alloy Steel Pipe From Korea; Final United States and in its home market, 7220.20.10.60, 7220.20.10.80, Results of Antidumping Duty Changed 7220.20.60.05, 7220.20.60.10, Circumstances Review, 63 FR 20572 Aperam’s response shows that there 7220.20.60.15, 7220.20.60.60, (April 27, 1998), in which the were no significant changes resulting 7220.20.60.80, 7220.90.00.10, Department found that a company from the corporate name change, and 7220.90.00.15, 7220.90.00.60, and which only changed its name and did Aperam cited the current market 7220.90.00.80. Although the HTSUS not change its operations is a successor- situation as the basis for the changes subheadings are provided for which occurred. Id. at pages 2–6. in-interest to the company before it { } convenience and customs purposes, the changed its name. Aperam states, ‘‘ n o changes have written description of the merchandise occurred at Aperam Stainless Belgium subject to these orders is dispositive. In accordance with 19 CFR 351.216, as a result of the spin-off, nor have there we preliminarily determine that Aperam been any changes in the broader Preliminary Results of Changed is the successor-in-interest to AMSB. In organization in terms of corporate Circumstances Review its June 14, 2011, CCR request, Aperam strategy, organizational structure, In making a successor-in-interest provided evidence supporting its claim management, ownership, production, or determination, the Department to be the successor-in-interest to AMSB. sales.’’ Id. at page 7. examines several factors including, but Documentation attached to Aperam’s In summary, Aperam has presented not limited to, changes in: (1) CCR request shows that the evidence to support its claim of Management; (2) production facilities; shareholders of Aperam’s corporate successorship. The record indicates that (3) supplier relationships; and (4) parent, ArcelorMittal S.A., approved a the corporate name change to Aperam customer base. See, e.g., Carbon and spin-off of AMSB’s stainless and Certain Alloy Steel Wire Rod From specialty steels business into Aperam, has not significantly changed the Trinidad and Tobago: Notice of and the resulting name change to operations of the company. The Initiation and Preliminary Results of Aperam Stainless Belgium N.V. resulted production facilities, supplier Antidumping Duty Changed in little or no change in management, relationships, management, and Circumstances Review, 73 FR 17952, production facility, supplier customer base of Aperam are 17953 (April 2, 2008), unchanged in relationships, or customer base. This substantially unchanged from their Carbon and Certain Alloy Steel Wire documentation consists of: (1) Official status prior to the corporate name Rod From Trinidad and Tobago: Notice minutes of the extraordinary general change. The record evidence of Final Results of Antidumping Duty meeting of ArcelorMittal shareholders demonstrates that Aperam operates Changed Circumstances Review, 73 FR regarding the shareholders’ approval of essentially in the same manner as the 30052 (May 23, 2008); see also Ball the spin-off of ArcelorMittal’s stainless predecessor company, AMSB. Bearings and Parts Thereof from Japan: and specialty steels business into We find that the evidence provided by Initiation and Preliminary Results of Aperam; (2) a letter from Lakshmi N. Aperam is sufficient to preliminarily Changed-Circumstances Review, 71 FR Mittal, CEO, dated December 13, 2010, determine that the change of its 14679, 14680 (March 23, 2006), regarding the announcement of the spin- corporate name from AMSB to Aperam unchanged in Notice of Final Results of off of the stainless steel business from did not affect the company’s operations Antidumping Duty Changed- ArcelorMittal to Aperam; (3) name in a meaningful way. Therefore, based Circumstances Review: Ball Bearings change registration with the Economics on the aforementioned reasons, we and Parts Thereof from Japan, 71 FR Ministry, Government of Belgium; (4) preliminarily determine that Aperam is 26452 (May 5, 2006) (collectively, ‘‘CCR the Department’s ‘‘Successor-in-Interest the successor-in-interest to AMSB and, Japan’’). Although no single factor or Analysis’’ Memorandum, dated June 1, thus, should receive the same combination of factors will necessarily 2009, regarding a prior successor-in- antidumping duty treatment with provide a dispositive indication of a interest determination and the criteria respect to stainless steel plate in coils successor-in-interest relationship, the which served as the basis for this from Belgium as the former AMSB.

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Public Comment Department of Environment and Natural Specimens would be collected in Any interested party may request a Resources Aquariums Division (North Federal waters from 3 miles (4.8 km) hearing within 30 days of publication of Carolina Aquariums). If granted, the EFP offshore out to 100 fathoms (182 m), ° ′ ° ′ this notice. Any hearing, if requested, would authorize North Carolina from 33 10 N lat. to 36 30 N lat. off will be held no later than 44 days after Aquariums to collect, with certain North Carolina. The project proposes to the date of publication of this notice, or conditions, various species of reef fish use hook-and-line gear, black sea bass the first workday thereafter. Case briefs and live rock in Federal waters off North pots and minnow traps to collect fish, from interested parties may be Carolina. The specimens would be used and SCUBA gear to collect live rock by submitted not later than 30 days after in educational exhibits displaying North hand. This EFP would authorize the date of publication of this notice. Carolina native species at aquariums sampling operations to be conducted on Rebuttal briefs, limited to the issues located at Pine Knoll Shores, Roanoke three vessels to be named by North raised in the case briefs, may be filed Island, Fort Fisher, and Jeanette’s Ocean Carolina Aquariums and designated in Pier, NC. not later than 37 days after the date of the EFP. The specimens would be publication of this notice. All written DATES: Comments must be received no opportunistically collected year-round comments shall be submitted in later than 5 p.m., eastern standard time, for a period of up to 2 years, accordance with 19 CFR 351.303. on November 25, 2011. commencing on the date of issuance of Persons interested in attending the ADDRESSES: You may submit comments the EFP. The EFP would not authorize hearing, if one is requested, should on the application by any of the the collection of species with an annual contact the Department for the date and following methods: catch limit of zero (Red snapper, • time of the hearing. The Department E-mail: [email protected]. Warsaw grouper, and Speckled hind). intends to issue the final results within Include in the subject line of the e-mail 270 days from the date of initiation of comment the following document The overall intent of the project is to this changed circumstances review, in identifier: ‘‘North Carolina Aquariums’’. incorporate North Carolina native accordance with 19 CFR 351.216(e), • Mail: Karla Gore, Southeast species into the educational exhibits at including the results of its analysis of Regional Office, NMFS, 263 13th the four aquariums located at Pine Knoll issues raised in any written comments. Avenue South, St. Petersburg, FL 33701. Shores, Roanoke Island, Fort Fisher, and The current requirement for a cash The application and related Jeanette’s Ocean Pier, North Carolina. deposit of estimated antidumping duties documents are available for review The aquariums use these displays of on all subject merchandise will upon written request to any of the above native North Carolina habitats and continue unless and until it is modified addresses. species to teach the public about pursuant to the final results of this FOR FURTHER INFORMATION CONTACT: conservation of these resources. changed circumstances review. Karla Gore, 727–824–5305; e-mail: NMFS finds this application warrants We are issuing and publishing these [email protected]. further consideration. Based on a results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) SUPPLEMENTARY INFORMATION: The EFP is preliminary review, NMFS intends to of the Tariff Act of 1930, as amended, requested under the authority of the issue an EFP. Possible conditions the and 19 CFR 351.216. Magnuson-Stevens Fishery agency may impose on this permit, if it is indeed granted, include but are not Dated: October 20, 2011. Conservation and Management Act (16 U.S.C 1801 et seq.), and regulations at limited to, a prohibition of conducting Ronald K. Lorentzen, 50 CFR 600.745(b) concerning exempted research within marine protected areas, Deputy Assistant Secretary for Import fishing. marine sanctuaries, special management Administration. The proposed species collection zones, or artificial reefs without [FR Doc. 2011–27749 Filed 10–25–11; 8:45 am] involves activities covered by additional authorization. Additionally, BILLING CODE 3510–DS–P regulations implementing the Fishery NMFS prohibits the possession of Management Plan (FMP) for the Nassau grouper, goliath grouper, red Snapper-Grouper Fishery of the South DEPARTMENT OF COMMERCE snapper, speckled hind or Warsaw Atlantic Region and the FMP for Coral, grouper, and requires any sea turtles National Oceanic and Atmospheric Coral Reefs, and Live/Hard Bottom taken incidentally during the course of Administration Habitats of the South Atlantic Region. fishing or scientific research activities to The applicant requires authorization to be handled with due care to prevent RIN 0648–XA643 opportunistically collect 878 live fish in injury to live specimens, observed for the South Atlantic snapper-grouper Snapper-Grouper Fishery Off the activity, and returned to the water. The complex, and a specified quantity of Southern Atlantic States and Coral and EFP would specify that any harvest of live rock. The fish, listed by common Coral Reefs Fishery in the South live rock would have to be replaced by name (total number of fish), and amount Atlantic; Exempted Fishing Permit an equivalent amount of new rock of live rock to be harvested over a 2-year substrate, or be obtained from a period by North Carolina Aquariums AGENCY: National Marine Fisheries commercial (aquaculture) source. A includes: red hind (16), rock hind (16), Service (NMFS), National Oceanic and final decision on the issuance of the EFP Atmospheric Administration (NOAA), red grouper (16), gag (16), scamp (16), will depend on NMFS’ review of public Commerce. red porgy (16), yellowfin grouper (9), comments received on the application, ACTION: Notice of receipt of an yellowmouth grouper (16), snowy grouper (12), silk snapper (16), consultations with the affected state, the application for an exempted fishing South Atlantic Fishery Management permit; request for comments. vermilion snapper (78), tomtate (200), smallmouth grunt (100), cottonwick Council, and the U.S. Coast Guard, and SUMMARY: NMFS announces the receipt (200), yellowedge grouper (9), graysby a determination that it is consistent with of an application for an exempted (16), coney (16), yellowtail snapper (84), all applicable laws. fishing permit (EFP) from Keith Farmer, schoolmaster snapper (26), and 300 lb Authority: 16 U.S.C 1801 et seq. on behalf of the North Carolina (136 kg) of live rock.

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Dated: October 21, 2011. Dated: October 20, 2011. community-at-large, as well as Federal Emily H. Menashes, Tracey L. Thompson, agency partners. Individual council Acting Director, Office of Sustainable Acting Director, Office of Sustainable members act as liaisons between the Fisheries, National Marine Fisheries Service. Fisheries, National Marine Fisheries Service. Sanctuary and their constituent groups. [FR Doc. 2011–27745 Filed 10–25–11; 8:45 am] [FR Doc. 2011–27630 Filed 10–25–11; 8:45 am] The council holds a minimum of four BILLING CODE 3510–22–P BILLING CODE 3510–22–P regular meetings per year, and an annual retreat in the summer. Authority: 16 U.S.C. 1431, et seq. DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) National Oceanic and Atmospheric National Oceanic and Atmospheric Administration Administration Dated: October 18, 2011. Daniel J. Basta, RIN 0648–XA788 Availability of Seats for the Cordell Director, Office of National Marine Bank National Marine Sanctuary Sanctuaries, National Ocean Service, North Pacific Fishery Management Advisory Council Council (NPFMC); Public Meetings National Oceanic and Atmospheric Administration. AGENCY: Office of National Marine AGENCY: National Marine Fisheries Sanctuaries (ONMS), National Ocean [FR Doc. 2011–27584 Filed 10–25–11; 8:45 am] Service (NMFS), National Oceanic and Service (NOS), National Oceanic and BILLING CODE 3510–NK–M Atmospheric Administration (NOAA), Atmospheric Administration (NOAA), Commerce. Department of Commerce (DOC). DEPARTMENT OF COMMERCE ACTION: Notice of public meetings. ACTION: Notice and request for applications. SUMMARY: The North Pacific Fishery National Oceanic and Atmospheric Management Council’s (Council) Gulf of SUMMARY: The ONMS is seeking Administration Alaska (GOA) and Bering Sea/Aleutian applications for the following vacant RIN 0648–XA650 Islands (BS/AI) Groundfish Plan Teams seats on the Cordell Bank National will meet in Seattle. Marine Sanctuary Advisory Council: Small Takes of Marine Mammals DATES: November 14–18, 2011. The Education, Primary and Alternate seats; Incidental to Specified Activities; Pier meetings will begin at 9 a.m., Monday, Fishing, Primary and Alternate seats; 36/Brannan Street Wharf Project in the November 14, and continue through Research, Alternate seat; Community-at- San Francisco Bay, CA Large Mann County, Alternate seat; Friday, November 18, 2011. AGENCY: National Marine Fisheries Community-at-Large Sonoma County, ADDRESSES: The meetings will be held at Service (NMFS), National Oceanic and Alternate seat. Applicants are chosen the Alaska Fisheries Science Center, Atmospheric Administration (NOAA), based upon their particular expertise 7600 Sand Point Way, NE., Building 4, Commerce. and experience in relation to the seat for Observer Training Room (GOA Plan ACTION: Notice; proposed incidental Team) and Traynor Room (BS/AI Plan which they are applying; community and professional affiliations; philosophy harassment authorization; request for Team), Seattle, WA. comments. Council address: North Pacific regarding the protection and Fishery Management Council, 605 W. management of marine resources; and SUMMARY: NMFS has received a 4th Ave., Suite 306, Anchorage, AK possibly the length of residence in the complete and adequate application from 99501–2252. area affected by the sanctuary. the United States Army Corps of Applicants who are chosen as members FOR FURTHER INFORMATION CONTACT: Jane Engineers, San Francisco District should expect to serve three-year terms, (USACE), on behalf of the Port of San DiCosimo or Diana Stram, NPFMC; pursuant to the council’s Charter. telephone: (907) 271–2809. Francisco (Port), for an Incidental DATES: Applications are due by Harassment Authorization (IHA) to take SUPPLEMENTARY INFORMATION: The Plan December 1, 2011. Teams will compile and review the marine mammals, by harassment, ADDRESSES: Application kits may be incidental to pile driving during annual Groundfish Stock Assessment obtained from http:// and Fishery Evaluation Report (SAFE), construction of the Brannan Street cordellbank.noaa.gov/ or Kaitlin Graiff, Wharf. Pursuant to the Marine Mammal including the Economic Report, the [email protected], P.O. Box 159, Ecosystems Consideration Chapter, the Protection Act (MMPA), NMFS is Olema, CA 94950. Completed proposing to issue an IHA to stock assessments for BSAI and GOA applications should be sent to the above groundfish, and recommend final incidentally harass, by Level B postal or e-mail address, or faxed to harassment, four species of marine groundfish catch specifications for 415–663–0315 attn. Kaitlin Graiff. 2012/13. mammals during the specified activity FOR FURTHER INFORMATION CONTACT: The Agenda is subject to change, and within a specific geographic region and the latest version will be posted at Kaitlin Graiff, Advisory Council is requesting comments on its proposal. http://www.alaskafisheries.noaa.gov/ Coordinator, 415–663–0314 x105, DATES: Comments and information must npfmc/. [email protected]. be received no later than November 25, SUPPLEMENTARY INFORMATION: The 2011. Special Accommodations Cordell Bank National Marine Sanctuary ADDRESSES: Comments on the These meetings are physically Advisory Council was established in application and this proposal should be accessible to people with disabilities. 2001 to ensure continued public addressed to Michael Payne, Chief, Requests for sign language participation in the management of the Permits, Conservation and Education interpretation or other auxiliary aids sanctuary. Council seats are occupied by Division, Office of Protected Resources, should be directed to Gail Bendixen, members representing research, National Marine Fisheries Service, 1315 (907) 271–2809, at least 5 working days conservation, maritime activity, fishing, East-West Highway, Silver Spring, MD prior to the meeting date. education, Mann and Sonoma County 20910–3225. The mailbox address for

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providing e-mail comments is the permissible methods of taking and The Port proposes to construct a pile- [email protected]. NMFS is not requirements pertaining to the supported park that would be known as responsible for e-mail comments sent to mitigation, monitoring and reporting of the ‘‘Brannan Street Wharf’’ and would addresses other than the one provided such takings are set forth. NMFS has replace the existing Pier 36 and provide here. Comments sent via e-mail, defined ‘‘negligible impact’’ in 50 CFR recreational space for the public. The including all attachments, must not 216.103 as ‘‘ * * * an impact resulting proposed project would require exceed a 10-megabyte file size. from the specified activity that cannot installation of 261 steel and concrete Instructions: All comments received be reasonably expected to, and is not piles and 57,000 square feet (ft2) of new are a part of the public record and will reasonably likely to, adversely affect the decking. Because elevated sound levels generally be posted to http:// species or stock through effects on from pile driving have the potential to www.nmfs.noaa.gov/pr/permits/ annual rates of recruitment or survival.’’ result in marine mammal harassment, incidental.htm without change. All Section 101(a)(5)(D) of the MMPA NMFS is proposing to issue an IHA for Personal Identifying Information (for established an expedited process by take incidental to the specified activity. example, name, address, etc.) which citizens of the United States can voluntarily submitted by the commenter apply for an authorization to Description of the Specified Activity may be publicly accessible. Do not incidentally take small numbers of The Port proposes to replace the submit Confidential Business marine mammals by harassment. existing Pier 36 with a pile-supported Information or otherwise sensitive or Section 101(a)(5)(D) further established protected information. a 45-day time limit for NMFS’ review of park along the San Francisco waterfront. A copy of the application containing an application, followed by a 30-day The proposed park would provide a a list of the references used in this public notice and comment period on new open space for the purpose of document may be obtained by writing to any proposed authorizations for the public recreation and include the 2 the address specified above, telephoning incidental harassment of marine following: a 26,000 ft raised lawn area; the contact listed below (see FOR mammals. Within 45 days of the close a waterside walkway with seating, FURTHER INFORMATION CONTACT), or of the comment period, NMFS must shelters, and picnic tables; and a 2,000 2 visiting the internet at: http:// either issue or deny the authorization. ft small craft float and accessible www.nmfs.noaa.gov/pr/permits/ Except with respect to certain gangway for launching non-motorized incidental.htm. Documents cited in this activities not pertinent here, the MMPA recreational vessels. notice may also be viewed, by defines ‘‘harassment’’ as: To construct the 57,000 ft2 open appointment, during regular business space, the existing overwater Pier 36 hours, at the aforementioned address. any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine structures would be demolished, the FOR FURTHER INFORMATION CONTACT: mammal or marine mammal stock in the wild existing supporting caissons would be Michelle Magliocca, Office of Protected [Level A harassment]; or (ii) has the potential removed, and 261 steel and concrete Resources, NMFS, (301) 427–8401. to disturb a marine mammal or marine piles would be installed at the site using SUPPLEMENTARY INFORMATION: mammal stock in the wild by causing vibratory and impact pile driving. disruption of behavioral patterns, including, Demolition and removal of the caissons Background but not limited to, migration, breathing, Sections 101(a)(5)(A) and (D) of the nursing, breeding, feeding, or sheltering is not expected to harass marine MMPA (16 U.S.C. 1361 et seq.) direct [Level B harassment]. mammals because these activities would occur above water and the height of the the Secretary of Commerce to allow, Summary of Request upon request, the incidental, but not existing Pier 36 decking prevents intentional, taking of small numbers of On May 6, 2011, NMFS received an marine mammals from hauling out. (The marine mammals by United States application from the USACE, on behalf nearest haul-out site is over 3.2 citizens who engage in a specified of the Port, requesting an IHA for the kilometers (km) (2 miles [mi]) away at activity (other than commercial fishing) take, by Level B harassment, of small Yerba Buena Island.) The caissons within a specific geographical region if numbers of Pacific harbor seals (Phoca would be removed using a barge certain findings are made and either vitulina), California sea lions (Zalophus mounted excavator and this method is regulations are issued or, if the taking is californianus), gray whales not expected to generate sound at limited to harassment, a notice of a (Eschrichtius robustus), and Pacific pressures outside of the ambient noise proposed authorization is provided to harbor porpoises (Phocoena phocoena) conditions. Installation of the new cast- the public for review. incidental to pile driving activities in-place concrete decking would also Authorization for incidental takings during construction of the Brannan occur above water. Installation of the shall be granted if NMFS finds that the Street Wharf in San Francisco, 261 steel and concrete piles, however, taking will have a negligible impact on California. Upon receipt of additional would require in-water pile driving that the species or stock(s), will not have an information and a revised application, could produce high-intensity sound and unmitigable adverse impact on the NMFS determined the application has the potential to harass marine availability of the species or stock(s) for complete and adequate on August 7, mammals. A breakdown of proposed subsistence uses (where relevant), and if 2011. pile size and type is shown in Table 1.

TABLE 1—SUMMARY OF PILE TYPES AND PILE DRIVING ACTIVITY

Max piles per Pile type Total piles Pile driver day

24-inch octagonal concrete ...... 141 Impact ...... 8 24-inch steel shell ...... 116 Vibratory and impact ...... 5 36-inch steel shell ...... 4 Vibratory and impact ...... 4

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Of the 261 piles, about 141 would be 1.5 seconds per blow on average. A For example, 10 dB yields a sound level 24-inch (in) octagonal concrete piles bubble curtain would be used as a 10 times more intense than 1 dB, while driven in water depths of 2 to 15 ft sound attenuation device during impact a 20 dB level equates to 100 times more mean lower low water. These piles pile driving for the 24-in and 36-in steel intense, and a 30 dB level is 1,000 times would be driven to a depth of 60 ft shell piles. more intense. Sound levels are below the mudline elevation—like all Region of Activity compared to a reference sound pressure the other piles—using an impact (micro-Pascal) to identify the medium. hammer. Each pile may take 20 minutes The proposed activity would occur in For air and water, these reference to drive into the substrate, which the San Francisco Bay at Pier 36, four pressures are ‘‘re: 20 mPa’’ and ‘‘re: 1 consists of about 20 ft of bay mud blocks south of the San Francisco mPa,’’ respectively. Root mean square Oakland Bay Bridge. More specifically, underlain by a sand mixture. Up to 800 (RMS) is the quadratic mean sound this area is located between Pier 30–32 blows from an impact hammer would be pressure over the duration of an and Pier 38, directly adjacent to the east necessary for each concrete pile. impulse. RMS is calculated by squaring Of the 261 piles, about 116 would be side of the Embarcadero and within the South of Market district of San all of the sound amplitudes, averaging 24-in steel shell piles driven in water the squares, and then taking the square depths of zero to 6 ft mean lower low Francisco. San Francisco Bay and the adjacent Sacramento-San Joaquin Delta root of the average (Urick, 1975). RMS water. These piles would be installed accounts for both positive and negative nearest the shoreline as pier support make up one of the largest estuarine systems on the continent. The Bay has values; squaring the pressures makes all piles and would be used in place of values positive so that they may be concrete piles due to the presence of undergone extensive industrialization, but remains an important environment accounted for in the summation of rock dike material along the shore. pressure levels (Hastings and Popper, Installation would include about eight for healthy marine mammal populations year round. The area surrounding the 2005). This measurement is often used minutes of vibratory pile driving, in the context of discussing behavioral followed by up to 300 blows from an proposed activity is an intertidal landscape with heavy industrial use and effects, in part because behavioral impact hammer. effects, which often result from auditory The remaining 4 piles would be 36-in boat traffic. cues, may be better expressed through steel shell piles used for the new Dates of Activity averaged units rather than by peak floating dock. These piles would be Wharf and pier demolition—which is pressures. installed in water depths of 10 to 15 ft not expected to harass marine mean lower low water. Each pile A review of numerous pile driving mammals—may begin in January 2012 projects with comparable water depth installation would begin with five to 15 and last for five months. The new wharf and substrate conditions was conducted minutes of vibratory pile driving, construction, including pile driving, is to identify source sound level data and followed by about 600 blows from an scheduled to begin in May 2012 and end estimate potential sound levels for pile impact hammer. 13 months later; however, pile driving driving activities around Pier 36. In Only one pile type is expected to be is expected to be complete by December installed on any given day. 2012. their calculations, the Port Conservatively assuming the maximum conservatively assumed that the use of vibratory time and number of impact Sound Propagation a bubble curtain for steel shell piles blows required for each pile, a total of For background, sound is a would reduce sound levels by 5 dB 988 minutes of vibratory driving and mechanical disturbance consisting of RMS. A conservative attenuation factor 150,000 impact blows would be minute vibrations that travel through a of 16 dB RMS (about 5 dB RMS per necessary over the 12-month duration of medium, such as air or water, and is doubling of distance) was also assumed the project. All vibratory pile driving generally characterized by several in the Port’s analysis; sound attenuation would use a standard frequency variables. Frequency describes the would likely be greater than 16 dB RMS hammer similar to an APE 150, which sound’s pitch and is measured in hertz for such shallow water pile driving produces up to 1,800 vibrations per (Hz) or kilohertz (kHz), while sound (CalTrans, 2009). Pile driving at Pier 36 minute. All impact pile driving would level describes the sound’s loudness is expected to occur in water depths of use a DelMag D46–32 diesel impact and is measured in decibels (dB). Sound zero to 15 feet. Maximum sound hammer, which produces about 122,000 level increases or decreases pressure levels for pile driving activities foot-pounds maximum energy blow at exponentially with each dB of change. are shown in Table 2.

TABLE 2—MEASURED UNATTENUATED SOUND PRESSURE LEVELS IN THE NEAR FIELD (10 M) DURING PILE DRIVING IN SAN FRANCISCO BAY (CALTRANS, 2009)

Sound level Sound level Pile type Attenuation device (impact) (vibratory)

24-in octagonal concrete ...... None ...... 170 dB n/a 24-in steel shell ...... Bubble curtain ...... 190 dB 165 dB 36-in steel shell ...... Bubble curtain ...... 190 dB 175 dB

Description of Marine Mammals in the humpback whale (Megaptera pile driving. Sea otters are managed by Area of the Specified Activity noveangliae), and sea otter (Enhydra the United States Fish and Wildlife lutris). However, humpback whales are Service. Therefore, these two species are Marine mammals with confirmed considered extremely rare in San not discussed further. occurrences in San Francisco Bay are Francisco Bay and are highly unlikely to the Pacific harbor seal, California sea be present in the project vicinity during lion, gray whale, harbor porpoise,

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Pacific Harbor Seals approaching carrying capacity and is Pier 36 have been near Yerba Buena Pacific harbor seals reside in coastal reaching ‘‘optimum sustainable Island, about 3.2 km (2 mi) away. They and estuarine waters off Baja, California, population’’ limits, as defined by the may occur in the action area during a north to British Columbia, west through MMPA. California sea lions are not time when they could be affected by the Gulf of Alaska, and in the Bering listed under the ESA nor considered pile driving activities; however, their Sea. The most recent harbor seal counts depleted under the MMPA. presence in the vicinity is rare. Harbor Sandy beaches are preferred habitat estimate the California stock of Pacific porpoises in California are not listed for haul-out sites, but marina docks, harbor seals at 34,233 individuals. The under the ESA nor considered depleted jetties, and buoys are often used in under the MMPA. population appears to be stabilizing at California for resting, breeding, and Cetaceans are divided into three what may be their carrying capacity, molting. In San Francisco Bay, sea lions functional hearing groups: low- and human-caused mortality is have been observed at Angel Island and frequency, mid-frequency, and high- declining (NMFS, 2005). The California are known to haul out on buoys and frequency. Harbor porpoises are stock of Pacific harbor seals is not listed floating docks near Pier 39, which is considered high-frequency cetaceans under the Endangered Species Act about 3.6 km (2.2 mi) north of the and their estimated auditory bandwidth (ESA) nor considered depleted under proposed project site. Sea lions usually (lower to upper frequency hearing cut- the MMPA. appear at Pier 39 after returning from off) ranges from 200 Hz to 180 kHz. In California, approximately 400–500 the Channel Islands at the beginning of Gray Whales harbor seal haul-out sites are widely August. No other sea lion haul-out sites distributed along the mainland and have been identified in the Bay and no Gray whales are large mysticetes, or offshore islands, including intertidal pupping has been observed in the Bay. baleen whales, found mainly in shallow sandbars, rocky shores, and beaches. Sea lions observed within this area may coastal waters of the North Pacific The northside of Yerba Buena Island is be transiting to and from nearby piers or Ocean. Two isolated geographic the closest haul-out to the project opportunistically foraging. distributions of gray whales exist: the location, approximately 3.2 km (2 mi) Pinnipeds produce a wide range of Eastern North Pacific stock and the from Pier 36. Although harbor seals use social signals, most occurring at Western North Pacific stock. The this haul-out year-round, Yerba Buena relatively low frequencies (Southall et Eastern North Pacific stock migrates as Island is not considered a pupping site. al., 2007), suggesting that hearing is far south as Baja, California for breeding In California, breeding occurs from keenest at these frequencies. Pinnipeds and calving in the winter and as far March to May, and pupping between communicate acoustically both on land north as the Bering and Chukchi Seas April and May depending on local and underwater, but have different for summer feeding. During migration, populations. Harbor seals around Pier hearing capabilities dependent upon the gray whales occasionally enter rivers 36 would likely be transiting to and medium (air or water). Based on and bays in very low numbers. They from their closest haul-out (Yerba Buena numerous studies, as summarized in could potentially be in the proposed Island) or opportunistically foraging. Southall et al. (2007), pinnipeds are project area during pile driving Herring spawning events could result in more sensitive to a broader range of activities. The most recent 2008 stock harbor seals congregating and sound frequencies underwater than in assessment report estimated the Eastern approaching the action area sporadically air. Underwater, pinnipeds can hear North Pacific stock to be approximately in an unpredictable manner (pers. frequencies from 75 Hz to 75 kHz. In air, 18,813 individuals with an increasing comm., M. DeAngelis to M. Magliocca). pinnipeds can hear frequencies from 75 population trend over the past several Pinnipeds produce a wide range of Hz to 30 kHz (Southall et al., 2007). decades. Gray whales were delisted social signals, most occurring at from the ESA in 1994 and are not Harbor Porpoises relatively low frequencies (Southall et considered depleted under the MMPA. al., 2007), suggesting that hearing is Harbor porpoises have a wide and Gray whales, like other baleen whales, keenest at these frequencies. Pinnipeds discontinuous range that includes the are in the low-frequency hearing group. communicate acoustically both on land North Atlantic and North Pacific. In the There are no empirical data on gray and underwater, but have different Eastern North Pacific, harbor porpoises whale hearing; however, Wartzok and hearing capabilities dependent upon the are found in coastal and inland waters Ketten (1999) suggest that mysticete medium (air or water). Based on from Point Conception, California to hearing is most sensitive at the same numerous studies, as summarized in Alaska. Harbor porpoises in United frequencies at which they vocalize. Southall et al. (2007), pinnipeds are States waters are divided into 10 stocks, Underwater sounds produced by gray more sensitive to a broader range of based on genetics, movement patterns, whales range from 20 Hz to 20 kHz sound frequencies underwater than in and management. Any harbor porpoises (Richardson et al., 1995). air. Underwater, pinnipeds can hear encountered during the proposed frequencies from 75 Hz to 75 kHz. In air, project would likely be part of the San Potential Effects on Marine Mammals pinnipeds can hear frequencies from 75 Francisco-Russian River stock, which The proposed action consists of both Hz to 30 kHz (Southall et al., 2007). has an estimated abundance of 9,189 in-water and above-water components, animals. This stock appeared to be but the only activity with the potential California Sea Lions stable or declining between 1988 and to take marine mammals is pile driving. California sea lions reside throughout 1991 and has steadily increased since Elevated in-water sound levels from pile the Eastern North Pacific Ocean in 1993, although not significantly. Harbor driving in the proposed project area may shallow coastal and estuarine waters, porpoises are not commonly sighted in temporarily impact marine mammal ranging from Central Mexico to British San Francisco Bay, but have been behavior. Elevated in-air sound levels Columbia, Canada. Their primary observed traveling in small pods of two are not a concern because the nearest breeding range extends from Central to three animals on occasion (pers. pinniped haul-out is approximately 3.2 Mexico to the Channel Islands in comm., M. DeAngelis to M. Magliocca) km (2 mi) away. Marine mammals are Southern California. The United States and sightings have been reported by the continually exposed to many sources of stock abundance is estimated at 238,000 California Department of sound. For example, lightning, rain, sea lions (NMFS, 2007). This stock is Transportation. The closest sightings to sub-sea earthquakes, and animals are

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natural sound sources throughout the sound ends. Few data on sound levels Vibratory and impact pile driving may marine environment. Marine mammals and durations necessary to elicit mild result in anticipated hydroacoustic produce sounds in various contexts and TTS have been obtained for marine levels between 165 and 190 dB root use sound for various biological mammals. Southall et al. (2007) mean square. Southall et al. (2007) functions including, but not limited to, considers a 6 dB TTS (i.e., baseline reviewed relevant data from studies (1) Social interactions; (2) foraging; (3) thresholds are elevated by 6 dB) involving pinnipeds exposed to pulse orientation; and (4) predator detection. sufficient to be recognized as an sounds and concluded that exposures to Interference with producing or receiving unequivocal deviation and thus a 150 to 180 dB generally have limited these sounds may result in adverse sufficient definition of TTS-onset. potential to induce avoidance behavior. impacts. Audible distance or received Because it is non-injurious, NMFS No known data exist for sound levels levels will depend on the sound source, considers TTS as Level B harassment resulting from the type of vibratory ambient noise, and the sensitivity of the that is mediated by physiological effects hammer and pile sizes that would be receptor (Richardson et al., 1995). on the auditory system; however, NMFS used at the proposed project site; Marine mammal reactions to sound may does not consider onset TTS to be the however, measured sound levels for the depend on sound frequency, ambient lowest level at which Level B ‘‘King Kong’’ vibratory hammer used in sound, what the animal is doing, and harassment may occur. Richmond, California ranged between the animal’s distance from the sound Southall et al. (2007) summarizes 163 and 180 dB RMS (Illingworth and source (Southall et al., 2007). underwater pinniped data from Kastak Rodkin, 2007). Sound levels at the et al. (2005), indicating that a tested proposed project site are expected to be Hearing Impairment harbor seal showed a TTS of around 6 lower because the vibratory hammer Marine mammals may experience dB when exposed to a non-pulse noise being used has an expected sound level temporary or permanent hearing at SPL 152 dB re: 1 mPa for 25 minutes. of 165 dB for 24-in piles and 175 dB for impairment when exposed to loud In contrast, a tested sea lion exhibited 36-in piles. In addition, San Francisco sounds. Hearing impairment is TTS-onset at 174 dB re: 1 mPa under the Bay is highly industrialized and classified by temporary threshold shift same conditions as the harbor seal. Data masking of the pile driver by other (TTS) and permanent threshold shift from a single study on underwater vessels and anthropogenic noise within (PTS). There are no empirical data for pulses found no signs of TTS-onset in the action area may, especially in the when PTS first occurs in marine sea lions at exposures up to 183 dB re: nearby shipping channel, make mammals; therefore, it must be 1 mPa (peak-to-peak) (Finneran et al., construction sounds difficult to hear at estimated from when TTS first occurs 2003). There is no information on greater distances. Underwater ambient and from the rate of TTS growth with species-specific TTS for harbor noise levels along the San Francisco increasing exposure levels. PTS is likely porpoises or gray whales. waterfront may be around 133 dB RMS, if the animal’s hearing threshold is based on measurements from the nearby Behavioral Effects reduced by ≥40 dB of TTS. PTS is Oakland Outer Harbor (Caltrans, 2009). considered auditory injury (Southall et There are limited data available on Seals would likely also exhibit tolerance al., 2007) and occurs in a specific the behavioral effects of non-pulse noise or habituation (Richardson et al., 1999) frequency range and amount. Irreparable (for example, vibratory pile driving) on due to the amount of anthropogenic damage to the inner or outer cochlear pinnipeds while underwater; however, noise within the proposed project area hair cells may cause PTS; however, field and captive studies to date and San Francisco Bay as a whole. other mechanisms are also involved, collectively suggest that pinnipeds do No impacts to marine mammal such as exceeding the elastic limits of not react strongly to exposures between reproduction are anticipated because certain tissues and membranes in the 90 and 140 dB re: 1 microPa; no data there are no known pinniped haul-outs middle and inner ears and resultant exist from exposures at higher levels. or rookeries within the proposed project changes in the chemical composition of Jacobs and Terhune (2002) observed area and San Francisco Bay is not a the inner ear fluids (Southall et al., wild harbor seal reactions to high- known breeding ground for cetaceans. 2007). Due to proposed mitigation frequency acoustic harassment devices Marine mammals may avoid the area measures and source levels in the around nine sites. Seals came within around the hammer, thereby reducing proposed project area, NMFS does not 44 m of the active acoustic harassment their exposure to elevated sound levels. expect marine mammals to be exposed devices and failed to demonstrate any NMFS expects any impacts to marine to PTS levels. behavioral response when received mammal behavior to be temporary, SPLs were estimated at 120–130 dB. In Level B harassment (for example, Temporary Threshold Shift (TTS) a captive study (Kastelein, 2006), avoidance or alteration of behavior). The TTS is the mildest form of hearing scientists subjected a group of seals to Port conservatively assumes that five impairment that can occur during non-pulse sounds between 8 and 16 24-in concrete piles would be installed exposure to a loud sound (Kryter, 1985). kHz. Exposures between 80 and 107 dB per day, three 24-in steel piles would be While experiencing TTS, the hearing did not induce strong behavioral installed per day, and four 36-in steel threshold rises and a sound must be responses; however, a single observation piles would be installed per day. louder in order to be heard. TTS can last from 100 to 110 dB indicated an Considering that only one pile type is from minutes or hours to days, occurs avoidance response. The seals returned expected to be installed on any given in specific frequency ranges (i.e., an to baseline conditions shortly following day, the maximum number of pile animal might only have a temporary exposure. Southall et al. (2007) notes driving days is expected to be 69 over loss of hearing sensitivity between the contextual differences between these the eight-month period. Marine frequencies of 1 and 10 kHz), and can two studies; the captive animals were mammal injury or mortality is not occur to varying degrees (e.g., an not reinforced with food for remaining likely, as the 180 dB isopleth (NMFS’ animal’s hearing sensitivity might be in the noise fields, whereas free-ranging Level A harassment threshold for reduced by 6 dB or by 30 dB). For sound animals may have been more tolerant of cetaceans) for the impact hammer is exposures at or somewhat above the exposures because of motivation to 42 m (138 ft) and would be TTS-onset threshold, hearing sensitivity return to a safe location or approach continuously monitored for marine recovers rapidly after exposure to the enclosures holding prey items. mammals. Impact pile driving would

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cease if a marine mammal is observed Establishment of an Exclusion Zone period, then two subsequent three-strike nearing or within a Level A harassment During all in-water impact pile sets. Soft-start procedures would be exclusion zone (50 m [164 ft]). For these driving, the Port would establish a conducted prior to driving each pile if reasons, NMFS expects any changes to preliminary marine mammal exclusion hammering ceases for more than 30 marine mammal behavior to be zone with 50 m (164 ft) radius around minutes. temporary. each pile to avoid exposure to sounds at Monitoring for Herring Anticipated Effects on Habitat or above 180 dB. This includes an 8-m (26-ft) buffer zone to further avoid Monitoring for herring spawning No permanent detrimental impacts to marine mammals from entering the 180 events would be conducted on a daily marine mammal habitat are expected to dB isopleth. The exclusion zone would basis between December 1 and February result from the proposed project. Pile be monitored during all impact pile (although pile driving is expected to be driving (resulting in temporary driving to ensure that no marine complete in December). If a herring ensonification) may impact prey species mammals enter the 50-m (164-ft) radius. spawning event is observed, in-water and marine mammals by resulting in The purpose of this area is to prevent work would cease for a period of two avoidance or abandonment of the area; Level A harassment (injury) of any weeks following the spawning event (a however, these impacts are expected to marine mammal species. Once measure designed to reduce impacts to be local and temporary. Site conditions underwater sound measurements are fish). Pinniped presence can be sporadic are expected to be improved or taken, the exclusion zone may be and unpredictable during herring runs substantively unchanged from existing adjusted accordingly so that marine in San Francisco Bay; therefore, this conditions. The proposed project would mammals are not exposed to Level A mitigation measure would minimize result in the net removal of harassment sound pressure levels. A impacts to marine mammals. approximately 3,550 ft2 of pile fill and safety zone for vibratory pile driving or NMFS has carefully evaluated the clearing of 47,000 ft2 of timber debris installation of concrete piles is applicant’s proposed mitigation that has collapsed at the end of Pier 36. unnecessary as source levels would not measures and considered a range of This debris includes 350–400 creosote- exceed the Level A harassment other measures in the context of treated wood pilings. Creosote can leach threshold. ensuring that NMFS prescribes the out of the wood over time, potentially means of effecting the least practicable causing long-term impacts to marine Pile Driving Shut Down and Delay adverse impact on the affected marine species. The proposed project would Procedures mammal species and stocks and their also result in a net reduction of 47,000 If a protected species observer sees a habitat. Our evaluation of potential ft2 of shadow fill (shading over the marine mammal within or approaching measures included consideration of the water). This increase of unshaded water the exclusion zone prior to start of following factors in relation to one is expected to be beneficial to benthic impact pile driving, the observer would another: (1) The manner in which, and invertebrates, fish, and marine notify the on-site resident engineer (or the degree to which, the successful mammals through restoration of other authorized individual) who would implementation of the measure is ambient light conditions and increased then be required to delay pile driving expected to minimize adverse impacts biological productivity. Overall, the until the marine mammal has moved to marine mammals; (2) the proven or proposed activity is not expected to outside of the exclusion zone or if the likely efficacy of the specific measure to cause significant or long-term adverse animal has not been resighted within 15 minimize adverse impacts as planned; impacts on marine mammal habitat. minutes for pinnipeds or 30 minutes for and (3) the practicability of the measure cetaceans. If a marine mammal is for applicant implementation, including Proposed Mitigation sighted within or on a path toward the consideration of personnel safety, and practicality of implementation. In order to issue an IHA under section exclusion zone during pile driving, pile 101(a)(5)(D) of the MMPA, NMFS must driving should cease until that animal Based on our evaluation of the set forth the permissible methods of has cleared and is on a path away from applicant’s proposed measures, NMFS taking pursuant to such activity, and the exclusion zone or 15/30 minutes has preliminarily determined that the other means of effecting the least (pinnipeds/cetaceans) has lapsed since proposed mitigation measures provide practicable adverse impact on such the last sighting. the means of effecting the least practicable adverse impacts on marine species or stock and its habitat, paying Soft-Start Procedures particular attention to rookeries, mating mammals species or stocks and their grounds, and areas of similar A ‘‘soft-start’’ technique would be habitat, paying particular attention to significance, and on the availability of used at the beginning of each pile rookeries, mating grounds, and areas of such species or stock for taking for installation to allow any marine similar significance. mammal that may be in the immediate certain subsistence uses. Proposed Monitoring and Reporting area to leave before the pile hammer The Port proposed the following reaches full energy. For vibratory pile In order to issue an IHA for an mitigation measures to minimize driving, the soft-start procedure requires activity, section 101(a)(5)(D) of the adverse impacts to marine mammals: contractors to initiate noise from the MMPA states that NMFS must set forth Sound Attenuation Device vibratory hammer for 15 seconds at 40– ‘‘requirements pertaining to the 60 percent reduced energy followed by monitoring and reporting of such When using impact pile driving to a 1-minute waiting period. The taking.’’ The MMPA implementing install steel piles in water depths greater procedure would be repeated two regulations at 50 CFR 216.104 (a)(13) than two feet, an unconfined bubble additional times before full energy may indicate that requests for IHAs must curtain would be used to reduce be achieved. For impact hammering, include the suggested means of hydroacoustic sound levels to avoid the contractors would be required to accomplishing the necessary monitoring potential for injury. The bubble curtain provide an initial set of three strikes and reporting that will result in is expected to reduce sound levels by at from the impact hammer at 40 percent increased knowledge of the species and least 5 dB. energy, followed by a 1-minute waiting of the level of taking or impacts on

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populations of marine mammals that are mammals (for example, high-quality the area or temporarily alter their expected to be present. binoculars, spotting scopes, compass, behavior at time of exposure. Hydroacoustic monitoring would be and range-finder) in order to determine Current NMFS practice regarding performed at the initial installation of if animals have entered into the exposure of marine mammals to each pile type (24-in concrete, 24-in exclusion zone or Level B harassment anthropogenic noise is that in order to steel, and 36-in steel) to ensure that the isopleth and to record species, avoid the potential for injury (PTS), harassment isopleths are not extending behaviors, and responses to pile driving. cetaceans and pinnipeds should not be past the calculated distances described If hydroacoustic monitoring indicates exposed to impulsive sounds of 180 and in this notice. The Port must designate that threshold isopleths are greater than 190 dB or above, respectively. This level at least one biologically-trained, on-site originally calculated, the Port would is considered precautionary as it is individual, approved in advance by contact NMFS within 48 hours and likely that more intense sounds would NMFS, to monitor the Level B make the necessary adjustments. be required before injury would actually harassment zone area for marine Likewise, if threshold isopleths are occur (Southall et al., 2007). Potential mammals 30 minutes before, during, actually less than originally calculated, for behavioral harassment (Level B) is and 30 minutes after all impact pile adjustments may be made. Protected considered to have occurred when driving activities and call for shut down species observers would be required to marine mammals are exposed to sounds if any marine mammal is observed submit a report to NMFS within 90 days at or above 160 dB for impulse sounds within or approaching the designated of completion of pile driving. The report (such as impact pile driving) and 120 dB exclusion zone (preliminarily set at would include data from marine for non-pulse noise (such as vibratory 50 m [164 ft]). In addition, at least two mammal sightings (such as species, pile driving). These levels are also NMFS-approved protected species group size, and behavior), any observed considered precautionary. observers would conduct behavioral reactions to construction, distance to Distances to NMFS’ harassment monitoring out to 1,900 m during all operating pile hammer, and thresholds were calculated based on the vibratory pile driving for the first two construction activities occurring at time sound levels at each source and the weeks of activity to validate take of sighting. expected attenuation rate of sound estimates and evaluate the behavioral Estimated Take by Incidental (Table 3). Two sets of threshold impacts piles driving has on marine Harassment distances were identified: one for mammals out to the Level B harassment concrete piles and one for steel piles. Except with respect to certain isopleth. If there are no observations of The threshold distances listed for the activities not pertinent here, the MMPA marine mammals within the Level B steel piles are those expected from the defines ‘‘harassment’’ as: harassment isopleth during this time, 36-in steel pile driving activities, as they behavioral monitoring may be reduced any act of pursuit, torment, or annoyance would also encompass the isopleths for to a level agreed upon by the applicant which (i) Has the potential to injure a marine the 24-in steel piles. The 42-m (268-ft) and NMFS. Note that for impact mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential distance to the Level A harassment hammering, the initial Level B (160 dB) to disturb a marine mammal or marine threshold provides protected species harassment isopleths are 42 m (138 ft) mammal stock in the wild by causing observers plenty of time and adequate for the concrete piles and 750 m (2,460 disruption of behavioral patterns, including, visibility to prevent marine mammals ft) for the steel piles. For vibratory but not limited to, migration, breathing, from entering the area during impact hammering, the initial estimated nursing, breeding, feeding, or sheltering pile driving. This would prevent marine distance is 1,900 m (6,233 ft). If light [Level B harassment]. mammals from being exposed to sound condition is low (such as early morning Based on the application and levels that reach the Level A harassment or late afternoon), protected species subsequent analysis, the impact of the threshold. In-air sound from pile driving observers would use infrared scopes to described pile driving operations may also has the potential to affect marine conduct their observations. result in, at most, short-term mammals. However, in-air sound is not Protected species observers would be modification of behavior by small a concern here because there are no provided with the equipment necessary numbers of marine mammals within the pinniped haul-outs near the project to effectively monitor for marine action area. Marine mammals may avoid area.

TABLE 3—CALCULATED UNDERWATER DISTANCES TO NMFS’ MARINE MAMMAL HARASSMENT THRESHOLD LEVELS

Distance from source Distance from source Threshold (24-in concrete piles) (36-in steel piles)

120 dB RMS (Level B—continuous) ...... n/a ...... 1,900 m (6,233 ft). 160 dB RMS (Level B—impulse) ...... 42 m (138 ft) ...... 750 m (2,460 ft). 180/190 dB RMS (Level A) ...... n/a ...... 42 m (138 ft).

The estimated number of marine mammal monitoring reports were used in an area of high commercial boat mammals potentially taken is based on to estimate the number of pinnipeds activity and no adjacent haul-outs. marine mammal monitoring reports near the Pier 36/Brannan Street Wharf Therefore, the Caltrans data likely prepared by the California Department area as both sites are relatively close in overestimate marine mammal of Transportation during similar distance and are similar in bathymetric abundance for the Pier 36/Brannan activities in San Francisco Bay and on features. However, monitoring Street Wharf location. Based on discussions with the NMFS Southwest conducted for the San Francisco- consultation with the NMFS Southwest Regional Office. The California Oakland Bay Bridge project was in close Regional Office, review of the Department of Transportation’s San proximity to a haul-out area, while the monitoring reports described above, and Francisco-Oakland Bay Bridge marine Pier 36/Brannan Street Wharf location is the estimated number of pile driving

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days, the Port requested authorization (such as vessels) may mask construction DEPARTMENT OF DEFENSE for the incidental take of 138 harbor related sounds. There is no anticipated seals (an average of 2 per day), 69 effect on annual rates of recruitment or Office of the Secretary California sea lions (an average of 1 per survival of affected marine mammals. [Docket ID DOD–2010–OS–0034] day), 69 harbor porpoises (an average of Based on the analysis contained 1 per day), and 2 gray whales (2 herein of the likely effects of the Defense Transportation Regulation, annually). Based on further consultation Part IV with the NMFS Southwest Regional specified activity on marine mammals Office and previous authorizations in and their habitat, and taking into AGENCY: United States Transportation this region, NMFS is proposing to consideration the implementation of the Command (USTRANSCOM), authorize the take of five gray whales mitigation and monitoring measures, Department of Defense (DoD). annually, rather than two. These NMFS preliminarily determines that the ACTION: Notice of announcement. numbers indicate the maximum number Port’s proposed pile driving activities of animals expected to occur within the will result in the incidental take of SUMMARY: Reference Federal Register largest Level B harassment isopleth small numbers of marine mammals, by Notice (FRN), Docket ID: DOD–2010– (1,900 m). Level B harassment only, and that the OS–0034, published April 1, 2010 (75 total taking from will have a negligible FR 16445–16446) and subsequently Negligible Impact and Small Numbers impact on the affected species or stocks. revised April 5, 2011 (76 FR 18737). We Analysis and Determination have taken industry recommendations NMFS has defined ‘‘negligible Impact on Availability of Affected into consideration regarding the impact’’ in 50 CFR 216.103 as ‘‘* * *an Species for Taking for Subsistence Uses incorporation of local moves into the impact resulting from the specified intrastate/interstate program. The activity that cannot be reasonably There are no relevant subsistence uses Surface Deployment and Distribution expected to, and is not reasonably likely of marine mammals implicated by this Command (SDDC) is conducting a to, adversely affect the species or stock action. Direct Procurement Method (DPM) through effects on annual rates of Endangered Species Act (ESA) feasibility study to determine how local recruitment or survival.’’ In making a moves could be better managed to serve negligible impact determination, NMFS No marine mammal species listed our DoD customers. Industry will be considers a number of factors which under the ESA are anticipated to occur notified of any subsequent DoD include, but are not limited to, number within the action area. Therefore, decisions associated with the future of of anticipated injuries or mortalities section 7 consultation under the ESA is local moves. We thank our industry (none of which would be authorized not required. partners for their review and important here), number, nature, intensity, and suggestions to improve the Defense duration of Level B harassment, and the National Environmental Policy Act Personal Property Program (DP3). context in which takes occur. (NEPA) FOR FURTHER INFORMATION CONTACT: Mr. As described above, marine mammals Jim Teague, United States would not be exposed to activities or In compliance with the National Environmental Policy Act of 1969 (42 Transportation Command, TCJ5/4–PI, sound levels which would result in 508 Scott Drive, Scott Air Force Base, IL U.S.C. 4321 et seq.), as implemented by injury (PTS), serious injury, or 62225–5357; (618) 220–4803. mortality. Pile driving would occur in the regulations published by the shallow coastal waters of the Columbia Council on Environmental Quality (40 Dated: October 21, 2011. River. The action area (waters around CFR parts 1500–1508), and NOAA Aaron Siegel, Terminal 5) is not considered significant Administrative Order 216–6, NMFS is Alternate OSD Federal Register Liaison habitat for pinnipeds. The closest haul- preparing an Environmental Assessment Officer, Department of Defense. out is 3.2 km (2 mi) away, which is well (EA) to consider the direct, indirect, and [FR Doc. 2011–27654 Filed 10–25–11; 8:45 am] outside the project area’s largest cumulative effects to marine mammals BILLING CODE 5001–06–P harassment zone. Marine mammals and other applicable environmental approaching the action area would resources resulting from issuance of a DEPARTMENT OF DEFENSE likely be traveling or opportunistically one-year IHA and the potential issuance foraging. The amount of take the Port of future authorizations for incidental Department of the Army has requested, and NMFS proposes to harassment for the ongoing project. authorize, is considered small (less than Upon completion, this EA will be Withdrawal of the Notice of Intent To one percent) relative to the estimated Prepare a Programmatic populations of 34,233 Pacific harbor available on the NMFS Web site listed Environmental Impact Statement for seals, 238,000 California sea lions, 9,189 in the beginning of this document (see the Stationing and Operation of Joint harbor porpoises, and 18,813 gray ADDRESSES). High Speed Vessels whales. Marine mammals may be Dated: October 19, 2011. temporarily impacted by pile driving Helen M. Golde, AGENCY: Department of the Army, DoD. noise. However, marine mammals are Deputy Director, Office of Protected ACTION: Notice of intent; withdrawal. expected to avoid the area, thereby Resources, National Marine Fisheries Service. reducing exposure and impacts. Pile SUMMARY: On February 5, 2010, the [FR Doc. 2011–27739 Filed 10–25–11; 8:45 am] driving activities are expected to occur Department of the Army announced in for approximately 69 days. Furthermore, BILLING CODE 3510–22–P the Federal Register (75 FR 6003) its San Francisco Bay is a highly intention to prepare a Programmatic industrialized area, so animals are likely Environmental Impact Statement (PEIS) tolerant or habituated to anthropogenic for the stationing and operation of up to disturbance, including low level 12 Joint High Speed Vessels (JHSVs). In vibratory pile driving operations, and May 2011, the Army’s JHSVs were noise from other anthropogenic sources transferred to the U.S. Navy; therefore,

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the Army is withdrawing the notice of appropriate historical context and to 216, Types of Contracts, and related intent. provide any necessary background clauses at DFARS 252.216–7000, ADDRESSES: Questions or comments information. Economic Price Adjustment—Basic regarding the withdrawal of this action Individuals submitting a written Steel, Aluminum, Brass, Bronze, or should be forwarded to: Public Affairs statement must submit their statement Copper Mill Products; DFARS 252.216– Office, U.S. Army Environmental to the Designated Federal Officer at the 7001, Economic Price Adjustment— Command, Bldg 2264, Room 209–006, following address: Attn: Designated Nonstandard Steel Items, and DFARS 2450 Connell Road, Fort Sam Houston, Federal Officer, Dept. of Academic 252.216–7003, Economic Price TX 78234–7664. Affairs, 122 Forbes Avenue, Carlisle, PA Adjustment—Wage Rates or Material FOR FURTHER INFORMATION CONTACT: 17013. At any point, however, if a Prices Controlled by a Foreign Public Affairs Office at (210) 466–0677 written statement is not received at least Government; OMB Control Number or e-mail IMCOM- 10 calendar days prior to the meeting, 0704–0259. [email protected]. which is the subject of this notice, then Type of Request: Extension. mil. it may not be provided to or considered Number of Respondents: 2,247. by the U.S. Army War College Responses per Respondent: Brenda S. Bowen, Subcommittee until its next open Approximately 2. Army Federal Register Liaison Officer. meeting. Annual Responses: 4,488. [FR Doc. 2011–27693 Filed 10–25–11; 8:45 am] The Designated Federal Officer will Average Burden per Response: Approximately 4 hours. BILLING CODE 3710–08–P review all timely submissions with the U.S. Army War College Subcommittee Annual Burden Hours: 17,952. Chairperson, and ensure they are Needs and Uses: The clauses at DEPARTMENT OF DEFENSE provided to members of the U.S. Army DFARS 252.216–7000, 252.216–7001, War College Subcommittee before the and 252.216–7003 require contractors Department of the Army meeting that is the subject of this notice. with fixed-price economic price After reviewing the written comments, adjustment contracts to submit Army Educational Advisory Committee the Chairperson and the Designated information to the contracting officer regarding changes in established AGENCY: Department of the Army, DoD. Federal Officer may choose to invite the material prices or wage rates. The ACTION: Notice of open meeting. submitter of the comments to orally present their issue during an open contracting officer uses this information SUMMARY: Pursuant to the Federal portion of this meeting or at a future to make appropriate adjustments to Advisory Committee Act of 1972 (5 meeting. contract prices. U.S.C., Appendix, as amended), the The Designated Federal Officer, in Affected Public: Businesses or other Sunshine in the Government Act of consultation with the U.S. Army War for-profit and not-for-profit institutions. 1976 (5 U.S.C. § 552b, as amended), and College Subcommittee Chairperson, Frequency: On occasion. Respondent’s Obligation: Required to 41 CFR 102–3.150, the following may, if desired, allot a specific amount obtain or maintain benefits. meeting notice is announced: of time for members of the public to OMB Desk Officer: Ms. Jasmeet Name of Committee: U.S. Army War present their issues for review and Seehra. College Subcommittee of the Army discussion by the U.S. Army War Written comments and Education Advisory Committee. College Subcommittee. recommendations on the proposed Dates of Meeting: November 15, 2011. Place of Meeting: U.S. Army War Donald Myers, information collection should be sent to College, 122 Forbes Avenue, Carlisle, Colonel, U.S. Army, Executive Secretary. Ms. Seehra at the Office of Management PA, Command Conference Room, Root [FR Doc. 2011–27695 Filed 10–25–11; 8:45 am] and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Hall, Carlisle Barracks, Pennsylvania BILLING CODE 3710–08–P 17013. Washington, DC 20503. Time of Meeting: 8:30 a.m.–12:30 p.m. You may also submit comments, Proposed Agenda: Receive various DEPARTMENT OF DEFENSE identified by docket number and title, by the following method: information briefings and updates and • dialogue with the Commandant on Defense Acquisition Regulation Federal eRulemaking Portal: http:// issues and matters related to the System www.regulations.gov. Follow the continued growth and development of instructions for submitting comments. [Docket No. DARS–2011–0068–0001] Intructions: All submissions received the United States Army War College. must include the agency name, docket FOR FURTHER INFORMATION CONTACT: To Submission for OMB Review; Comment Request number, and title for the Federal request advance approval or obtain Register document. The general policy further information, contact COL ACTION: Notice. for comments and other public Donald Myers, (717) 245–3907 or submissions from members of the public [email protected]. The Defense Acquisition Regulations is to make these submissions available SUPPLEMENTARY INFORMATION: This System has submitted to OMB for for public viewing on the internet at meeting is open to the public. Interested clearance, the following proposal for http://www.regulations.gov as they are persons may submit a written statement collection of information under the received without change, including any for consideration by the U.S. Army War provisions of the Paperwork Reduction personal identifiers or contact College Subcommittee. Written Act (44 U.S.C. chapter 35). information provided. To confirm statements should be no longer than two DATES: Consideration will be given to all receipt of your comment(s), please type-written pages and must address: comments received by November 25, check http://www.regulations.gov the issue, discussion, and a 2011. approximately two to three days after recommended course of action. Title, Associated Forms and OMB submission to verify posting (except Supporting documentation may also be Number: Defense Federal Acquisition allow 30 days for posting of comments included as needed to establish the Regulation Supplement (DFARS) Part submitted by mail).

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DoD Clearance Officer: Ms. Patricia Bldg 2, 300 Highway 361, Crane, IN additional or alternative measures of Toppings. 47522–5001, telephone 812–854–4100. student success that are comparable Written requests for copies of the Authority: 35 U.S.C. 207, 37 CFR Part 404. alternatives to the completion or information collection proposal should graduation rates of entering degree- be sent to Ms. Toppings at WHS/ESD/ Dated: October 19, 2011. seeking full-time undergraduate Information Management Division, 4800 L.M. Senay, students and that consider the mission Mark Center Drive, 2nd Floor, East Lieutenant, Office of the Judge Advocate, U.S. and role of two-year degree granting Tower, Suite 02G09, Alexandria, VA Navy, Alternate Federal Register Liaison higher education institutions. These 22350–3100. Officer. recommendations shall be provided to [FR Doc. 2011–27661 Filed 10–25–11; 8:45 am] the Secretary no later than April 2012. Mary Overstreet, BILLING CODE 3810–FF–P The agenda for the meeting will Editor, Defense Acquisition Regulations include a discussion among Committee System. members regarding the Committee’s [FR Doc. 2011–27674 Filed 10–25–11; 8:45 am] DEPARTMENT OF EDUCATION final report to the Secretary. BILLING CODE 5001–06–P Individuals interested in attending the Committee on Measures of Student meeting must register in advance Success because of limited seating. To register, DEPARTMENT OF DEFENSE AGENCY: National Center for Education please send an e-mail request to [email protected]. Individuals Department of the Navy Statistics, Institute of Education Sciences, U.S. Department of Education. who will need accommodations for a disability in order to attend the meeting Notice of Intent To Grant Partially ACTION: Notice of an Open (e.g., interpreting services, assistive Exclusive Patent License; BOLD Teleconference Meeting. Industries, Inc. listening devices, or materials in SUMMARY: This notice sets forth the alternative format) should notify John AGENCY: Department of the Navy, DoD. schedule and proposed agenda of an Fink at (202) 502–7328 no later than ACTION: Notice. upcoming meeting of the Committee on November 21, 2011. We will attempt to Measures of Student Success meet requests for accommodations after SUMMARY: The Department of the Navy (Committee). The notice also describes this date but cannot guarantee their hereby gives notice of its intent to grant the functions of the Committee. Notice availability. The meeting site is to BOLD Industries, Inc. a revocable, of this meeting is required by section accessible to individuals with nonassignable, partially exclusive 10(a)(2) of the Federal Advisory disabilities. license to practice in the United States, Committee Act (FACA) and is intended There will not be a public comment the Government-owned inventions to notify the public of their opportunity period during this meeting. described in U.S. Patent Application to attend. Opportunities for public comment are No. 20110024405 filed on August 18, DATES: November 29, 2011. available through the Committee’s Web 2009: Method of Breaching a Barrier.// Time: 11:00 a.m. to 12:30 p.m. Eastern site at http://www2.ed.gov/about/ U.S. Patent Application No. Standard Time. bdscomm/list/acmss.html. Records are 20110024403 filed on July 28, 2009: ADDRESSES: The Committee will meet by kept of all Committee proceedings and Portable Cutting Device for Breaching a teleconference. Members of the public are available for public inspection on Barrier.//U.S. Patent Application No. may attend and listen to the meeting the Web site and at the National Center 20110036999 filed on August 28, 2009: proceedings in person at 1990 K Street, for Education Statistics, 1990 K Street, Countermeasure Method for a Mobile NW., Washington, DC 20006, 8th Floor NW., Washington, DC 20006 from the Tracking Device.//U.S. Patent Conference Center. hours of 9:00 a.m. to 5:00 p.m. E.S.T. Application No. 20110036998 filed on Electronic Access to This Document: FOR FURTHER INFORMATION CONTACT: August 14, 2009: Countermeasure You may view this document, as well as Device for a Mobile Tracking Device.// Archie Cubarrubia, Designated Federal all other documents of this Department U.S. Patent Application No. Official, Committee on Measures of published in the Federal Register, in 20110113949 filed on May 12, 2010: Student Success, U.S. Department of text or Adobe Portable Document Modulation Device for a Mobile Education, 1990 K Street, NW., Format (PDF) on the Internet at the Tracking Device.//U.S. Patent Washington, DC 20006. E-mail: following site: http://www.ed.gov/news/ Application Serial No. 12/778,643 filed [email protected]. Telephone: fed-register/index.html. To use PDF you on May 12, 2010: High Powered Laser (202) 502–7601. must have Adobe Acrobat Reader, System.//U.S. Patent Application Serial SUPPLEMENTARY INFORMATION: The which is available free at this site. If you No. 12/778,892 filed on May 12, 2010: Committee is established to advise the have questions about using PDF, call the Scene Illuminator. Secretary of Education in assisting two- U.S. Government Printing Office (GPO), year degree-granting institutions of DATES: Anyone wishing to object to the toll free at 1–866–512–1830; or in the higher education in meeting the grant of this license must file written Washington, DC, area at (202) 512–0000. completion or graduation rate disclosure objections along with supporting requirements outlined in section 485 of Note: The official version of this document evidence, if any, not later than is the document published in the Federal the Higher Education Act of 1965, as November 10, 2011. Register. Free Internet access to the official amended. Specifically, the Committee edition of the Federal Register and the Code ADDRESSES: Written objections are to be shall develop recommendations of Federal Regulations is available on GPO filed with the Naval Surface Warfare regarding the accurate calculation and Access at: http://www.gpoaccess.gov/nara/ Center, Crane Div, Code OOL, Bldg 2, reporting of completion or graduation index.html. 300 Highway 361, Crane, IN 47522– rates of entering certificate/degree- 5001. seeking, full-time, undergraduate John Q. Easton, FOR FURTHER INFORMATION CONTACT: Mr. students by two-year degree granting Director, Institute of Education Sciences. Christopher Monsey, Naval Surface institutions of higher education. The [FR Doc. 2011–27655 Filed 10–25–11; 8:45 am] Warfare Center, Crane Div, Code OOL, Committee may also recommend BILLING CODE 4000–01–P

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DEPARTMENT OF ENERGY consensus. Rather, this meeting is an Issued in Washington, DC, on October 19, opportunity for the peer reviewers to 2011. Office of Energy Efficiency and gain an individual understanding of the Jose Zayas, Renewable Energy research and projects. To most Wind and Water Power Program Manager, effectively use the limited time, please Office of Energy Efficiency and Renewable Wind and Water Power Program refrain from passing judgment on Energy. AGENCY: Office of Energy Efficiency and another participant’s recommendations [FR Doc. 2011–27682 Filed 10–25–11; 8:45 am] Renewable Energy, Department of or advice, and instead, concentrate on BILLING CODE 6450–01–P Energy. your individual experiences. Based ACTION: Notice of public meeting. upon the review of individual projects DEPARTMENT OF ENERGY and the overall Water Power Program SUMMARY: All programs with the U.S. research portfolio, a report will be Federal Energy Regulatory Department of Energy’s (DOE) Office of compiled by DOE, which will be Commission Energy Efficiency and Renewable publically posted on the DOE Wind and Energy (EERE) are required to undertake Water Power Program website. Combined Notice of Filings #1 rigorous, objective peer review of their funded projects in order to ensure and Public Participation: Principal Take notice that the Commission enhance the management, relevance, Investigators, expert reviewers, Water received the following electric corporate effectiveness, and productivity of those Power Program staff, and contract filings: projects. The 2011 Wind and Water support staff will be in attendance. The Docket Numbers: EC11–60–001. Power Program, Water Power Peer event is open to the public based on Applicants: Duke Energy Corporation. Review Meeting will review the space availability. Limited time for Description: Compliance Filing of Program’s portfolio of conventional questions and answers are included for Duke Energy Corporation and Progress hydropower and marine and each project, however, oral questions Energy, Inc. hydrokinetic research and development from expert reviewers will be given Filed Date: 10/17/2011. and projects. The 2011 Water Power priority. Additionally, questions may be Accession Number: 20111017–5129. Peer Review Meeting will be held submitted in writing during the Comment Date: 5 p.m. Eastern Time November 1 through November 3, 2011 meeting. on Wednesday, November 16, 2011. in Alexandria, VA. Pre-Registration: To pre-register, Take notice that the Commission DATES: DOE will hold a public meeting please contact Ms. Stacey Young via e- received the following exempt on Tuesday, November 1, 2011 from mail at [email protected] or by wholesale generator filings: 12:45 p.m. to 5:30 p.m.; Wednesday, telephone at 240–223–5578. Participants Docket Numbers: EG12–3–000. November 2, 2011 from 8:30 a.m. to 4:35 interested in attending should indicate Applicants: South Chestnut LLC. p.m.; and Thursday, November 3, 2011, the category or categories you would Description: Self-Certification of EWG from 8:30 a.m. to 5:30 p.m. in like to observe, your name, company Status of South Chestnut LLC. Alexandria, VA. name or organization (if applicable), Filed Date: 10/17/2011. Accession Number: 20111017–5042. ADDRESSES: The public meeting will be telephone number, and email no later Comment Date: 5 p.m. Eastern Time held at the Hilton Alexandria Mark than the close of business on Monday, Center, 500 Seminary Road, Alexandria, on Monday, November 07, 2011. October 28 2011. All Principal VA 22311. Investigators required to present at the Take notice that the Commission received the following electric rate FOR FURTHER INFORMATION CONTACT: Mr. meeting must pre-register. Additionally, filings: Hoyt Battey, Office of Energy Efficiency all expert reviewers, Water Power and Renewable Energy, U.S. Department Program staff, and support contract staff Docket Numbers: ER11–4151–002. of Energy, 1000 Independence Avenue, must pre-register. Applicants: California Independent SW., Washington, DC 20585. Telephone: System Operator Corporation. (202) 586–0143. E-mail: Agenda: Presentations from industry, Description: California Independent [email protected]. academia, and National Laboratories System Operator Corporation submits will be time limited. Depending on the SUPPLEMENTARY INFORMATION: The tariff filing per 35: 2011–10–17 CAISO type of project, Principal Investigators purpose of this meeting is to: NRS–RA Compliance Filing to be will have anywhere from 5 to 60 • Review the strategy and goals of the effective 1/1/2012. Water Power Program; and minutes to present. Time is also allotted Filed Date: 10/17/2011. • Review the progress and for question and answer sessions Accession Number: 20111017–5116. accomplishments of the Program’s between the Principal Investigators and Comment Date: 5 p.m. Eastern Time conventional hydropower, and marine the expert reviewers. on Monday, November 07, 2011. and hydrokinetics research and projects Information on Services for Docket Numbers: ER12–94–000. funded in FY2009 through FY2011 Individuals with Disabilities: Applicants: Golden Spread Electric The purpose of this meeting is for the Individuals requiring special Cooperative, Inc. review of the Program’s conventional accommodations at the meeting, please Description: Golden Spread Electric hydropower, and marine and contact Ms. Young no later than the Cooperative, Inc. submits tariff filing per hydrokinetics research and projects close of business on October 28, 2011. 35.13(a)(2)(iii: Revised Wholesale Power funded in FY2009 through FY2011. Contracts Filing to be effective 12/16/ Minutes: The minutes of the meeting Participants should limit information 2011. and comments to those based on will be available for public review and Filed Date: 10/17/2011. personal experience, individual advice, copying at the DOE EERE Online Accession Number: 20111017–5032. information, or facts regarding this Publication and Product Library at: Comment Date: 5 p.m. Eastern Time topic. It is not the object of this session http://www1.eere.energy.gov/library/ on Monday, November 07, 2011. to obtain any group position or default.aspx. Docket Numbers: ER12–95–000.

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Applicants: Midwest Independent Description: Dominion Energy may seek judicial review of those Transmission System Operator, Inc. Brayton Point, LLC submits tariff filing portions of the petition that EPA denied Description: Midwest Independent per 35: Compliance Filing—MBR Tariff in the United States Court of Appeals Transmission System Operator, Inc. Order of Affiliate Restrictions to be for the appropriate circuit. Any petition submits tariff filing per 35.13(a)(2)(iii: effective 11/21/2011. for review shall be filed within 60 days Amended Duke-Vectren (SA 1391) to be Filed Date: 10/17/2011. from the date this notice appears in the effective 10/18/2011. Accession Number: 20111017–5115. Federal Register, pursuant to section Filed Date: 10/17/2011. Comment Date: 5 p.m. Eastern Time 307 of the Act. Accession Number: 20111017–5033. on Monday, November 07, 2011. ADDRESSES: You may review copies of Comment Date: 5 p.m. Eastern Time The filings are accessible in the the Final Order, the Petition, and other on Monday, November 07, 2011. Commission’s eLibrary system by supporting information at the EPA Docket Numbers: ER12–96–000. clicking on the links or querying the Region 8 Office, 1595 Wynkoop Street, Applicants: South Chestnut LLC. docket number. Denver, Colorado 80202–1129. EPA Description: South Chestnut LLC Any person desiring to intervene or requests that if at all possible, you submits tariff filing per 35.12: Market- protest in any of the above proceedings contact the individual listed in the FOR Based Rate Application to be effective must file in accordance with Rules 211 FURTHER INFORMATION CONTACT section to 10/18/2011. and 214 of the Commission’s view the copies of the Final Order, the Filed Date: 10/17/2011. Regulations (18 CFR 385.211 and Petition, and other supporting Accession Number: 20111017–5041. 385.214) on or before 5 p.m. Eastern information. You may view the hard Comment Date: 5 p.m. Eastern Time time on the specified comment date. copies Monday through Friday, 8 a.m. to on Monday, November 07, 2011. Protests may be considered, but 4 p.m., excluding Federal holidays. If intervention is necessary to become a you wish to examine these documents, Docket Numbers: ER12–97–000. party to the proceeding. you should make an appointment at Applicants: Fairchild Energy, LLC. eFiling is encouraged. More detailed least 24 hours in advance. Additionally, Description: Fairchild Energy, LLC information relating to filing the Final Order for Public Service submits tariff filing per 35: Compliance requirements, interventions, protests, Company of Colorado—Valmont Power Filing to be effective 9/23/2011. service, and qualifying facilities filings Station is available electronically at: Filed Date: 10/17/2011. can be found at: http://www.ferc.gov/ http://www.epa.gov/region07/air/title5/ Accession Number: 20111017–5067. docs-filing/efiling/filing-req.pdf. For petitiondb/petitions/ Comment Date: 5 p.m. Eastern Time other information, call (866) 208–3676 xcel_valmont_response2011.pdf. on Monday, November 07, 2011. (toll free). For TTY, call (202) 502–8659. FOR FURTHER INFORMATION CONTACT: Docket Numbers: ER12–98–000; ER12–99–000. Dated: October 18, 2011. Donald Law, Air Program (8P–AR), EPA Region 8, 1595 Wynkoop Street, Denver, Applicants: 330 Fund I, L.P., 330 Nathaniel J. Davis, Sr., Colorado 80202–1129. Phone: (303) Investment Management, LLC. Deputy Secretary. 312–7015. E-mail: [email protected]. Description: 330 Investment [FR Doc. 2011–27623 Filed 10–25–11; 8:45 am] SUPPLEMENTARY INFORMATION: Management, LLC submits notification BILLING CODE 6717–01–P The Act of withdrawal of market based rate affords EPA a 45-day period to review authority. and object to, as appropriate, a title V Filed Date: 10/17/2011. ENVIRONMENTAL PROTECTION operating permit proposed by State Accession Number: 20111017–0201. AGENCY permitting authorities. Section 505(b)(2) Comment Date: 5 p.m. Eastern Time of the Act authorizes any person to [FRL–9483–3] on Monday, November 07, 2011. petition the EPA Administrator, within 60 days after the expiration of this Docket Numbers: ER12–100–000. Clean Air Act Operating Permit review period, to object to a title V Applicants: Black Oak Capital, LLC. Program; Petition for Objection to operating permit if EPA has not done so. Description: Black Oak Capital, LLC State Operating Permit for Public Petitions must be based only on submits tariff filing per 35.12: Normal Service Company of Colorado dba Xcel objections to the permit that were raised rate schedules to be effective 10/17/ Energy—Valmont Power Station with reasonable specificity during the 2011. AGENCY: Environmental Protection public comment period provided by the Filed Date: 10/17/2011. State, unless the petitioner demonstrates Accession Number: 20111017–5087. Agency (EPA). ACTION: Notice of final action. that it was impracticable to raise these Comment Date: 5 p.m. Eastern Time issues during the comment period or the on Monday, November 07, 2011. SUMMARY: This document announces grounds for the issues arose after this Docket Numbers: ER12–101–000. that the EPA Administrator has period. EPA received a petition from Applicants: Midwest Independent responded to a citizen petition asking WildEarth Guardians dated March 18, Transmission System Operator, Inc. EPA to object to an operating permit 2010, requesting that EPA object to the Description: Midwest Independent issued by the Colorado Department of issuance of the title V operating permit Transmission System Operator, Inc. Public Health and Environment to Public Service Company of Colorado submits tariff filing per 35.13(a)(2)(iii: (CDPHE). Specifically, the for the operation of the Valmont Power C004–P11 FCA (Ameren-Bishop Hill) to Administrator has denied the March, Station. The Petition alleges that the be effective 10/18/2011. 2010, Petition, submitted by WildEarth Permit does not comply with 40 CFR Filed Date: 10/17/2011. Guardians (Petitioner), to object to part 70 in that it fails to assure Accession Number: 20111017–5095. CDPHE’s March 1, 2010, title V permit compliance with: (I) A compliance plan Comment Date: 5 p.m. Eastern Time issued to Public Service Company of for opacity monitoring requirements; (II) on Monday, November 07, 2011. Colorado dba Xcel Energy (Xcel)— applicable opacity requirements; (III) Docket Numbers: ER12–102–000. Valmont Power Station. particulate matter (PM) limits applicable Applicants: Dominion Energy Brayton Pursuant to section 505(b)(2) of the to the coal-fired boiler; (IV) CAA section Point, LLC. Clean Air Act (Act or CAA), Petitioners 112(j) for air toxics; and (V) PSD

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requirements in regard to carbon the Final Order for Public Service ENVIRONMENTAL PROTECTION dioxide (CO2) emissions. Company of Colorado—Cherokee Power AGENCY On September 29, 2011, the Station is available electronically at: [EPA–HQ–OW–2008–0517; FRL–9483–4] Administrator issued an Administrative http://www.epa.gov/region07/air/title5/ Order denying the Petition. The Order petitiondb/petitions/ RIN 2040–AF06 explains the reasons behind EPA’s xcel_cherokee_response2011.pdf. conclusions. Notice of Final 2010 Effluent Guidelines Program Plan Dated: October 19, 2011. FOR FURTHER INFORMATION CONTACT: James B. Martin, Donald Law, Air Program (8P–AR), EPA AGENCY: Environmental Protection Region 8, 1595 Wynkoop Street, Denver, Regional Administrator, Region 8. Agency (EPA). Colorado 80202–1129. Phone: (303)312– [FR Doc. 2011–27725 Filed 10–25–11; 8:45 am] ACTION: Notice. 7015. E-mail: [email protected]. BILLING CODE 6560–50–P SUMMARY: This notice presents the final SUPPLEMENTARY INFORMATION: The Act 2010 Effluent Guidelines Program affords EPA a 45-day period to review Plan(‘‘final 2010 Plan’’), which, as ENVIRONMENTAL PROTECTION and object to, as appropriate, a title V AGENCY required under the Clean Water Act operating permit proposed by State (CWA), identifies any new or existing [FRL–9483–2] permitting authorities. Section 505(b)(2) industrial dischargers, both those of the Act authorizes any person to discharging directly to surface waters Clean Air Act Operating Permit petition the EPA Administrator, within and those discharging to publicly Program; Petition for Objection to 60 days after the expiration of this owned treatment works (POTWs), State Operating Permit for Public review period, to object to a title V selected for effluent guidelines Service Company of Colorado dba Xcel operating permit if EPA has not done so. rulemaking and provides a schedule for Energy—Cherokee Power Station Petitions must be based only on such rulemakings. CWA section 304(m) AGENCY: Environmental Protection objections to the permit that were raised requires EPA to biennially publish such Agency (EPA). with reasonable specificity during the a plan after public notice and comment. ACTION: Notice of final action. public comment period provided by the The Agency published the preliminary State, unless the petitioner demonstrates 2010 Plan on December 28, 2009 (74 FR SUMMARY: This document announces that it was impracticable to raise these 68599) and solicited comments from the that the EPA Administrator has issues during the comment period or the public for 60 days. responded to a citizen petition asking grounds for the issues arose after this After considering rulemakings already EPA to object to an operating permit period. EPA received a petition from in development, the 2010 reviews, the issued by the Colorado Department of WildEarth Guardians dated April 1, preliminary Plan and public comments Public Health and Environment 2010, requesting that EPA object to the and input to determine what, if any, (CDPHE). Specifically, the issuance of the title V operating permit new rulemakings should be initiated, Administrator has denied the April 1, to Public Service Company of Colorado EPA has decided to develop effluent guidelines and standards for the 2010, Petition, submitted by WildEarth for the operation of the Cherokee Power discharge of wastewater from the Guardians (Petitioner), to object to Station. The Petition alleges that the CDPHE’s April 1, 2010, title V permit Coalbed Methane Extraction (CBM) Permit does not comply with 40 CFR issued to Public Service Company of industry and will develop pretreatments part 70 in that it fails to assure Colorado dba Xcel Energy (Xcel)— requirements for discharges of mercury Cherokee Power Station. compliance with: (I) A compliance plan from the Dental industry, and for the Pursuant to section 505(b)(2) of the for opacity monitoring requirements; discharges of wastewater from the Shale Clean Air Act (Act or CAA), Petitioners (II) applicable opacity requirements; (III) Gas Extraction (SGE) industry. may seek judicial review of those particulate matter (PM) limits applicable EPA is also issuing the detailed study portions of the petition that EPA denied to the coal-fired boiler; (IV) CAA section report for the Coalbed Methane in the United States Court of Appeals 112(j) for air toxics; and (V) PSD Extraction and the preliminary study for the appropriate circuit. Any petition requirements in regard to carbon report of the Ore Mining and Dressing for review shall be filed within 60 days dioxide (CO2) emissions. industry. from the date this notice appears in the On September 29, 2011, the This notice also solicits public Federal Register, pursuant to section Administrator issued an Administrative comments on EPA’s 2011 reviews pursuant to the authority of CWA 307 of the Act. Order denying the Petition. The Order sections 304(b), 304(g), 301(d) and ADDRESSES: You may review copies of explains the reasons behind EPA’s 307(b). the Final Order, the Petition, and other conclusions. supporting information at the EPA DATES: Submit comments on or before Region 8 Office, 1595 Wynkoop Street, Dated: October 19, 2011. November 25, 2011. Denver, Colorado 80202–1129. EPA James B. Martin, ADDRESSES: Submit your comments on requests that if at all possible, you Regional Administrator, Region 8. the final 2010 Plan, identified by Docket contact the individual listed in the FOR [FR Doc. 2011–27734 Filed 10–25–11; 8:45 am] ID No. EPA–HQ–OW–2008–0517, by FURTHER INFORMATION CONTACT section to BILLING CODE 6560–50–P one of the following methods: view the copies of the Final Order, the (1) http://www.regulations.gov. Petition, and other supporting Follow the on-line instructions for information. You may view the hard submitting comments. copies Monday through Friday, 8 a.m. to (2) E-mail: OW–[email protected], 4 p.m., excluding Federal holidays. If Attention Docket ID No. EPA–HQ–OW– you wish to examine these documents, 2008–0517. you should make an appointment at (3) Mail: Water Docket, Environmental least 24 hours in advance. Additionally, Protection Agency, Mailcode: 4203M,

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1200 Pennsylvania Ave., NW., should be double-wrapped, so that the OW–2010–0824, by one of the methods Washington, DC 20460, Attention CBI is in one package, which is itself described above. Docket ID No. EPA–HQ–OW–2008– inside another package. Clearly mark FOR FURTHER INFORMATION CONTACT: Mr. 0517. Please include a total of 3 copies. the part or all of the information that William F. Swietlik at (202) 566–1129 or (4) Hand Delivery: Water Docket, EPA you claim to be CBI. For CBI [email protected]. Docket Center, EPA West, Room 3334, information on a disk or CD–ROM that SUPPLEMENTARY INFORMATION: 1301 Constitution Ave., NW., you mail to EPA, mark the outside of the Washington, DC, Attention Docket ID disk or CD–ROM as CBI and then How is this document organized? No. EPA–HQ–OW–2008–0517. Such identify electronically within the disk or The outline of this notice follows. deliveries are only accepted during the CD–ROM the specific information that I. General Information Docket’s normal hours of operation and is claimed as CBI. In addition to one II. Legal Authority special arrangements should be made. complete copy of the material that III. What is the purpose of this Federal Instructions: Direct your comments to includes information claimed as CBI, a Register notice? Docket ID No. EPA–HQ–OW–2008– copy of the material that does not IV. Background 0517. EPA’s policy is that all comments contain the information claimed as CBI V. EPA’s 2010 Annual Review of Existing received will be included in the public must be submitted for inclusion in the Effluent Guidelines and Pretreatment docket without change and may be Standards Under CWA Sections 301(d), public docket. Information marked as 304(b), 304(g), 304(m), and 307(b) made available online at http:// CBI will not be disclosed except in www.regulations.gov, including any VI. EPA’s 2010 Evaluation of Categories of accordance with procedures set forth in Indirect Dischargers Without Categorical personal information provided, unless 40 CFR part 2. Pretreatment Standards To Identify the comment includes information Docket: All documents in the docket Potential New Categories for claimed to be Confidential Business are listed in the index at http:// Pretreatment Standards Information (CBI) or other information www.regulations.gov. Although listed in VII. The Final 2010 Effluent Guidelines whose disclosure is restricted by statute the index, some information is not Program Plan VIII. EPA’s 2011 Annual Review of Existing (see below for instructions on publicly available, i.e., CBI or other submitting CBI). Do not submit Effluent Guidelines and Pretreatment information whose disclosure is Standards Under CWA Sections 301(d), information that you consider to be CBI restricted by statute. Certain other or otherwise protected through 304(b), 304(g), and 307(b) material, such as copyrighted material, IX. Request for Comment and Information regulations.gov or e-mail. The federal is not placed on the Internet and will be regulations.gov Web site is an I. General Information publicly available only in hard copy ‘‘anonymous access’’ system, which form. Publicly available docket A. Does this action apply to me? means EPA will not know your identity materials are available either or contact information unless you This notice provides a summary of the electronically at http:// provide it in the body of your comment. Agency’s effluent guidelines review and www.regulations.gov or in hard copy at If you send an e-mail comment directly planning processes and priorities at this the Water Docket in the EPA Docket to EPA without going through time, and does not contain any Center, EPA/DC, EPA West, Room 3334, regulations.gov, your e-mail address regulatory requirements. This notice will be automatically captured and 1301 Constitution Ave., NW., also provides a summary of the included as part of the comment that is Washington, DC. The Public Reading Agency’s pretreatment standards placed in the public docket and made Room is open from 8:30 a.m. to 4:30 review. p.m., Monday through Friday, excluding available on the Internet. If you submit B. What should I consider as I prepare an electronic comment, EPA legal holidays. The telephone number for the Public Reading Room is (202) my comments for EPA for the 2011 recommends that you include your annual review? name and other contact information in 566–1744, and the telephone number for the body of your comment, and with the Water Docket is (202) 566–2426. 1. Tips for Preparing Your Comments Key documents providing additional any disk or CD–ROM you submit. If EPA When submitting comments, cannot read your comment due to information about EPA’s annual reviews and the final 2010 Effluent Guidelines remember to: technical difficulties and cannot contact • Identify the rulemaking by docket Program Plan include the following: you for clarification, EPA may not be number and other identifying • Technical Support Document for able to consider your comment. information (subject heading, Federal the 2010 Effluent Guidelines Program Electronic files should avoid the use of Register date and page number). special characters, any form of Plan, EPA–820–R–10–021, DCN 07320; • • Follow directions—The agency may encryption, and be free of any defects or Coalbed Methane Point Source ask you to respond to specific questions viruses. Category: Detailed Study Report, EPA– or organize comments by referencing a 820–R–10–022, DCN 09999; Code of Federal Regulations (CFR) part Submitting Confidential Business • Draft Guidance Document: Best Information or section number. Management Practices for Unused • Explain why you agree or disagree; Do not submit confidential business Pharmaceuticals at Health Care suggest alternatives and substitute information (CBI) to EPA through Facilities, August 26, 2010, EPA–821– language for your requested changes. http://www.regulations.gov or e-mail. R–10–006. • Describe any assumptions and Any CBI you wish to submit should be • Ore Mining and Dressing Category provide any technical information and/ sent via a trackable physical method, Preliminary Study, EPA–820–R–10–025, or data that you used. such as Federal Express or United DCN 07369. • If you estimate potential costs or Parcel Service, to Mr. M. Ahmar burdens, explain how you arrived at Data and Information for the 2011 Siddiqui, Document Control Officer, your estimate in sufficient detail to Annual Review Engineering and Analysis Division allow for it to be reproduced. (4303T), Room 6231S EPA West, U.S. Submit any data and information you • Provide specific examples to EPA, 1200 Pennsylvania Ave, NW., have for the 2011 annual reviews, illustrate your concerns, and suggest Washington, DC 20460. A CBI package identified by Docket ID No. EPA–HQ– alternatives.

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• Explain your views as clearly as guidelines and standards promulgated 2. Best Conventional Pollutant Control possible. by EPA are implemented through Technology (BCT)—CWA Sections • Make sure to submit your National Pollutant Discharge 301(b)(2)(E) & 304(b)(4) comments by the comment period Elimination System (NPDES) permits. The 1977 amendments to the CWA deadline identified. See CWA sections 301(a), 301(b), and • required EPA to identify effluent Follow the special procedures for 402. For sources that discharge to reduction levels for conventional submitting Confidential Business publicly owned treatment works pollutants associated with Best Information (CBI). (POTWs), termed indirect dischargers, Conventional Pollutant Control II. Legal Authority EPA promulgates pretreatment Technology (BCT) for discharges from standards that apply to those sources existing industrial point sources. In This notice is published under the and are enforced by the POTWs and addition to considering the other factors authority of the CWA, 33 U.S.C. 1251, State and Federal authorities. See CWA specified in section 304(b)(4)(B) to et seq., and in particular sections 301(d), establish BCT limitations, EPA also 304(b), 304(g), 304(m), 306, 307(b), 308, sections 307(b) and (c). considers a two part ‘‘cost- 33 U.S.C. 1311(d), 1314(b), 1314(g), 1. Best Practicable Control Technology reasonableness’’ test. EPA explained its 1314(m), 1316, 1317(b), and 1318. Currently Available (BPT)—CWA methodology for the development of III. What is the purpose of this Federal Sections 301(b)(1)(A) & 304(b)(1) BCT limitations in 1986. See 51 FR Register notice? EPA defines Best Practicable Control 24974 (July 9, 1986). This notice presents EPA’s 2010 Technology Currently Available (BPT) 3. Best Available Technology review of existing effluent guidelines effluent limitations for conventional, Economically Achievable (BAT)—CWA and pretreatment standards under CWA toxic, and non-conventional pollutants. Sections 301(b)(2)(A) & 304(b)(2)(B) sections 301, 304 and 307. It also Section 304(a)(4) designates the For toxic pollutants and non- presents EPA’s evaluation of indirect following as conventional pollutants: conventional pollutants, EPA dischargers without categorical Biochemical oxygen demand (BOD5), promulgates effluent guidelines based pretreatment standards to identify total suspended solids, fecal coliform, on the Best Available Technology potential new categories for pH, and any additional pollutants Economically Achievable (BAT). See pretreatment standards under CWA defined by the Administrator as CWA section 301(b)(2)(A), (C), (D) and sections 304(g) and 307(b) and (c). This conventional. The Administrator (F). The factors considered in assessing notice presents the final 2010 Effluent designated oil and grease as an BAT include the cost of achieving BAT Guidelines Program Plan (‘‘final 2010 additional conventional pollutant on effluent reductions, the age of Plan’’), which, as required under CWA equipment and facilities involved, the section 304(m), identifies any new or July 30, 1979 (44 FR 44501). EPA has process employed, potential process existing industrial categories selected identified 65 pollutants and classes of changes, non-water quality for effluent guidelines rulemaking, as pollutants as toxic pollutants, of which environmental impacts, including well as the establishment or revision of 126 specific substances have been energy requirements, and other such pretreatment standards, and provides a designated priority toxic pollutants. See factors as the EPA Administrator deems schedule for such rulemakings. CWA Appendix A to part 423. All other appropriate. See CWA section section 304(m) requires EPA to pollutants are considered to be non- 304(b)(2)(B). The technology must also biennially publish such a plan after conventional. be economically achievable. See CWA public notice and comment. The Agency In specifying BPT, EPA looks at a section 301(b)(2)(A). The Agency retains published a preliminary 2010 Plan on number of factors. EPA first considers considerable discretion in assigning the December 28, 2009 (74 FRN 68599) and the total cost of applying the control weight accorded to these factors. BAT solicited comment through February 26, technology in relation to the effluent limitations may be based on effluent 2010. This notice also provides EPA’s reduction benefits. The Agency also reductions attainable through changes preliminary thoughts concerning its considers the age of the equipment and in a facility’s processes and operations. 2011 annual reviews under CWA facilities, the processes employed, and Where existing performance is sections 301(d), 304(b), 304(g), 306 and any required process changes, uniformly inadequate, BAT may reflect 307(b) and solicits comments, data and engineering aspects of the control a higher level of performance than is information to assist EPA in performing currently being achieved within a these reviews. technologies, non-water quality environmental impacts (including particular subcategory based on IV. Background energy requirements), and such other technology transferred from a different subcategory or category. BAT may be A. What are effluent guidelines and factors as the EPA Administrator deems based upon process changes or internal pretreatment standards? appropriate. See CWA section 304(b)(1)(B). Traditionally, EPA controls, even when these technologies The CWA directs EPA to promulgate establishes BPT effluent limitations are not common industry practice. effluent limitations guidelines and based on the average of the best standards (‘‘effluent guidelines’’) that 4. New Source Performance Standards performances of facilities within the reflect pollutant reductions that can be (NSPS)—CWA Section 306 industry of various ages, sizes, achieved by categories or subcategories New Source Performance Standards processes, or other common of industrial point sources using (NSPS) reflect effluent reductions that technologies that represent the characteristics. Where existing are achievable based on the best appropriate level of control. See CWA performance is uniformly inadequate, available demonstrated control sections 301(b)(2), 304(b), 306, 307(b), BPT may reflect higher levels of control technology. New sources have the and 307(c). For point sources that than currently in place in an industrial opportunity to install the best and most introduce pollutants directly into the category if the Agency determines that efficient production processes and waters of the United States (direct the technology can be practically wastewater treatment technologies. As a dischargers), the effluent limitations applied. result, NSPS should represent the most

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stringent controls attainable through the limitations guidelines under section annual review. Therefore, EPA meets its application of the best available 304(b)(2) or NSPS under section 306. 304(g) and 307(b) requirements by demonstrated control technology for all See CWA section 304(m)(1)(B); S. Rep. reviewing all industrial categories pollutants (i.e., conventional, non- No. 50, 99th Cong., 1st Sess. (1985); subject to existing categorical conventional, and priority pollutants). WQA87 Leg. Hist. 31 (indicating that pretreatment standards on an annual In establishing NSPS, EPA is directed to section 304(m)(1)(B) applies to ‘‘non- basis to identify potential candidates for take into consideration the cost of trivial discharges.’’). Finally, under revision. achieving the effluent reduction and any section 304(m), the plan must present a Section 307(b)(1) also requires EPA to non-water quality environmental schedule for promulgating effluent promulgate pretreatment standards for impacts and energy requirements. guidelines for industrial categories for pollutants not susceptible to treatment which it has not already established by POTWs or that would interfere with 5. Pretreatment Standards for Existing such guidelines, providing for final the operation of POTWs, although it Sources (PSES)—CWA Section 307(b) action on such rulemaking not later than does not provide a timing requirement Pretreatment Standards for Existing three years after the industrial category for the identification of new industries Sources (PSES) are designed to prevent is identified in a final Plan. See CWA for pretreatment standards. EPA, in its the discharge of pollutants that pass section 304(m)(1)(C); NRDC et al. v. discretion, periodically evaluates through, interfere with, or are otherwise EPA, 542 F.3d 1235, 1251 (9th Cir. indirect dischargers not subject to incompatible with the operation of 2008). EPA is required to publish its categorical pretreatment standards to publicly owned treatment works preliminary Plan for public comment identify potential candidates for new (POTWs), including sludge disposal prior to taking final action on the plan. pretreatment standards. The CWA does methods at POTWs. Pretreatment See CWA section 304(m)(2). not require EPA to publish its review of standards for existing sources are In addition, CWA section 301(d) pretreatment standards or identification technology-based and are analogous to requires EPA to review every five years of potential new categories, although BAT effluent limitations guidelines. The the effluent limitations required by EPA is exercising its discretion to do so General Pretreatment Regulations, CWA section 301(b)(2) and to revise in this notice. which set forth the framework for the them if appropriate pursuant to the EPA intends to repeat this publication implementation of national procedures specified in that section. schedule for future pretreatment pretreatment standards, are found at 40 Section 301(b)(2), in turn, requires point standards reviews (e.g., EPA will CFR part 403. sources to achieve effluent limitations publish the 2011 annual pretreatment reflecting the application of the best standards review in the notice 6. Pretreatment Standards for New practicable control technology (all containing the Agency’s 2011 annual Sources (PSNS)—CWA Section 307(c) pollutants), best available technology review of existing effluent guidelines Like PSES, Pretreatment Standards for economically achievable (for toxic and the preliminary 2012 plan). EPA New Sources (PSNS) are designed to pollutants and non-conventional intends that these contemporaneous prevent the discharges of pollutants that pollutants) and the best conventional reviews will provide meaningful insight pass through, interfere with, or are pollutant control technology (for into EPA’s effluent guidelines and otherwise incompatible with the conventional pollutants), as determined pretreatment standards program operation of POTWs. PSNS are to be by EPA under sections 304(b)(1), decision-making. Additionally, by issued at the same time as NSPS. New 304(b)(2) and 304(b)(4), respectively. providing a single notice for these and indirect dischargers have the For over three decades, EPA has future reviews, EPA hopes to provide a opportunity to incorporate into their implemented sections 301 and 304 consolidated source of information for facilities the best available through the promulgation of effluent the Agency’s current and future effluent demonstrated technologies. The Agency limitations guidelines, resulting in guidelines and pretreatment standards considers the same factors in regulations for 57 industrial categories. program reviews. See E.I. du Pont de Nemours & Co. v. promulgating PSNS as it considers in V. EPA’s 2010 Annual Review of Train, 430 U.S. 113 (1977). promulgating NSPS. Existing Effluent Guidelines and Consequently, as part of its annual Pretreatment Standards Under CWA B. What are EPA’s review and planning review of effluent limitations guidelines Sections 301(d), 304(b), 304(g), 304(m), obligations under sections 301(d), under section 304(b), EPA is also 304(b), 304(g), 304(m), and 307(b)? reviewing the effluent limitations they and 307(b) 1. EPA’s Review and Planning contain, thereby fulfilling its obligations A. What process did EPA use to review Obligations Under Sections 301(d), under sections 301(d) and 304(b) existing effluent guidelines and 304(b), and 304(m)—Direct Dischargers simultaneously. pretreatment standards under CWA 2. EPA’s Review and Planning Section 301(d), 304(b), 304(g), 304(m), Section 304(b) requires EPA to review and 307(b)? its existing effluent guidelines for direct Obligations Under Sections 304(g) and dischargers each year and to revise such 307(b)—Indirect Dischargers 1. Overview regulations ‘‘if appropriate.’’ Section Section 307(b) requires EPA to revise In its 2010 annual review, EPA 304(m) supplements section 304(b) by its pretreatment standards for indirect reviewed all industrial categories requiring EPA to publish a plan every dischargers ‘‘from time to time, as subject to existing effluent limitations two years announcing its schedule for control technology, processes, operating guidelines and pretreatment standards, performing this annual review and its methods, or other alternatives change.’’ representing a total of 57 point source schedule for rulemaking for any effluent See CWA section 307(b)(2). Section categories and over 450 subcategories. guidelines selected for possible revision 304(g) requires EPA to annually review Generally, EPA uses four factors in a as a result of that annual review. Section these pretreatment standards and revise phased approach to review existing 304(m) also requires the plan to identify them ‘‘if appropriate.’’ Although section effluent limitations guidelines and categories of sources discharging toxic 307(b) only requires EPA to revise pretreatment standards: or non-conventional pollutants for existing pretreatment standards ‘‘from (1) Pollutants discharged in an which EPA has not published effluent time to time,’’ section 304(g) requires an industrial category’s effluent,

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(2) Potential pollution prevention and Based on this methodology, EPA categories where only a few facilities in control technology options, prioritized for potential revision a category accounted for the vast (3) Category growth and economic industrial categories that offered the majority of toxic-weighted pollutant considerations of technology options, greatest potential for reducing hazard to discharges (i.e., categories marked ‘‘(2)’’ and human health and the environment. in the ‘‘Findings’’ column in Table V– (4) Implementation and efficiency EPA assigned those categories with the 1 in section V.B.4 of this notice). EPA considerations of revising existing lowest estimates of toxic-weighted believes that revision of individual effluent guidelines or publishing new pollutant discharges a lower priority for permits for such facilities may be more effluent guidelines (see December 21, revision (i.e., industrial categories effective than a revised national 2006; 71 FR 76666). marked ‘‘(3)’’ in the ‘‘Findings’’ column rulemaking. Individual permit In the 2010 annual review EPA in Table V–1 in section V.B.4 of this requirements can be better tailored to incorporated, for the first time, notice). these few facilities and may take discharge data from approximately In order to further focus its inquiry considerably less time and resources to 15,000 ‘‘minor’’ industrial dischargers. during the 2010 annual review, EPA establish than revising the national Point sources are generally classified as assigned a lower priority for potential effluent guidelines. The Docket major or minor, depending on size and revision to categories for which effluent accompanying this notice lists facilities nature of the discharges. A major guidelines had been recently that account for the vast majority of the industrial discharger is a facility scoring promulgated or revised, or for which estimated toxic-weighted pollutant over 80 points based on rating criteria. effluent guidelines rulemaking was discharges for a particular category (see Minor industrial discharges are facilities currently underway. EPA removed an DCN 07320). For these facilities, EPA that score below the criteria score of 80 industrial point source category from will consider identifying pollutant on the rating scale. further consideration during the current control and pollution prevention review cycle if EPA established, revised, technologies that will assist permit 2. What analyses did EPA perform for or reviewed in a rulemaking context the writers in developing facility-specific its 2009 and 2010 annual reviews of category’s effluent guidelines after technology-based effluent limitations on existing effluent guidelines and August 2003 (i.e., the last seven years). a best professional judgment (BPJ) basis. pretreatment standards? EPA chose seven years because this is In future annual reviews, EPA also a. Screening-Level Review the time it customarily takes for the intends to re-evaluate each category effects of effluent guidelines or based on the information available at The first component of EPA’s 2010 pretreatment standards to be fully the time in order to evaluate the annual review consisted of a screening- reflected in pollutant loading data and effectiveness of the BPJ permit-based level review of all industrial categories TRI reports (in large part because support. subject to existing effluent guidelines or effluent limitations guidelines are often EPA also applied a lower priority to pretreatment standards. EPA focused its incorporated into NPDES permits only categories without sufficient data to efforts on collecting and analyzing data upon re-issuance of those permits, determine whether revision would be to identify industrial categories whose which could be up to five years after the appropriate. For any industrial pollutant discharges potentially are the effluent guidelines or pretreatment categories marked ‘‘(5)’’ in the most significant. EPA used Toxic standards are promulgated). EPA also ‘‘Findings’’ column in Table V–1 in Release Inventory (TRI), Permit removed an industrial point source section V.B.4 of this notice, EPA lacks Compliance System (PCS) and category from further consideration sufficient information at this time on the Integrated Compliance Information during the current review cycle if EPA magnitude of the toxic-weighted System—National Pollutant Discharge recently completed a preliminary study pollutant discharges. EPA will continue Elimination System (ICIS–NPDES) data or a detailed study and determined that reviewing available data on the to estimate the mass of pollutant no further action is necessary at this discharges and will seek additional discharges from industrial facilities. time. These categories are marked ‘‘(1)’’ information on the discharges from Because pollutant toxicities are in the ‘‘Findings’’ column in Table V– these categories in the next annual different, EPA converted the toxic and 1 in section V.B.4 of this notice. review in order to determine whether a non-conventional pollutant discharges Because there are 57 point source detailed study is warranted. See the that are reported in a mass unit categories (including over 450 appropriate section in the TSD for the (pounds) into a measure of relative subcategories) with existing effluent final 2010 Plan (see DCN 07320) for toxicity—a toxic-weighted pound guidelines and pretreatment standards EPA’s data needs for these industrial equivalent or TWPE. that must be reviewed annually, EPA categories. This assessment provides an EPA calculated the TWPE for each believes it is important to prioritize its additional level of quality assurance on pollutant discharged by multiplying the review so as to focus on industries the reported pollutant discharges and pollutant specific toxic weighting factor where changes to the existing effluent number of facilities that represent the (TWF) and the mass of the pollutant guidelines or pretreatment standards are majority of toxic-weighted pollutant discharge. Where data are available, most likely to result in further pollutant discharges. these TWFs reflect both aquatic life and discharge reduction. In general, For industrial categories marked ‘‘(4)’’ human health effects. EPA ranked point industries for which effluent guidelines in the ‘‘Findings’’ column in Table V– source categories according to their or pretreatment standards have recently 1 in section V.B.4 of this notice, EPA discharges of toxic and non- been promulgated are less likely to had sufficient information on the toxic- conventional pollutants (reported in warrant such changes. weighted pollutant discharges to units of TWPE) to assess the As part of the 2010 annual review, continue or complete a detailed study of significance of these toxic and non- EPA also considered the number of these industrial categories. conventional pollutant discharges to facilities responsible for the majority of For industrial categories marked ‘‘(6)’’ human health or the environment. EPA the estimated toxic-weighted pollutant in the ‘‘Findings’’ column in Table V– conducted this process for the 2010 discharges associated with an industrial 1 in section V.B.4 of this notice, EPA is annual reviews using the most recent activity. EPA applied a lower priority identifying this industry for a revised TRI, PCS and ICIS–NPDES data (2008). for potential revision to industrial effluent guidelines rulemaking.

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Next, EPA considered the availability requirements of the Paperwork more in-depth reviews of the higher of technologies to reduce pollutant Reduction Act (PRA), 33 U.S.C. 3501, et priority categories. discharges. EPA does not have, for all of seq. The information acquired in this b. Further Review of Prioritized the 57 existing industrial categories, way is valuable to EPA in its rulemaking Categories information about the availability of efforts, but the process of gathering, treatment or process technologies to validating and analyzing the data can EPA conducts a preliminary category reduce pollutant wastewater discharges consume considerable time and review when it lacks sufficient data to beyond the performance of the resources. EPA does not think it is determine whether a regulatory revision technologies upon which existing appropriate or feasible to conduct this would be appropriate and for which effluent guidelines and standards were level of analysis for all point source EPA is performing a further assessment developed. At present 46 states and one categories in conducting an annual of pollutant discharges before starting a U.S. territory are authorized to review. Rather, EPA uses its analyses of detailed study. These assessments administer the CWA NPDES program. existing pollutant discharges to identify provide an additional level of quality Under the CWA, permitting authorities the categories with the largest toxic- assurance on the reported pollutant must include water-quality based weighted discharges. From this smaller discharges and number of facilities that effluent limits where the technology- list of categories, EPA evaluates the represent the majority of toxic-weighted based effluent limits are not sufficient to possibility of effective technologies and pollutant discharges. meet applicable water quality standards. selects certain industries for further In conducting a preliminary category Therefore, dischargers may have already examination (e.g., Preliminary Category review, EPA uses the same types of data installed technologies that reduce Reviews, Detailed Studies). sources used for the detailed studies or pollutant discharges to a level below the Additionally, when EPA becomes effluent guidelines development but in original technology-based requirements aware of the growth of a new industrial less depth. As part of the preliminary in order to meet such water-quality activity within an existing category or category reviews, EPA may evaluate based effluent limitations. where new concerns are identified for technologies that could achieve better Analyzing the significance of the previously unevaluated pollutants control of pollutant discharges. EPA remaining pollutant discharges is most discharged by facilities within an might also conduct surveys or collect useful for assessing the potential industrial category, EPA applies more data from additional sources. The full effectiveness of additional technologies scrutiny to the category in a subsequent description of EPA’s methodology for because such an analysis focuses on the review. the 2010 annual review is presented in amount and significance of pollutant EPA also considers whether there are the Technical Support Document (TSD) discharges that would actually be industrial activities not currently for the final 2010 Plan (see DCN 07320). removed through new, technology-based subject to effluent guidelines or c. Detailed Studies nationally-applicable regulations for pretreatment standards that should be these categories. Where potential included with these existing categories, EPA conducts detailed studies to pollutant discharge reductions are not either as part of existing subcategories obtain information on hazard, significant, there are likely few effective or as potential new subcategories. These availability and cost of technology technology options for a technology- industries are sometimes suggested by options, and other factors in order to based rule. Once EPA determined which commenters during the public comment determine if it would be appropriate to industries have the potential for period or may come to EPA’s attention identify the category for possible significant additional pollutant in other ways. effluent guidelines revision. The full removals, EPA further examined the EPA also continued to use the quality description of EPA’s methodology for availability of technologies for certain assurance project plan (QAPP) the 2010 review is presented in the industries. For example, EPA identified developed for the 2009 annual review to Technical Support Document (TSD) for technologies to minimize pollutant document the type and quality of data the final 2010 Plan (see DCN 07320). discharges from coalbed methane needed to make the decisions in this 3. How did EPA’s 2009 annual review extraction facilities (see Coalbed 2010 annual review and to describe the influence its 2010 annual review of Methane Point Source Category: methods for collecting and assessing point source categories with existing Detailed Study Report, EPA–820–R–10– those data (see EPA–820–R–10–021). effluent guidelines and pretreatment 022, DCN 09999). EPA performed quality assurance EPA also considered whether there checks on the data used to develop standards? was a way to develop a suitable tool for estimates of toxic-weighted pollutant In view of the annual nature of its comprehensively evaluating the discharges (i.e., verifying 2008 discharge reviews of existing effluent guidelines availability and affordability of data reported to TRI, PCS and ICIS– and pretreatment standards, EPA treatment or process technologies, but NPDES) to determine whether any of the believes that each annual review can determined that there is not, because the pollutant discharge estimates relied on and should influence succeeding annual universe of facilities is too broad and incorrect or suspect data. For example, reviews, e.g., by indicating data gaps, complex. EPA could not find a EPA contacted facilities and permit identifying new pollutants or pollution reasonable way to prioritize the writers to confirm and, as necessary, reduction technologies, or otherwise industrial categories based on readily correct TRI, PCS or ICIS–NPDES data for highlighting industrial categories for available engineering and economic facilities that EPA had identified in its additional scrutiny in subsequent years. data. In the past, EPA has gathered screening-level review as the significant During its 2009 annual review, which information regarding technologies and dischargers. concluded the end of December 2009, economic achievability for one In summary, through its screening EPA continued detailed studies of the industrial category at a time through level review, EPA focused on those existing effluent guidelines and detailed questionnaires distributed to point source categories that appeared to pretreatment standards for two hundreds of facilities within a category have the greatest potential for reducing industrial categories: Oil and Gas or subcategory for which EPA has hazard to human health and the Extraction category (Part 435) for the commenced rulemaking. Such environment. This enabled EPA to purpose of assessing whether to revise information-gathering is subject to the concentrate its resources on conducting the limits to include coalbed methane

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extraction as a new subcategory, and including the states of WY, MT, NY, WI, For the Ore Mining and Dressing Hospitals (Part 460) which is part of the OR, FL, ID and the Quicksilver Caucus. category there were two comments that Health Care Industry detailed study on EPA received comments from 22 stated EPA should not develop a new the management of unused private individuals, all addressing the ELG. pharmaceuticals. In addition, EPA issue of the environmental impacts of For the Steam Electric Power conducted a preliminary study of the hydraulic fracturing used in shale gas Generation industry, which is currently Ore Mining and Dressing category (part extraction. Most of these individuals undergoing a revised ELG as a result of 440) during 2009. EPA used the were from NY and PA, and their last year’s Plan, there was one comment findings, data and comments on the comments reflected concerns about that supported EPA’s selection of the 2009 annual review to inform its 2010 shale gas extraction in the Marcellus steam electric industry for rulemaking, annual review and the final 2010 Plan. Shale formation. and one commenter that believed EPA The 2010 review also built on the EPA also received comments from one made several errors in its detailed study previous reviews by incorporating some Tribal Nation (the Northern Cheyenne) final report. and four local organizations (Tompkins refinements to assigning discharges to One commenter asked EPA to select categories and updating toxic weighting County Senior Citizen Council, St. Paul MetroCouncil, Bay Area Pollution the dental industry for an ELG factors. rulemaking, arguing that the industry is EPA published the findings from its Prevention Group and Albany Medical responsible for half of the national 2009 annual review with its preliminary College). mercury loadings to Publicly Owned 2010 Plan (December 28, 2009, 74 FRN Comments were distributed among Treatment Works (POTWs), and the 68599), making the pollutant discharge the following subject areas, in order of ongoing activities under the Dental and industry profile data available for abundance: Amalgam control MOU are insufficient. public comment. Docket No. EPA–HQ– —Coalbed Methane and Shale Gas OW–2008–0517. Extraction (40 comments) A more detailed summary table of the —Health Care Industry—(unused comments can be found in the 2010 4. How did EPA consider public pharmaceuticals) (35 comments) TSD, EPA–820–R–10–021 (DCN 07320). comments in its 2010 annual review? —Ore Mining and Dressing (2 EPA carefully considered all public EPA’s annual review process comments) comments and information submitted in considers information provided by —Steam Electric Power Generation (2 developing the final 2010 Plan. A stakeholders regarding the need for new comments) comment response document is also or revised effluent limitations —Effluent limitation guidelines (ELGs) available at (DCN 07368). guidelines and pretreatment standards. and Plan process in general (2 comments) B. What were EPA’s findings from its Public comments received on EPA’s 2010 annual review for categories prior reviews and Plans helped the —Dental Amalgam (1 comment) —Other (2 comments) subject to existing effluent guidelines Agency prioritize its analysis of existing and pretreatment standards? effluent guidelines and pretreatment For coalbed methane, there were standards during the 2010 review. seven comments that also expressed 1. Screening-Level Review concern with the practice of shale gas Public comments, depending on the In its 2010 screening level review, number, the issues, the data and extraction; 13 comments requesting that EPA examine shale gas extraction in the EPA considered hazard, and the other information submitted and the factors described in section V.A.2. recommendations made therein, can coalbed methane detailed study; seven requests to not add shale gas extraction above, in prioritizing effluent guidelines influence the annual review. for potential revision. See Table V–1 in In accordance with CWA section to the coalbed methane study; six section V.B.4 of this notice for a 304(m)(2), EPA published the commenters who suggested that EPA summary of EPA’s findings with respect preliminary 2010 Plan for public should do a coalbed methane ELG rule; to each existing category; see also the comment prior to this publication of the and seven commenters who suggested TSD for the final 2010 Plan, EPA–820– final 2010 Plan. See December 28, 2009 that EPA not do a rule. R–10–021, DCN 07320). Of the (74 FRN 68599). The Docket For the Health Care industry, in categories subject only to the screening accompanying this notice includes a particular the management of unused level review in 2010, EPA is not complete set of all of the comments pharmaceuticals, EPA received three identifying any for effluent guidelines submitted, as well as the Agency’s comments supporting the detailed rulemaking at this time, based on the responses (see DCN 07368). The Agency study; three comments suggesting EPA factors described in section V.A above received 51 sets of comments on the work more closely with the U.S. Drug and in light of the effluent guidelines preliminary 2010 Plans. Enforcement Agency (DEA); four Commenting organizations comments that explained EPA should rulemakings in progress. representing industry included the work with the Food and Drug EPA carefully examined the industrial American Petroleum Institute, American Administration (FDA) and health categories currently regulated by Health Care Association, Independent insurance companies to encourage existing effluent guidelines that Petroleum Association of America, unused pharmaceutical returns and a cumulatively comprise 95% of the National Association of Clean Water coordinated message about such; twelve reported hazard (reported in units of Agencies, American Dental Association, comments indicating EPA should toxic-weighted pound equivalent or American Water Works Association, and develop BMPs, disposal guidance, flyers TWPE). The TSD for the preliminary the National Mining Association. and other disposal information; three 2010 Plan presents a summary of EPA’s Six environmental groups comments supporting take-back review of these 21 industrial categories commented, including the Northern programs; six comments that suggested (see DCN 07320). Plains Resources Council, Earth Justice, current disposal practices are barriers to EPA identified one category where Environmental Integrity Project and the return/reuse; and four comments additional data are required to evaluate Powder River Basin Council. indicating that pharmaceutical flushing toxic-weighted pollutant discharges. Eight states, or state representing should be controlled by sewage EPA will initiate a preliminary category organizations, also commented, treatment authorities. review for the cellulosic products

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segment of the Plastics Molding and term impacts include sodium buildup, Management of Produced Water Forming (part 463) industrial category. reduction of plant diversity, Coalbed methane operators need to Although EPA identified only one mobilization of salts and other elements, dispose of thousands of gallons of industrial category for preliminary and alteration of surface and subsurface produced water per day for each category review in the 2010 annual hydrology. coalbed methane well. Operators can review, EPA also identified that Overview of Operations: employ a range of options for treatment estimated toxic-weighted pollutant Methane gas is naturally created and management of this wastewater. discharges of lead from the Pulp, Paper, Preliminary estimates based on survey and Paperboard (part 430) industrial during the geologic process of converting plant material to coal data predict that approximately 47 category need further investigation. EPA billion gallons of produced water are intends to continue reviewing the Pulp, (coalification). To extract the methane, coalbed methane operators drill wells pumped annually from coal seams Paper and Paperboard industry during across the country. Approximately 45% the 2011 annual review. into coal seams and pump out ground water. Removing the ground water from of those produced waters are directly EPA identified the need for additional discharged to waters of the U.S., for a data review as part of the 2011 annual the formation is necessary to produce coalbed methane, as the water removal total national discharge of 22 billion review for three industrial categories. gallons per year. See the appropriate section in the TSD reduces the pressure and allows the methane to release from the coal to Surface water discharge is most for the final 2010 Plan, EPA–820–R–10– prevalent in three U.S. coalbed methane 021, (see DCN 07320) for a detailed produce flowing natural gas. In 2008, 252 coalbed methane operators managed basins: The Black Warrior Basin in discussion of EPA’s findings for these Alabama and Mississippi (11% of total approximately 55,500 coalbed methane industrial categories: Mineral Mining coalbed methane surface discharges), wells in the U.S. in 13 distinct regions, and Processing (part 436); Landfills the Powder River Basin in Wyoming called basins. (Part 445); and Waste Combustors (part and Montana (72% of total coalbed 444). See Section IX of this notice for Produced Water methane surface discharges), and the the requested public comments. Based Raton Basin in Colorado and New on new data submitted with public The ground water that has been Mexico (11% of total coalbed methane comment and screening-level data pumped out of the well, called surface discharges). Many of these collected as part of the 2011 annual ‘‘produced water,’’ like most ground discharges are largely untreated. Surface review, EPA intends to re-evaluate the water found deep below the surface of discharge occurs rarely, if at all, in the category toxic-weighted pollutant the earth, has high salinity and can other major commercial basins. discharges. include pollutants such as chloride, In the other commercial basins in the 2. Results of Detailed Studies sodium, sulfate, bicarbonate, fluoride, U.S, coalbed methane operators are, for iron, barium, magnesium, ammonia, and the most part, able to prevent Oil and Gas Extraction (part 435) arsenic. To quantify the amount of discharging their produced water by As a result of prior 304(m) planning, pollutants in coalbed methane produced discharging the water to land (where EPA initiated a detailed study of the waters, EPA relied on measuring total there may be other impacts to the soil coalbed methane industry and its dissolved solids (TDS) and electrical or vegetation), re-injecting the produced wastewater discharges. Coalbed conductivity (EC), which are bulk water back into the ground, or using the methane extraction is considered a parameters for quantifying the total water in one of many beneficial use subcategory of the Oil and Gas amount of dissolved solids in a options (e.g., stock watering, irrigation). Extraction Point Source Category, wastewater. Treatment of Produced Waters although it is not currently subject to A single coalbed methane well can the effluent guidelines promulgated for discharge thousands of gallons of Available technology options for this category. Since 2006, the coalbed produced water per day, and may adequately removing pollutants from methane industry has expanded. In discharge produced water for anywhere produced water include ion exchange addition, EPA received comments in from 5 to 15 years. Coalbed methane and reverse osmosis. 2005, 2008, and again during the 2010 wells have a distinctive production review from citizens and environmental Summary of Outreach history characterized by an early stage advocacy groups requesting In 2007 EPA conducted several site when large amounts of water are development of a regulation for coalbed visits to coalbed methane basins produced to reduce reservoir pressure methane extraction as well as for shale throughout the country and gathered which in turn encourages release of gas; gas extraction, another subcategory of information on potential treatment a stable stage when quantities of the Oil and Gas Extraction Point Source technologies for coalbed methane- produced gas increase as the quantities Category. Unlike coalbed methane produced water discharges. EPA also of produced water decrease; and a late extraction, however, shale gas extraction conducted widespread outreach with stage when the amount of gas produced is now subject to effluent guidelines for stakeholders, both in the industry and declines and water production remains the Oil and Gas Extraction Point Source from the communities adjacent to Category, although there are currently low. coalbed methane basins. EPA conducted no applicable categorical pretreatment The quantity and quality of produced more than 30 site visits to locations in standards for shale gas extraction. water varies from basin to basin, within six coalbed methane basins and met Coalbed methane-produced water a particular basin, from coal seam to with over 300 different stakeholders. discharges can impact receiving surface coal seam, and over the lifetime of a EPA also conducted 13 meetings and waters and soils. Saline discharges from coalbed methane well. For example, teleconferences with over 150 coalbed methane operations can coalbed methane produced water stakeholders. In addition to the adversely affect aquatic life. The large volumes range from 1,000 gallons per extensive information collection volume of water discharged can also day per well in the San Juan Basin to through site visits and outreach, EPA cause stream bank erosion and salt 17,000 gallons per day per well in the acknowledged that an informed deposition, creating hardpan soil. Long- Powder River Basin. decision about rulemaking would

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require even more detailed information. weighted pollutant discharges by the ore approximately 90 percent of toxic EPA developed an industry mining industry ranked relatively high weighted discharges by the ore mining questionnaire, solicited public comment compared to other industries in the industry for toxic pollutants. twice, and in 2009 obtained OMB 2002 through 2008 annual reviews. The Given that only a small percentage of approval under the Paperwork purpose of the study was to identify, active ore mines account for the Reduction Act, to conduct a mandatory collect, and review readily available majority of toxic weighted discharges, survey directed at operators of coalbed existing data and information on toxic this can best be addressed through methane projects which consist of a pollutants in wastewater discharges to permitting, compliance, and single well or a group of wells operated determine whether additional analysis enforcement activities for the specific by the same company. The or revision of 40 CFR part 440 might be ore mining sources, rather than by questionnaire collected technical and warranted to better control toxic revision of 40 CFR part 440. economic data in a two-part survey, a discharges. While the available toxic pollutant screener and a detailed survey, on the The preliminary study focused on data does not suggest that EPA revisit operations and operators of coalbed active ore mines covered under 40 CFR the ELG for ore mining and dressing (40 methane projects. Questionnaire part 440 subpart J: ‘‘Copper, Lead, Zinc, CFR part 440) at this time, the Agency responses arrived in early 2010 and the Gold, Silver, and Molybdenum Ores.’’ currently remains concerned about data was used by EPA to create national These types of mines comprise many other types of mining-related estimates of pollutant discharges across approximately 76 percent (263) of the water quality impairments. EPA has a the country from the coalbed methane approximately 345 ore mines in the number of activities that address industry and to develop an economic United States. Inactive ore mines were discharges of pollutants from mines profile of the industry. not included as they are not covered by including interim guidance on In response to the 2010 preliminary the effluent guidelines. Improving EPA Review of Appalachian Plan, EPA received 32 comments on Approximately 294 ore mines Surface Coal Mining Operations Under coalbed methane extraction. Comments currently have National Pollutant the Clean Water Act, National from industry sources did not support Discharge Elimination System (NPDES) Environmental Policy Act, and the rulemaking for coalbed methane, wastewater discharge permits. There is Environmental Justice Executive Order, suggesting an effluent guideline was not a difference between the total number of plans to revise the water quality criteria appropriate due to the variability of ore mines and the number with NPDES for selenium, increased attention on produced water quality, quantity and permits because not all ore mines have compliance with, and enforcement of, available management techniques across wastewater discharges. The individual permit limits; improved the country. Additionally, industry approximately 1,870 placer mines, permitting guidance and more stringent stated that the current regulatory covered under 40 CFR part 440 subpart discharge monitoring requirements in framework of site-specific BPJ permits M, were not examined in this study permits. was adequately addressing pollutant because they employ mining practices The Ore Mining Preliminary Study and wastewater streams that are discharges from produced water report is being issued concurrent with fundamentally different from mines discharges. the publication of this FR Notice and The final detailed study report for covered under the other subparts of 40 represents a portion of the final 2010 CFR part 440. coalbed methane is being issued Plan. The Ore Mining Preliminary Study The preliminary study examined concurrent with the publication of this report (EPA–820–R–10–025) is available information pertaining to the two types at DCN 07369. FR Notice and is a part of the final 2010 of wastewater discharged by ore mines: Plan. The study report is available at Process wastewater (including mine 4. Other Reviews DCN 09999. drainage) and stormwater. Process Shale Gas Extraction Coalbed methane production wastewater is covered under 40 CFR represents about 8% of natural gas part 440. Stormwater is not covered Overview production in this country, and coalbed under 40 CFR part 440 unless it is As discussed in the March 2011 methane extraction is expected to commingled with process wastewater ‘‘Blueprint for a Secure Energy Future,’’ continue for decades. Of the 22 billion prior to discharge to a surface (‘‘Blueprint’’) the production of gallons of water discharged to surface waterbody. domestic natural gas enhances energy water each year some has high total The study was limited by incomplete security and fuels our nation’s economy dissolved solids. The detailed study also national-level process wastewater (DCN 07496). In 2010, U.S. natural gas found that there are readily available discharge data, and the lack of any production reached its highest level in technologies to treat this produced nationally representative stormwater more than 30 years with much of the water. As a result of the information data for the ore mines of interest. EPA increase resulting from the production gathered in the detailed study, EPA has did review available ore mine-specific of natural gas from shale formations. decided to initiate rulemaking for process wastewater discharge This is due to recent advances in coalbed methane extraction, a currently information, available Total Maximum horizontal drilling and hydraulic unregulated subcategory of the Oil and Daily Load (TMDL) reports, information fracturing that have made extraction of Gas Extraction Point Source Category. for ore mine site stormwater discharges, natural gas from shale formations more 3. Results of Preliminary Category and an industrial wastewater treatment technically and economically feasible. Reviews technology, known as high density The increase is expected to continue. sludge recycling, which was identified The U.S. Department of Energy projects Ore Mining and Dressing (Part 440) during the course of the study. shale gas production as a percentage of As discussed in the 2008 Final Based on EPA’s review of toxic the U.S. natural gas production will Effluent Guidelines Program Plan, EPA pollutant data, EPA found that in 2007, increase over the next 25 years from the conducted a preliminary study of the most recent year for which quality- current level of 14% to an estimated facilities covered under 40 CFR part 440 checked data are available, 45%. ‘‘Ore Mining and Dressing Point Source approximately only two percent of ore As indicated in the ‘‘Blueprint,’’ the Category’’ to examine why toxic mining facilities were responsible for Administration is taking several steps to

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ensure natural gas is developed in a safe past few years and the upward trend is gas a pathway to travel to the well for and environmentally responsible expected to continue. For example, data extraction. manner. The ‘‘Blueprint’’ lists several from the Pennsylvania Department of While the composition of the initiatives to support these goals, Environmental Protection shows that fracturing fluids varies from region to including disclosure of fracturing the number of shale gas wells drilled in region, and is specific to the formation chemicals, public meetings, EPA- and Pennsylvania increased substantially in to be fractured, the classes of DOE-led research, the establishment of the past few years, with more wells compounds in the fluids are largely the an expert panel to examine fracturing drilled and permits issued between same. The major components of issues, and technical assistance to State January and April of 2010, than during fracturing fluid are water and proppant regulators. In particular, the ‘‘Blueprint’’ all of 2008 (DCN 07474). As the number (typically sand), used to keep the directed the Secretary of Energy, in of shale gas wells in the U.S. increases, fractures open after the fracturing has consultation with the EPA so too does the volume of shale gas been complete, and chemical additives. Administrator and Secretary of the wastewater that requires disposal. EPA has reviewed data presented by Interior, to task the Secretary of Energy Wastewater associated with shale gas industry sources including Chesapeake Advisory Board (SEAB) with extraction can contain high levels of Energy, Talisman Energy, the Gas establishing a subcommittee to examine total dissolved solids (TDS), fracturing Technology Institute (GTI) and issues related to shale gas production fluid additives, metals, and naturally Halliburton, regarding the different through hydraulic fracturing. The occurring radioactive materials (NORM). classes of compounds in fracturing subcommittee is supported by DOE, EPA requested comments in the 2010 fluids, such as biocides, friction EPA and DOI, and its membership Preliminary Effluent Guidelines Plan on reducers, surfactants, scale and extends beyond SEAB members to whether to include shale gas extraction corrosion inhibiters and acids. include leaders from industry, the as part of the Coal Bed Methane Additionally, EPA has reviewed a environmental community, academia, Detailed Study. Many of the comments registry developed jointly by the Ground and states. The subcommittee is on this topic expressed general concern Water Protection Council and the working to identify both immediate about drinking water contamination and Interstate Oil and Gas Commission of steps that can be taken to improve the water quality impacts from shale gas chemicals used in fracturing fluids safety and environmental performance extraction. voluntarily provided by oil and gas of fracturing and to provide consensus Industry commenters asserted that a companies (http://www.fracfocus.org). recommended advice to the agencies on shale gas rulemaking was not needed A portion of the injected fracturing practices for shale extraction to ensure since existing Oil and Gas Effluent fluid will remain in the fractures. The the protection of public health and the Guidelines require zero discharge from precise amount of fluid retention is environment. On August 11, 2011, the shale gas extraction. Although the uncertain and depends on the geologic Subcommittee submitted a 90-day existing regulations for onshore oil and formation. The fluids not retained in the report with its preliminary gas extraction prohibit direct discharges formation will ultimately return to the recommendations (DCN 07504). The of wastewaters from shale gas surface as ‘‘flowback’’ or ‘‘produced report recommends measures to extraction, the current regulations do water.’’ These wastewaters may contain increase public disclosure and not contain pretreatment standards for the chemicals originally found in the transparency and address concerns pollutants associated with these fracturing fluids as well as other about air and water pollution. The discharges. EPA also has data that naturally occurring constituents that report also recommends a range of tools document pollutants in wastewaters may be released into the fluid as the for implementing these measures, associated with shale gas extraction are rock formations are broken. not treated by the technologies typically including regulation, continuous Produced Waters From Shale Gas improvement in best practices by used at publicly and privately owned Extraction industry, and ongoing research and treatment facilities (DCN 07477 and development. DCN 07472A1). A shale gas well has two distinct Today’s decision to initiate EPA ultimately decided not to expand phases of water production from the rulemaking is consistent with these the Coal Bed Methane Study to include formation. The first phase typically initiatives in that it addresses potential shale gas extraction. However, as a occurs during the first 30 days following environmental impacts associated with result of public comments, EPA began the fracturing process (DCN 07482A10 hydraulic fracturing. This is part of the reviewing available data to inform a and DCN 07482A23), also known as the Administration’s commitment in the decision on whether or not a rulemaking ‘‘flowback period.’’ During this time a ‘‘Blueprint’’ to continue to review to establish pretreatment standards for portion of the injected fracturing fluid existing regulatory structures governing shale gas extraction was appropriate. will return to the surface. There are varying reports on the both onshore and offshore oil and gas Overview of Shale Gas Operations development to identify potential actual volume of flowback; multiple efficiencies in those processes and any The term ‘‘Shale Gas’’ is typically studies and presentations report that crucial gaps that pose safety and used to describe natural gas trapped in volumes ranging from 10–75% of the environmental risks. underground shale deposits. Well injected fracturing fluids are returned EPA will carefully consider the operators use the process of hydraulic during the flowback period. The amount SEAB’s preliminary and final fracturing to extract this gas. Hydraulic of ‘‘flowback’’ is dependent, in part, on recommendations as EPA develops fracturing is a method of extracting the geology of the shale basin (DCN regulatory options. EPA’s regulatory natural gas from highly impermeable 07477). action will complement and benefit by rock formations by injecting large After this initial surge of flowback the initiatives already announced in the amounts of fracturing fluids (typically 3 passes, produced water will continue to President’s ‘‘Blueprint.’’ to 5 million gallons) at high pressures to come to the surface for the life of the create a network of fissures, typically well. Chesapeake Energy provided data Introduction 250 feet in length (with occasional indicating that ‘‘long term’’ produced The production of natural gas from fractures as long as 1,000 feet), in the water volumes range from 200–1,000 shale formations has increased over the rock formations and provide the natural gallons per million cubic feet of gas

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produced depending on the basin in produced water and found a range of formulating fracturing fluid for a future which the well is located. Currently, the pollutant concentrations: phenol (Non- well 1. Re-use of shale gas wastewater is, Barnett shale formation has the highest Detect—3,700 ppb), pyridine (Non- in part, dependent on the levels of long term flowback volumes and the Detect—534 ppb), benzene (1—3,400 pollutants in the wastewater and the Marcellus shale formation has the ppb), ethyl benzene (Non-Detect—1,400 proximity of other fracturing sites that lowest. While there is no consensus on ppb), toluene (Non-Detect—11,400 ppb), might re-use the wastewater. This when the initial ‘‘flowback’’ period total xylenes (2—14,500 ppb), and practice has increased over the last ends, some operators choose to view all glycol (10,000—120,000 ppb). couple of years, especially in regions of water passing from the formation up Additionally, bromide linked to shale the country where fresh water is not through the wellbore as ‘‘produced gas wastewater has been measured in plentiful. water’’ regardless of the time period in POTW outfalls (1,020—1,100 ppm) When injection and re-use are not which it occurs. (DCN 07481A04, DCN 07481A03, DCN viable options for shale gas wastewater 07479A06, and DCN 07481A02). disposal, operators may dispose of this Pollutants in Shale Gas Wastewaters NORM is an acronym for naturally wastewater by sending it to POTWs or Produced waters (shale gas occurring radioactive material. The U.S. to private centralized waste treatment wastewaters) generally contain elevated Department of Energy published a facilities (CWTs). The vast majority of concentrations of fracturing fluid report in 2009 that includes a POTWs employ equalization, bulk additives, salt content (often expressed description of the process by which solids removal, biological treatment, as total dissolved solids—TDS), NORM in the rock formations would be and disinfection. POTWs are likely conventional pollutants, organics, brought to the surface by hydraulic effective in treating only some of the metals, and NORM (naturally occurring fracturing (DCN 07476). Radium 226, pollutants in shale gas wastewater, such radioactive material). which has a half life of over 1,000 years, as the conventional and organic EPA has multiple sources of shale gas has been found to be present in pollutants. These treatment technologies produced water characterization data concentrations up to 16,030 pCi/l in the are not designed to treat high levels of including reports published by the Marcellus Shale produced water as TDS, NORM, or high levels of metals 2; Department of Energy (DCN 07476 and reported by the New York State it is believed that much of these DCN 07474) and industry flowback Department of Environmental pollutants pass through the POTW analysis made available by Chesapeake Conservation in 2009 (DCN 07473). This untreated. Many CWTs, of which 90% Energy, Talisman Energy, Devon Energy, reported radionuclide concentration discharge to POTWs, are similarly not Superior Well Services, and GTI. exceeds the drinking water Maximum designed to treat for high TDS or NORM Total dissolved solids is the most Contaminant Level of 5 pCi/L for (DCN 07474). reported pollutant. Data on TDS Radium 226. High concentrations of TDS may also concentrations are widely available due While EPA has some data on the lead to inhibition or disruptions of to the potential negative impact of high additives in fracturing fluid, EPA is not POTW treatment efficiency. However, concentrations of TDS on the ability to aware of any substantial sampling data most POTWs that accept shale gas re-use the shale gas wastewater. on the presence or absence of these wastewaters blend small volumes with Elevated TDS levels may also impact the additives in shale gas wastewaters. traditional POTW wastewaters (1% effectiveness of the additives in the shale gas wastewater by volume) to Shale Gas Wastewater Disposal and fracturing fluids (DCN 07482A03). reduce pollutant concentrations through Treatment High concentrations of TDS are dilution to prevent POTW inhibition common in shale gas wastewater across Up to 1 million gallons of shale gas (DCN 07474). the country, although the levels may wastewater may be produced from a vary from basin to basin. TDS single well within the first 30 days Local Limits for Shale Gas Extraction concentrations of 100,000 ppm are following fracturing. Smaller volumes of Wastewater Introductions to POTWs typical and can be as high as 400,000 shale gas wastewater will also be Under the Clean Water Act statutory ppm (DCN 07476). For comparison, sea produced throughout the life of the and regulatory framework, POTWs must water contains approximately 35,000 well. Many well operators transport this establish requirements for any ppm TDS. The main component ion of wastewater to Underground Injection introduction of wastewater to the POTW TDS in shale gas wastewater appears to Control (UIC) program permitted brine or its collection system if it either would be chloride, which accounts for injection wells where the wastewater is cause ‘‘pass through’’ or ‘‘interference’’ approximately 60% of the TDS found in permanently emplaced underground, a (e.g., cause the POTW to violate its shale gas wastewater. Chloride has been common practice in the oil and gas permits limits, or interfere with the measured in shale gas wastewater water industry. The ability to inject shale gas operation of the POTW or the beneficial at levels of 8,800—153,000 ppm. Other wastewater varies based on local use of its sewage sludge). POTWs are components may include barium (21— geology and permitting requirements. subject to the secondary treatment 13,900 ppm), strontium (Non-Detect— For example, this practice is widely effluent limitations at 40 CFR part 133, 3,700 ppm), calcium (314—23,500 used in the Barnett (Texas) formation which do not address the parameters of ppm), magnesium (135—5,000 ppm) where the state has more than 12,000 concern in shale gas extraction and sodium (2,800—65,000 ppm). brine disposal wells, and less so in the wastewater (e.g., TDS, chloride, Additionally, the concentrations of TDS Marcellus formation (PA, WV, OH, NY, radionuclides, etc). If a water quality in produced water from each well tend MD). For comparison purposes, the to increase over time (DCN 07482A13, Marcellus formation states presently 1 In order to prepare shale gas wastewater for re- use, the produced water is filtered to remove DCN 07482A10, DCN 07482A23, and have less than 300 brine disposal wells. suspended solids from wastewater and then DCN 07482A15). The state of Pennsylvania, where most combined with fresh water and additives to Organic and inorganic pollutants Marcellus shale drilling occurs, has six formulate fracturing fluid. Typically re-used shale appear to be less frequently sampled in brine disposal wells. gas wastewater makes up only a small percentage comparison to the well documented Some operators elect to re-use a of water demand for fracturing operations. 2 Metcalf & Eddy Inc. (2003) Wastewater TDS concentrations. EPA has reviewed portion of the wastewater to replace Engineering: Treatment and Reuse McGraw-Hill, limited data on organic pollutants in and/or supplement fresh water in New York.

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based effluent limit for these parameters fish and frogs are less sensitive to that shale gas development could have is not included in the POTW permit, chloride with acute effect on American communities. Some states and if there is no evidence of concentrations ranging from 3,959 ppm have allowed development; others have interference, or sewage sludge to 14,500 ppm and chronic effect put a hold on any development, contamination, the POTW may not have concentrations of 646 ppm to 955 ppm cautious about the environmental a basis to develop appropriate local (DCN 07483). Available data on impacts of shale gas production. Some limits. Independent of CWA maximum chloride concentrations in states have asked that national requirements, POTWs can establish shale gas wastewaters exceed the acute standards be promulgated, and have local limits under their sewer use effect concentration by a factor of over also requested resources to help deal ordinances for any parameters they 100 4 (DCN 07482A15). with these possible impacts. We have determine could cause problems at the In addition to the laboratory data, also heard from industry that shale gas POTW. Currently, however, it is EPA also has data from a 2009 extraction is currently regulated under uncommon that POTWs have Pennsylvania Department of the existing Oil and Gas Effluent established local limits for the Environmental Protection violation Limitation Guidelines and those parameters of concern here, or that report documenting a fishkill attributed regulations are sufficient. What we POTWs have water quality-based to a spill of diluted produced water in know is that shale gas extraction effluent limitations (WQBELs) for such Hopewell Township, PA. A sample of generates extremely large volumes of parameters. Possible Impacts of Shale the receiving water at the location of the wastewater that contain considerable Gas Wastewater Discharges to Drinking fishkill was analyzed and TDS was pollutant loads. Some of this is being Water Sources and Aquatic Life. measured as high as 7,000 ppm. The responsibly reinjected into appropriate TDS has been shown to have negative report documents the effects of the TDS underground wells; other volumes of impacts on aquatic life and drinking on aquatic species such as fish and wastewater are likely not being treated water. The level at which these impacts salamanders and frogs, including effectively by existing treatment may occur is far less than the level of mortalities (DCN 07471).5 facilities. Resulting discharges have the TDS typically found in shale gas Moreover, bromide found in shale gas potential to affect both drinking water wastewater. As described above, the wastewater may react with disinfectants supplies and aquatic life. These average concentration of TDS in shale used at water treatment plants, creating concerns and issues will not dissipate as gas wastewaters is typically 100,000 potentially harmful disinfection shale gas production is expected to ppm and can be as high as 400,000 ppm. byproducts such as trihalomethane. increase. As a result, EPA has decided Available data indicates the levels of Bromide, linked to shale gas to initiate rulemaking to decide the TDS in shale gas wastewaters can often wastewater, has been recorded in POTW appropriate level of pretreatment exceed recommended drinking water effluents in concentrations as high as standards for this industry. As noted concentrations 3 by a factor of 200. 1,100 ppm (DCN 07472 and DCN above, EPA will carefully consider the Because TDS concentrations in fresh 07481A02). SEAB’s recommendations as EPA non-brackish drinking water sources are Conclusion: develops regulatory options. typically well below the recommended Natural gas can increase our domestic As a first step in developing a drinking water levels, few drinking energy options, thus, reducing regulation, EPA will conduct extensive water treatment facilities have dependence on non-U.S. sources, and it data gathering, including site visits, technologies to remove TDS. has the potential to improve air quality, stakeholder outreach, and development Aquatic life toxicity of freshwater increase stability in energy prices, and of a national survey of the industry. contaminated with high TDS is provide greater certainty about future More specifically, EPA will visit natural dependent on the specific ionic energy reserves. Also, natural gas can gas extraction operations where composition of the water. In shale gas serve as a bridge fuel from coal to even hydraulic fracturing is occurring to wastewaters, the largest single more efficient energy sources that can obtain data directly from the well contributor to TDS is chlorides. further reduce greenhouse-gas operators on well drilling and fracturing Macroinvertebrates, and more emissions. Natural gas holds great operations, produced water specifically aquatic insects, have an potential for our energy future and for characteristics, and wastewater open circulatory system and are more our environment and EPA supports the management. In addition to the site sensitive to pollutants like chloride, commitment in the ‘‘Blueprint,’’ to visits, EPA will reach out to which at elevated exposure responsible development of this stakeholders and other affected entities concentrations, negatively affect their important domestic resource and to to identify and better understand ability to maintain the right proactively addressing the concerns that concerns regarding environmental concentration of salts and water in the have been raised regarding potential impacts associated with fracturing body, which involves excreting negative impacts associated with wastewater and potential industry metabolic wastes that would be toxic to hydraulic fracturing of shale formations. implications of the regulation. Finally, the organism if allowed to accumulate. We have heard from the public and EPA will begin the process of Based on laboratory toxicity data from environmental organizations that they developing and seeking approval to EPA’s 1988 chloride criteria document are concerned about the safety of natural distribute a nationally representative and more recent studies, invertebrate gas production and the possible impacts survey to collect information on the sensitivity to chloride acute effect shale gas industry. This survey will concentrations ranged from 953 ppm to 4 As discussed, many of the POTWs that accept assist EPA in obtaining national data on 13,691 ppm and chronic effect shale gas wastewaters blend small volumes with traditional POTW wastewaters and reduce pollutant the operations, economics, and concentrations ranged from 489 ppm to concentrations through dilution, so high wastewater characteristics associated 556 ppm. Aquatic vertebrates such as concentrations in shale gas wastewaters do not with hydraulic fracturing, as well as necessarily lead to concentrations that exceed data pertaining to available treatment 3 Two published standards regarding TDS include aquatic life criteria at the point of discharge. 5 technologies for shale gas wastewater. EPA’s secondary maximum contaminant level for While not related to shale gas wastewater, In 2010, Congress directed EPA to TDS of 500 ppm and the U.S. Public Health Service negative impacts of high TDS, including fish kills, recommendation that TDS in drinking water should were documented during 2009 at Dunkard Creek ‘‘carry out a study on the relationship not exceed 500 ppm. located in Monongalia County, Pennsylvania. between hydraulic fracturing and

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drinking water, using a credible Should the report or EPA’s identifying pollutant control and approach that relies on the best rulemaking survey, in combination with pollution prevention technologies for available science, as well as other data gathering and public the development of technology-based independent sources of information. outreach, indicate that POTWs are effluent limitations by best professional The conferees expect the study to be already adequately treating shale gas judgment (BPJ) on a facility-specific conducted through a transparent, peer- wastewater so that it is not causing pass basis. reviewed process that will ensure the through or interference with POTW (3) Not identified as a priority based validity and accuracy of the data.’’ In operations, including sludge on data available at this time (e.g., not accordance with this direction from management, EPA is open to adjusting among industries that cumulatively Congress, EPA conducted extensive its rulemaking plans accordingly. comprise 95% of discharges as stakeholder outreach to solicit advice However, EPA believes that beginning measured in units of TWPE). regarding the design of the study. In rulemaking now, and particularly the (4) EPA intends to start or continue a February 2011, EPA submitted a draft data collection necessary to support detailed study of this industry in its study plan to the Science Advisory such a rule, is an appropriate step given 2011 annual review to determine Board for peer review. In March and what we already know about wastewater whether to identify the category for May 2011, the Science Advisory Board discharges from the industry. effluent guidelines rulemaking. subcommittee met to provide peer (5) EPA is continuing or initiating a 5. Summary of 2010 Annual Review review of the EPA’s draft study plan. preliminary category review or will Findings Consistent with the operating continue to review discharges using procedures of the SAB, an opportunity The summary of the findings of the screening-level data because incomplete was provided for stakeholders and the 2010 annual review is presented below data are currently available to determine public to provide comments for the SAB in Table V–1 (see also the TSD for the whether to conduct a detailed study or to take into account during their review. final 2010 Plan for greater details). This identify for possible revision. EPA EPA is revising the study plan in table uses the following codes to typically performs a further assessment response to the SAB’s comments and describe the Agency’s findings with of the pollutant discharges before initial study results are expected by the respect to each existing industrial starting a detailed study of the end of 2012. However, certain portions category. industrial category. This assessment of the work will be long-term projects (1) Effluent guidelines or pretreatment provides an additional level of quality that are not likely to be finished at that standards for this industrial category assurance on the reported pollutant time. Additional reports of study were recently revised through an discharges and number of facilities that findings will be published as the longer- effluent guidelines rulemaking, or a represent the majority of toxic-weighted term projects progress. While the rulemaking is currently underway. Or pollutant discharges. EPA may also primary focus of this study is on EPA recently completed a preliminary develop a preliminary list of potential impacts of hydraulic fracturing on study or a detailed study, and no further wastewater pollutant control drinking water resources, including action is necessary at this time. technologies before conducting a surface water impacts, EPA will (2) Revising the national effluent detailed study. carefully review and consider any guidelines or pretreatment standards is (6) EPA is identifying this industry for relevant information that is collected to not the best tool for this industrial a revision of an existing effluent support this study. Likewise, any data category because most of the toxic and guideline. collected pursuant to this new non-conventional pollutant discharges Note that dental mercury is not rulemaking will be shared with the EPA are from one or a few facilities in this included in the analysis below, as office that is conducting the industrial category. EPA will consider dental facilities do not currently have an Congressionally-mandated study. assisting permitting authorities in effluent guideline.

TABLE V–1—FINDINGS FROM THE 2010 ANNUAL REVIEW OF EFFLUENT GUIDELINES AND PRETREATMENT STANDARDS CONDUCTED UNDER SECTION 301(d), 304(b), 304(g), AND 307(b)

Industry category No. (listed alphabetically) 40 CFR Part Findings *

1 ...... Aluminum Forming ...... 467 (3) 2 ...... Asbestos Manufacturing ...... 427 (3) 3 ...... Battery Manufacturing ...... 461 (3) 4 ...... Canned and Preserved Fruits and Vegetable Processing ...... 407 (3) 5 ...... Canned and Preserved Seafood Processing ...... 408 (3) 6 ...... Carbon Black Manufacturing ...... 458 (3) 7 ...... Cement Manufacturing ...... 411 (3) 8 ...... Centralized Waste Treatment ...... 437 (3) 9 ...... Coal Mining ...... 434 (3) 10 ...... Coil Coating ...... 465 (3) 11 ...... Concentrated Animal Feeding Operations (CAFO) ...... 412 (1) 12 ...... Concentrated Aquatic Animal Production ...... 451 (1) 13 ...... Construction and Development ...... 450 (1) 14 ...... Copper Forming ...... 468 (3) 15 ...... Dairy Products Processing ...... 405 (3) 16 ...... Electrical and Electronic Components ...... 469 (3) 17 ...... Electroplating ...... 413 (1) 18 ...... Explosives Manufacturing ...... 457 (3) 19 ...... Ferroalloy Manufacturing ...... 424 (3) 20 ...... Fertilizer Manufacturing ...... 418 (3) 21 ...... Glass Manufacturing ...... 426 (3)

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TABLE V–1—FINDINGS FROM THE 2010 ANNUAL REVIEW OF EFFLUENT GUIDELINES AND PRETREATMENT STANDARDS CONDUCTED UNDER SECTION 301(d), 304(b), 304(g), AND 307(b)—Continued

Industry category No. (listed alphabetically) 40 CFR Part Findings *

22 ...... Grain Mills ...... 406 (3) 23 ...... Gum and Wood Chemicals ...... 454 (3) 24 ...... Hospitals ...... 460 (1) 25 ...... Ink Formulating ...... 447 (3) 26 ...... Inorganic Chemicals [Note 1] ...... 415 (1) and (3) 27 ...... Iron and Steel Manufacturing ...... 420 (1) 28 ...... Landfills ...... 445 (5) 29 ...... Leather Tanning and Finishing ...... 425 (3) 30 ...... Meat and Poultry Products ...... 432 (1) 31 ...... Metal Finishing ...... 433 (1) 32 ...... Metal Molding and Casting ...... 464 (3) 33 ...... Metal Products and Machinery ...... 438 (1) 34 ...... Mineral Mining and Processing ...... 436 (5) 35 ...... Nonferrous Metals Forming and Metal Powders ...... 471 (3) 36 ...... Nonferrous Metals Manufacturing ...... 421 (2) 37 ...... Oil and Gas Extraction ...... 435 (6) 38 ...... Ore Mining and Dressing ...... 440 (2) 39 ...... Organic Chemicals, Plastics, and Synthetic Fibers [Note 1] ...... 414 (1) and (3) 40 ...... Paint Formulating ...... 446 (3) 41 ...... Paving and Roofing Materials (Tars and Asphalt) ...... 443 (3) 42 ...... Pesticide Chemicals ...... 455 (3) 43 ...... Petroleum Refining ...... 419 (3) 44 ...... Pharmaceutical Manufacturing ...... 439 (3) 45 ...... Phosphate Manufacturing ...... 422 (3) 46 ...... Photographic ...... 459 (3) 47 ...... Plastic Molding and Forming ...... 463 (5) 48 ...... Porcelain Enameling ...... 466 (3) 49 ...... Pulp, Paper, and Paperboard ...... 430 (5) 50 ...... Rubber Manufacturing ...... 428 (3) 51 ...... Soaps and Detergents Manufacturing ...... 417 (3) 52 ...... Steam Electric Power Generating ...... 423 (1) 53 ...... Sugar Processing ...... 409 (3) 54 ...... Textile Mills ...... 410 (3) 55 ...... Timber Products Processing ...... 429 (3) 56 ...... Transportation Equipment Cleaning ...... 442 (3) 57 ...... Waste Combustors ...... 444 (5) * The descriptions of the ‘‘Findings’’ codes are presented immediately prior to this table. Note 1: Two codes (‘‘(1)’’ and ‘‘(3)’’) are used for this category as both codes are applicable to this category and do not overlap. The first code (‘‘(1)’’) refers to the ongoing effluent guidelines rulemaking for the Chlorinated and Chlorinated Hydrocarbons (CCH) manufacturing sector, which includes facilities currently regulated by the OCPSF and Inorganics effluent guidelines. The second code (‘‘(3)’’) indicates that the remainder of the facilities in these two categories does not represent a hazard priority at this time.

VI. EPA’s 2010 Evaluation of Categories pretreatment programs and 13,500 small discharging facilities applying BAT. of Indirect Dischargers Without POTWs that are not required to develop Pretreatment standards for existing Categorical Pretreatment Standards To and implement pretreatment programs. sources are technology based and are Identify Potential New Categories for In addition, EPA establishes analogous to BAT effluent limitations Pretreatment Standards technology-based national regulations, guidelines. In most cases, EPA has termed ‘‘categorical pretreatment concluded that a pollutant passes A. EPA’s Evaluation of Pass Through standards,’’ for categories of industry and Interference of Toxic and Non- through the POTW when the median discharging pollutants to POTWs that percentage removed nationwide by Conventional Pollutants Discharged to may pass through, interfere with or representative POTWs (those meeting POTWs otherwise be incompatible with POTW secondary treatment requirements) is All indirect dischargers are subject to operations (CWA section 307(b)). general pretreatment standards (40 CFR Generally, categorical pretreatment less than the median percentage part 403), including a prohibition on standards are designed such that removed by facilities complying with discharges causing ‘‘pass through’’ or wastewaters from direct and indirect BAT effluent limitations guidelines for ‘‘interference’’ (See 40 CFR 403.5). All industrial dischargers are subject to that pollutant. POTWs with approved pretreatment similar levels of treatment. EPA has This approach to the definition of programs must develop local limits to promulgated such pretreatment ‘‘pass through’’ satisfies two competing implement the general pretreatment standards for 35 industrial categories. objectives set by Congress: (1) That standards. All other POTWs must One of the tools traditionally used by standards for indirect dischargers be develop such local limits where they EPA in evaluating whether pollutants equivalent to standards for direct have experienced ‘‘pass through’’ or ‘‘pass through’’ a POTW, is a dischargers; and (2) that the treatment ‘‘interference’’ and such a violation is comparison of the percentage of a capability and performance of POTWs likely to recur. There are approximately pollutant removed by POTWs with the be recognized and taken into account in 1,500 POTWs with approved percentage of the pollutant removed by

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regulating the discharge of pollutants standards, EPA retains discretion not to —Reuse or donate unused from indirect dischargers. do so where the total pounds removed pharmaceuticals when possible; The term ‘‘interference’’ means a do not warrant national regulation and return unused pharmaceuticals to the discharge which, alone or in there is not a significant concern with pharmacy; send unused conjunction with a discharge or pass through and interference at the pharmaceuticals to a reverse discharges from other sources, both: (1) POTW.’’ See 64 FR 45077 (August 18, distributor for credit and proper Inhibits or disrupts the POTW, its 1999). disposal in accordance with the treatment processes or operations, or its facility’s state environmental B. Hospitals (Part 460) (Health Care sludge processes, use or disposal; and regulations; properly identify and Industry Detailed Study of the (2) therefore is a cause of a violation of manage hazardous pharmaceutical Management of Unused any requirement of the POTW’s NPDES wastes in accordance with federal and Pharmaceuticals) permit (including an increase in the state regulations; use EPA magnitude or duration of a violation) or Pharmaceutical chemicals have been recommended practices to dispose of of the prevention of sewage sludge use detected in our nation’s waterways, non-hazardous pharmaceutical waste or disposal in compliance with leading to concerns that these at the facility; applicable regulations or permits. See compounds may affect aquatic life and —Segregate waste for disposal to ensure 40 CFR 403.3(k). To determine the possible human health through drinking regulations are met; potential for ‘‘interference,’’ EPA water sources. As a result of public —Train staff in proper disposal generally evaluates the industrial comments on the Final 2006 Effluent methods. indirect discharges in terms of: (1) The Guidelines Program Plan, EPA initiated EPA received 89 comments on the compatibility of industrial wastewaters a study of unused pharmaceutical proposed guidance on November 8, and domestic wastewaters (e.g., type of disposal practices at health care 2010 and is reviewing suggested pollutants discharged in industrial facilities. The focus of this study was on changes to the document and working wastewaters compared to pollutants disposal to water via sewers. EPA with relevant Federal Agencies to typically found in domestic studied medical facilities; including, ensure any incorporated comments are wastewaters); (2) concentrations of hospitals, hospices, long-term care consistent with other Federal laws and pollutants discharged in industrial facilities, health care clinics, physician policies. wastewaters that might cause offices, and veterinary facilities. A interference with the POTW collection standard disposal practice at many C. Dental Amalgam system, the POTW treatment system, or health care facilities is to flush unused biosolids disposal options; and (3) the In the 2008 final Plan, EPA decided pharmaceuticals down the toilet or it would not initiate an effluent potential for variable pollutant loadings drain. to cause interference with POTW limitation guideline rulemaking for Unused pharmaceuticals include discharges of dental amalgam from operations (e.g., batch discharges or slug leftover medication that is expired, not loadings from industrial facilities dentists’ offices. However, at that time dispensed, and/or partially used, and EPA indicated it would examine interfering with normal POTW residues from delivery devices. During operations). whether a significant majority of the study, EPA conducted intensive dentists began utilizing amalgam If EPA determines a category of outreach to over 700 stakeholders and indirect dischargers causes pass through separators and stated that after such evaluated a range of management or interference, EPA would then examination, EPA may re-evaluate its practices to reduce the generation of consider the BAT and BPT factors decision not to initiate an effluent unused pharmaceuticals and their (including ‘‘such other factors as the guidelines rulemaking for this sector. disposal down the drain. Based on the Administrator deems appropriate’’) After assessing the progress made information collected through the specified in section 304(b) to determine under the Memorandum of outreach, EPA has drafted a guidance whether to establish pretreatment Understanding to Reduce Dental document, ‘‘Best Management Practices standards for these activities. Examples Amalgam Discharges (MOU), and other for Unused Pharmaceuticals at Health of ‘‘such other factors’’ include a factors, EPA announced, in September Care Facilities’’. The guidance consideration of the magnitude of the 2010, it will initiate a rulemaking to hazard posed by the pollutants document was made available for a 60 control mercury associated with dental discharged as measured by: (1) The total day public review and comment as amalgam discharges to sewer systems annual TWPE discharged by the announced in a Federal Register Notice, from dental offices. published on September 8, 2010. The industrial sector; and (2) the average Background TWPE discharged among facilities that draft guidance document was posted on discharge to POTWs. Additionally, EPA the Agency’s Web site. Across the United States, many States would consider whether other In summary, the guidance and municipal wastewater treatment regulatory tools (e.g., use of local limits recommends the following practices to plants (publicly owned treatment under part 403) or voluntary measures prevent or minimize the amount of works—POTWs) are working toward the would better control the pollutant pharmaceuticals being disposed in goal of reducing discharges of mercury discharges from this category of indirect water: into sewer collection systems. Many dischargers. For example, EPA relied on —Conduct an inventory of studies have been conducted in an a similar evaluation of ‘‘pass through pharmaceuticals and pharmaceutical attempt to identify the sources of potential’’ in its prior decision not to waste to quantify the amount of mercury entering these collection promulgate national categorical medication the facility is disposing of; systems. According to the 2002 Mercury pretreatment standards for the Industrial —Reduce pharmaceutical waste by Source Control and Pollution Laundries industry. See 64 FR 45071 reviewing purchasing practices, use Prevention Program Final Report (August 18, 1999). EPA noted in this limited dose or unit dose dispensing, prepared for the National Association of 1999 final action that, ‘‘While EPA has replace pharmaceutical samples with Clean Water Agencies (NACWA), dental broad discretion to promulgate such vouchers, and perform on-going offices are the largest source of mercury [national categorical pretreatment] inventory control and stock rotation; discharges to POTWs. The American

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Dental Association (ADA) estimated in mandates and policy initiatives focus on about 500 coal-fired power 2003 that up to 50% of mercury entering designed to implement the CWA’s goals plants. The decision to revise the POTWs was caused by dental offices and the funds appropriated by Congress current effluent guidelines for this (see DCN 04698). to execute them. industry was largely driven by the high EPA estimates there are By requiring this planning process, level of toxic-weighted pollutant approximately 160,000 dentists working culminating in the publication of a plan discharges from coal fired power plants in 120,000 dental offices that use or after public notice and comment, and the expectation that these remove amalgam in the United States— Congress assured that EPA would discharges will increase significantly in almost all of which discharge their regularly re-evaluate its policy choices the next few years as new air pollution wastewater exclusively to POTWs. and priorities (including whether to controls are installed. EPA is under a Mercury in dental wastewater originates identify an activity for effluent consent decree obligation to issue a final from waste particles associated with the guidelines rulemaking) to account for rule for this industry in 2014. placement and removal of amalgam changed circumstances. Ultimately, • Chlorine and Chlorinated fillings. Most dental offices currently however, Congress left the content of Hydrocarbons Manufacturing—EPA is use some type of basic filtration system the plan to EPA’s discretion—befitting currently conducting a rulemaking to to reduce the amount of mercury solids the role that effluent guidelines play in potentially revise existing effluent passing into the sewer system. However, the overall structure of the CWA and guidelines and pretreatment standards best management practices and the their relationship to other tools for for the following categories: Organic installation of amalgam separators, addressing water pollution. Chemicals, Plastics and Synthetic Fibers which generally have a removal (OCPSF) and Inorganic Chemicals (to efficiency of 95% or greater, can reduce A. EPA’s Schedule for Annual Review address discharges from Vinyl Chloride discharges even further. A recent study and Revision of Existing Effluent and Chlor-Alkali facilities identified for funded by NACWA (see DCN 04225) Guidelines under Section 304(b) effluent guidelines rulemaking in the concluded that the use of amalgam 1. Schedule for 2011 and 2012 Annual final 2004 Plan, now termed the separators results in reductions in Reviews Under Section 304(b) ‘‘Chlorine and Chlorinated Hydrocarbon POTW influent concentrations and (CCH) manufacturing’’ rulemaking). biosolids mercury concentrations. As noted in section IV.B, CWA EPA previously indicated it would In December, 2008 EPA entered into section 304(m)(1)(A) requires EPA to conduct an industry survey for this the MOU with NACWA and ADA. The publish a biennial plan that establishes effluent guidelines rulemaking (April purpose of the MOU was to estimate the a schedule for the annual review and 18, 2006; 71 FR 19887). EPA is number of dental facilities with revision, in accordance with section considering its next steps for this survey amalgam separators installed, establish 304(b), of the effluent guidelines that and the rulemaking as it reviews data interim goals for increases in the EPA has promulgated under that from a voluntary industry monitoring number of separators voluntarily section. Today’s plan announces EPA’s program. EPA worked with industry to installed, and conduct outreach to schedule for performing its section develop the extensive monitoring dentists. 304(b) reviews for 2011 and 2012. The program to better understand the EPA learned from several states that schedule is to coordinate its annual category’s dioxin discharges. their efforts to increase the number of review of existing effluent guidelines In addition, EPA is today announcing amalgam separator installations on a under section 304(b) with its initiation of an effluent limitations voluntary basis were largely publication of preliminary and final guideline (ELG) rulemaking to revise the unsuccessful. Additionally, several Effluent Guidelines Program Plans following existing guidelines: environmental organizations have urged under CWA section 304(m). In other • Oil and Gas Extraction—As EPA to establish pretreatment standards words, in odd-numbered years, EPA explained in Section V.B.2, EPA is for dental amalgam. The Quicksilver intends to complete its annual review initiating a rulemaking for Coalbed Caucus commented on the preliminary upon publication of the preliminary Methane Extraction, a currently 2010 Plan requesting that EPA initiate a Effluent Guidelines Program Plan that unregulated subcategory of the Oil and rulemaking to establish pretreatment EPA must publish for public review and Gas Extraction Point Source Category. standards for discharges of dental comment under CWA section 304(m)(2). Because of concern over high TDS levels amalgam. In even-numbered years, EPA intends to in the wastewater for Coalbed, Given the human health and aquatic- complete its annual review upon the availability of treatment technologies, life impacts associated with mercury, publication of the final Plan. EPA’s 2011 and the fact that Coalbed Methane the level of stakeholder interest, and the annual review is the review cycle production will continue to grow, EPA availability of a technological solution, ending upon the publication of the believes the initiation of a rulemaking to EPA decided to initiate rulemaking to preliminary Plan in 2011 and its 2012 address direct discharges to surface develop pretreatment standards for annual review is the review cycle waters and discharges to POTWs is dental mercury to more thoroughly and ending upon publication of the 2012 appropriate. expeditiously address this water final Plan. B. Identification of Point Source pollution problem. 2. Schedule for Revision of Effluent Categories Under CWA Section VII. The Final 2010 Effluent Guidelines Guidelines Promulgated Under Section 304(m)(1)(B) Program Plan 304(b) The Effluent Guidelines Program Plan EPA views the effluent guidelines Currently, EPA is engaged in effluent must identify categories of sources planning process as a mechanism limitations guideline (ELG) rulemakings discharging non-trivial amounts of toxic designed to promote regular and to revise the following existing or non-conventional pollutants for transparent priority-setting on the part guidelines: which EPA has not published effluent of the Agency. A plan is ultimately a Steam Electric Power Generation— limitations guidelines under section statement of choices and priorities. this rulemaking involves the revision of 304(b)(2) or new source performance These priorities necessarily need to take an existing ELG for about 1200 power- standards NSPS) under section 306. See into account all the other statutory generating facilities with a particular CWA section 304(m)(1)(B). The Plan

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must also establish a schedule for the to identify in the Plan only those extraction, availability of treatment promulgation of effluent guidelines for potential new categories for which an technologies, and the fact that shale gas the categories identified under section effluent guidelines rulemaking may be extraction production will continue to 304(m)(1)(B) not later than three years an appropriate tool for controlling grow, EPA believes the initiation of a after such identification. See CWA discharges. Therefore, EPA does not rulemaking to address discharges to section 304(m)(1)(C). EPA is currently identify in the Plan all potential new POTWs is appropriate. taking the following actions on new categories discharging toxic and non- industry categories: conventional pollutants. Rather, EPA D. Current Rulemakings • Airport De-icing—This final ELG identifies only those potential new Airport Deicing and Steam Electric rulemaking addresses the environmental categories for which it believes that Power Generation: impact of aircraft and airfield deicing effluent guidelines may be appropriate, Schedules fluid on the environment at the about taking into account Agency priorities, 200 airports in this country that conduct resources and the full range of other Airport Deicing: deicing operations. This rule is CWA tools available for addressing —Final ELG Rule—Fall 2011 complicated by the shared industrial discharges. In this Plan, EPA Steam Electric Power Generation: responsibility for deicing operations is not identifying for rulemaking any —Proposed Rule—July 2012 between the airports and the airlines new categories discharging toxic and —Final Rule—January 2014 that use them. EPA currently plans to non-conventional pollutants. E. New Rulemakings issue a final rule for this category in EPA is continuously investigating and 2011. solicits comment on how to improve its Dental Amalgam • Drinking Water Treatment analyses (see section IX. Request for Schedule to Develop the Regulation for Industry—EPA is not at this time Comment and Information for the 2011 Dental Amalgam: continuing its effluent guidelines Annual Reviews). —Proposed Rule—October 2011 rulemaking for the Drinking Water —Final Rule—October 2012 Treatment industry. In the 2004 Plan, C. Identification of Guidelines for EPA announced that it would begin Pretreatment of Pollutants under CWA Coalbed Methane Extraction development of a regulation to control Section 304(g)(1) and 307(b)(1) Schedule to Develop the Regulation for the pollutants discharged from drinking EPA has decided to initiate Coalbed Methane Extraction: water treatment plants. See 69 FR 53720 rulemaking for two industries to address —Proposed Rule—2013 (September 2, 2004). Based on a their indirect industrial discharges to Shale Gas Extraction preliminary study and on public POTWs. This includes the indirect comments, EPA was interested in the discharge of dental amalgam from Schedule to Develop the Regulation for potential volume of discharges dental offices and wastewater from Shale Gas Extraction: associated with drinking water facilities. shale gas extraction to publicly owned —Proposed Rule—2014 The preliminary data were not treatment works (POTWs) that may These Agency decisions, conclusive, and the Agency proceeded cause pass-through, interfere with, or announcements and the studies with additional study and analysis of are otherwise incompatible with described previously fulfill EPA’s treatability, including an industry POTWs. obligations to annually review both survey. After considering extensive With regard to dental amalgam existing effluent limitations guidelines information about the industry, its discharges from dental offices, EPA was for direct dischargers and existing treatment residuals, wastewater asked by some states and environmental pretreatment standards for indirect treatment options, and discharge groups to revisit its 2008 decision not to dischargers under CWA sections 304(b) characteristics, and after considering initiate rulemaking for this industry. and (g), as well as other review other priorities, EPA has suspended Dental amalgam contains mercury, requirements under CWA section 301(d) work on this rulemaking. which is a concern to human health and 307(b). The ELG Program is also developing because mercury is a persistent, the cooling water intake existing facility bioaccumulative toxic element. EPA VIII. EPA’s 2011 Annual Review of rule—Under section 316(b) of the CWA, estimates that dentists discharge Existing Effluent Guidelines and EPA plans to issue a final rule in 2012 approximately 3.7 tons of mercury each Pretreatment Standards Under CWA addressing the withdrawal of trillions of year to publicly owned treatment works. Sections 301(d), 304(b), 304(g), 304(m) aquatic organisms from waters of the In addition, EPA has not seen and 307(b) U.S. by about 1260 power plants and significant increases in the installation This notice also provides EPA’s manufacturing facilities which of amalgam separators under current preliminary thoughts concerning its withdraw water for cooling purposes. voluntary efforts. Consequently, EPA 2011 annual reviews under CWA Also for the 2010 Plan, EPA is issuing has decided to initiate rulemaking sections 304(b) and 304(g) as well as its the detailed study report for the coalbed which will reduce mercury discharges reviews under 301(d) and 307(b) and methane industry and is issuing the from dental facilities more completely, solicits comments, data and information preliminary study report for the Ore and in a more predictable timeframe to assist EPA in performing these Mining and Dressing industry, and will than has been demonstrated through reviews. be taking no further action on this voluntary means alone. industry at this time. EPA initiated a EPA also is initiating rulemaking for A. Schedule for the 2011 Annual preliminary study of cellulose shale gas extraction, another Reviews Under Section 304(b) manufacturers in the Plastic Molding subcategory of the Oil and Gas As noted in section IV.B, CWA and Forming category (part 463) due, in Extraction Point Source Category, which section 304(m)(1)(A) requires EPA to part, to high carbon disulfide discharges is now subject to effluent guidelines publish a Plan every two years that which were revealed during the 2010 under this Category but not to establishes a schedule for the annual review. applicable pretreatment standards. review and revision, in accordance with Finally, EPA interprets section Because of concern over high TDS levels section 304(b), of the effluent guidelines 304(m)(1)(B) to give EPA the discretion in the wastewater for shale gas that EPA has promulgated under that

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section. This final 2010 Plan announces detailed discussion of EPA’s analysis pretreatment standards. Specifically, EPA’s schedule for performing its supporting the reviews in this notice EPA solicits wastewater characterization section 304(b) reviews in 2011. (see DCN 07320). data (e.g., wastewater volumes, The schedule is as follows: EPA will EPA is also soliciting comments on concentrations of discharged coordinate its annual review of existing ways to enhance its Plan analysis. In pollutants), current examples of effluent guidelines with its publication particular: Are there new or additional pollution prevention, treatment of the preliminary and final Plans under factors that should be brought to bear for technologies, and local limits for all CWA section 304(m). In other words, in screening existing industries for industries without pretreatment odd-numbered years, EPA intends to revisions to their current guidelines? standards. EPA also solicits comment on complete its annual review upon Are there approaches that could be used whether there are industrial sectors publication of the preliminary Plan that to better identify new industries that discharging pollutants that cause EPA must publish for public review and currently do not have guidelines that interference issues that cannot be comment under CWA section 304(m)(2). should? EPA is interested in receiving adequately controlled through the In even-numbered years, EPA intends to comment on all aspects of its current general pretreatment standards. Finally, complete its annual review upon the methodology. EPA solicits comment on how better to publication of the final Plan. EPA’s 2010 access and aggregate discharge data annual review is the review cycle 2. Climate Change and Water Efficiency reported to local pretreatment programs. ending upon the publication of this final EPA solicits comments, and data and Currently, pollutant discharge data are 2010 Plan. information on whether the actions collected by the local pretreatment EPA is coordinating its annual described under this Plan will have program to demonstrate compliance reviews with publication of Plans under effects on water conservation or on with pretreatment standards and local section 304(m) for several reasons. First, climate change. In particular, will limits but are not typically the annual review is inextricably linked certain technologies or actions help to electronically transmitted to the States to the planning effort, because the conserve water, and thereby energy and or EPA Regions. results of each annual review can thus reduce the consumption of fossil 6. Data and Information on Discharges inform the content of the preliminary fuels, or will the actions envisioned by of Pollutants From Waste Combustors and final Plans, e.g., by identifying this plan waste water and/or energy candidates for effluent guidelines resources. Likewise, will the actions and EPA solicits data and information on revision for which EPA can schedule potential industry changes discharges of wastewater from waste rulemaking in the Plan, or by calling to contemplated by this Plan result in combustors. DMR data suggest the EPA’s attention point source categories greater emission of green house gases, or consistent discharge of metals and for which EPA has not promulgated are there opportunities for industry to possible discharge of pesticides from effluent guidelines. Second, even reduce green house gas emissions. waste combustors. EPA’s analysis for though not required to do so under the 2010 ELG Final Plan shows that either section 304(b) or section 304(m), 3. BPJ Permit-Based Support pesticides are discharged at EPA believes that the public interest is EPA solicits comments on whether, concentrations below limits of served by periodically presenting to the and if so, how the Agency should detection. EPA is requesting information public a description of each annual provide EPA Regions and States with on waste combustors metals and review (including the review process permit-based support instead of revising pesticide discharges, to determine if employed) and the results of the review. effluent guidelines (e.g., when the vast they are present at concentrations below Doing so at the same time EPA majority of the hazard is associated with treatable levels. publishes preliminary and final plans one or a few facilities). EPA solicits 7. Data and Information on Discharges makes both processes more transparent. comment on categories for which the of Pollutants From Shale Gas Extraction Third, by requiring EPA to regularly Agency should provide permit-based review all existing effluent guidelines, support. EPA solicits data and information on Congress appears to have intended that the pollutants generated by the Shale each successive review would build 4. Implementation Issues Related to Gas extraction industry. In particular upon the results of earlier reviews. Existing Effluent Guidelines and EPA is soliciting data and information Therefore, by describing the 2010 Pretreatment Standards on the type of pollutants in shale gas annual review along with the final 2010 As a factor in its decision-making, wastewaters, including the type and final Plan, EPA hopes to gather and EPA considers opportunities to toxicity of additives, the volumes of receive data and information that will eliminate inefficiencies or impediments flowback and concentrations of the inform its reviews for 2011 and 2012 to pollution prevention or technological pollutants in the flowback, the fate and and the final 2012 Plan. innovation, or opportunities to promote transport of pollutants to ground waters, innovative approaches such as water and data and information on the pass- IX. Request for Comment and quality trading, including within-plant through of pollutants at publicly owned Information for the 2011 Annual trading. Consequently, EPA solicits treatment works (POTWs). EPA also Reviews comment on implementation issues solicits documented impacts of these A. EPA Requests Information on related to existing effluent guidelines pollutants on aquatic life and human and pretreatment standards. health. 1. Data Sources and Methodologies EPA solicits comments on whether 5. EPA’s Evaluation of Categories of 8. Data and Information on Discharges EPA used the correct evaluation factors, Indirect Dischargers Without Categorical of Nanosilver From Industrial criteria, and data sources in conducting Pretreatment Standards To Identify Manufacturing its annual review and developing this Potential New Categories for Nanosilver is becoming a more final Plan. EPA also solicits comment on Pretreatment Standards commonly used substance in industrial other data sources EPA can use in its EPA solicits comments on its materials and commercial products as annual reviews and biennial planning evaluation of categories of indirect an active pesticide ingredient. In some process. Please see the docket for a more dischargers without categorical uses, fabric is impregnated with

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nanosilver as an anti-microbial during Parties: A.P. Moller-Maersk A/S, CMA standards in section 4 of the BHC Act manufacturing and nanosilver CGM S.A., and Mediterranean Shipping (12 U.S.C. 1843). Unless otherwise discharges may result. In other Company S.A. noted, nonbanking activities will be applications, nanosilver is used as a Filing Party: Wayne R. Rohde, Esq.; conducted throughout the United States. preservative in textile products which Cozen O’Connor; 1627 I Street, NW., Unless otherwise noted, comments could also lead to nanosilver discharges. Suite 1100, Washington, DC 20006. regarding each of these applications Other products, such as household Synopsis: The Amendment provides must be received at the Reserve Bank washing machines, are being for a further slot exchange between indicated or the offices of the Board of manufactured with the washer drum Maersk Line and MSC with Governors not later than November 21, coated with nanosilver polymers to kill corresponding changes in the 2011. bacteria during clothes laundering. Agreement and delays the introduction A. Federal Reserve Bank of Atlanta Since many of the nanosilver of a service loop. (Chapelle Davis, Assistant Vice applications have the potential to create Agreement No.: 012142. President) 1000 Peachtree Street, NE., a source of silver in wastewater Title: Vessel Sharing Agreement for Atlanta, Georgia 30309: discharges from industries using Transpacific Service between Hainan 1. Raymond James Financial, Inc., St. nanosilver in the manufacture of P O Shipping Co., Ltd. and T.S. Lines. Petersburg, Florida; to become a bank products, or use of products containing Parties: Hainan P O Shipping Co., Ltd. holding company by acquiring 100 nanosilver, EPA is interested in and T.S. Lines Ltd. percent of the voting shares of Raymond gathering as much information as Filing Party: Neal A. Mayer, Esq.; James Bank, FSB, St. Petersburg, possible on the fate, transport and Hoppel, Mayer, & Coleman; 1050 Florida, to be named Raymond James effects of nanosilver on the aquatic Connecticut Avenue, NW., 10th Floor, Bank, N.A., upon its conversion to a environment and human health. Washington, DC 20036. national bank. EPA is soliciting data and information Synopsis: The agreement authorizes B. Federal Reserve Bank of Kansas on the manufacture, use, and the parties to share vessel space in the City (Dennis Denney, Assistant Vice environmental release of silver trade between U.S. West Coast ports and President) 1 Memorial Drive, Kansas materials, including nanosilver. EPA is ports in China and Korea. City, Missouri 64198–0001: requesting information on the 1. Bluechip Bancshares, LLC, manufacturing of silver materials, By Order of the Federal Maritime Oklahoma City, Oklahoma; to become a Commission. bank holding company by acquiring 100 including: Dated: October 21, 2011. —Raw silver products, such as colloidal percent of the voting shares of Elmore Karen V. Gregory, City Bancshares, Inc., and First State nanosilver; Secretary. —Intermediates such as polymers or Bank, both in Elmore City, Oklahoma. [FR Doc. 2011–27706 Filed 10–25–11; 8:45 am] fibers embedded with silver, Board of Governors of the Federal Reserve nanosilver, or silver compounds; and BILLING CODE 6730–01–P System. —End products, such as silver- Dated: October 21, 2011. embedded textile and plastic Robert deV. Frierson, products, or appliances with FEDERAL RESERVE SYSTEM Deputy Secretary of the Board. nanosilver coated surfaces. Formations of, Acquisitions by, and [FR Doc. 2011–27675 Filed 10–25–11; 8:45 am] Dated: October 20, 2011. Mergers of Bank Holding Companies BILLING CODE 6210–01–P Nancy K. Stoner, Acting Assistant Administrator for Water. The companies listed in this notice [FR Doc. 2011–27742 Filed 10–25–11; 8:45 am] have applied to the Board for approval, FEDERAL RETIREMENT THRIFT pursuant to the Bank Holding Company BILLING CODE 6560–50–P INVESTMENT BOARD Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR part Employee Thrift Advisory Council 225), and all other applicable statutes FEDERAL MARITIME COMMISSION and regulations to become a bank TIME AND DATE: 2 p.m. (EST), November 15, 2011. Notice of Agreements Filed holding company and/or to acquire the assets or the ownership of, control of, or PLACE: 4th Floor, Conference Room, The Commission hereby gives notice the power to vote shares of a bank or 1250 H Street, NW., Washington, DC. of the filing of the following agreements bank holding company and all of the STATUS: Open. under the Shipping Act of 1984. banks and nonbanking companies MATTERS TO BE CONSIDERED: Interested parties may submit comments owned by the bank holding company, 1. Approval of the minutes of the on the agreements to the Secretary, including the companies listed below. April 18, 2011 meeting. Federal Maritime Commission, The applications listed below, as well 2. Report of the Executive Director on Washington, DC 20573, within ten days as other related filings required by the Thrift Savings Plan status: of the date this notice appears in the Board, are available for immediate (a) Updated TSP statistics. Federal Register. Copies of the inspection at the Federal Reserve Bank (b) Update on implementation of Roth agreements are available through the indicated. The application also will be TSP accounts. Commission’s Web site (http:// available for inspection at the offices of 3. Legislation: www.fmc.gov) or by contacting the the Board of Governors. Interested (a) Update on Board Member Office of Agreements at (202) 523–5793 persons may express their views in nominations. or [email protected]. writing on the standards enumerated in (b) Nonappropriated Fund status. Agreement No.: 012032–008. the BHC Act (12 U.S.C. 1842(c)). If the (c) 3-year statute of limitations for Title: CMA CGM/MSC/Maersk Line proposal also involves the acquisition of claims against the TSP. North and Central China-U.S. Pacific a nonbanking company, the review also (d) IRS Levy. Coast Two-Loop Space Charter, Sailing includes whether the acquisition of the (e) TSP contributions from terminal and Cooperative Working Agreement. nonbanking company complies with the Annual Leave.

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4. New Business. (2) the accuracy of the estimated AN) Women Living in Rural and CONTACT PERSON FOR MORE INFORMATION: burden; (3) ways to enhance the quality, Frontier Indian Country (In Community Thomas J. Trabucco, Director, Office of utility, and clarity of the information to Spirit Program). The In Community External Affairs, (202) 942–1640. be collected; and (4) the use of Spirit Program is an initiative automated collection techniques or comprising three types of program Dated: October 24, 2011. other forms of information technology to components being implemented with Thomas K. Emswiler, minimize the information collection women in AI/AN communities for HIV General Counsel, Federal Retirement Thrift burden. prevention: (1) Community awareness, Investment Board. To obtain copies of the supporting (2) capacity building, and (3) prevention [FR Doc. 2011–27886 Filed 10–24–11; 4:15 pm] statement and any related forms for the education. The multisite evaluation will BILLING CODE 6760–01–P proposed paperwork collections provide data on the content and context referenced above, e-mail your request, of programs and the outcomes of including your address, phone number, program activities on participant DEPARTMENT OF HEALTH AND OMB number, and OS document knowledge and behavior related to HUMAN SERVICES identifier, to sexual health. [email protected], or call The multisite evaluation is comprised [Document Identifier: OS–0990-New; 30-Day the Reports Clearance Office on (202) of two main activities across three Notice] 690–5683. Send written comments and program components: (1) Surveys and Agency Information Collection recommendations for the proposed (2) key informant interviews. There are Request, 30-Day Public Comment information collections within 30 days two versions of key informant Request of this notice directly to the OS OMB interviews: baseline and follow-up. Desk Officer; faxed to OMB at 202–395– There are also two versions of the AGENCY: Office of the Secretary, HHS. 5806. survey: (1) Community Awareness In compliance with the requirement Proposed Project: Multisite Evaluation Version for administration with women of section 3506(c)(2)(A) of the of the In Community Spirit Program— targeted through the community Paperwork Reduction Act of 1995, the Prevention of HIV/AIDS for Native/ awareness activities and (2) Prevention Office of the Secretary (OS), Department American Indian and Alaska Native Education Version to be administered to of Health and Human Services, is Women Living in Rural and Frontier women who receive prevention publishing the following summary of a Indian Country (NEW)—OMB No. 0990– education through the program. proposed collection for public NEW—Office on Women’s Health The average annual respondent comment. Interested persons are invited (OWH). burden is estimated below. The estimate to send comments regarding this burden Abstract: The Office on Women’s reflects the average annual number of estimate or any other aspect of this Health (OWH), within the Office of the respondents, the average annual number collection of information, including any Assistant Secretary for Health, will of responses, the time it will take for of the following subjects: (1) The conduct the Multisite Evaluation of the each response, and the average annual necessity and utility of the proposed In Community Spirit Program— burden across 3 years of OMB clearance, information collection for the proper Prevention of HIV/AIDS for Native/ which includes 2 years of data performance of the agency’s functions; American Indian and Alaska Native (AI/ collection.

ESTIMATED ANNUALIZED BURDEN TABLE

Number of Number of responses per Average bur- Total burden Form Type of respondent respondents respondent per den per re- hours year sponse (hrs)

Key Informant Interviews ...... Agency Provider (Administrator) ..... 6 1 45/60 5 Key Informant Interviews ...... Agency Staff (Health Educators and 24 1 45/60 18 Support Workers). HEAL Survey—Community Aware- Community Member ...... 900 0 .5 15/60 113 ness. HEAL Survey—Prevention Edu- Community Member ...... 1200 1.5 15/60 450 cation.

Total ...... 2130 ...... 586

Mary Forbes, DEPARTMENT OF HEALTH AND Office of the Secretary (OS), Department Office of the Secretary, Paperwork Reduction HUMAN SERVICES of Health and Human Services, is Act Clearance Officer. publishing the following summary of a [Document Identifier OS–0990–New; 30-day proposed collection for public [FR Doc. 2011–27733 Filed 10–25–11; 8:45 am] notice] BILLING CODE 4150–33–P comment. Interested persons are invited Agency Information Collection to send comments regarding this burden Request, 30-Day Public Comment estimate or any other aspect of this Request collection of information, including any of the following subjects: (1) The AGENCY: Office of the Secretary, HHS. necessity and utility of the proposed In compliance with the requirement information collection for the proper of section 3506(c)(2)(A) of the performance of the agency’s functions; Paperwork Reduction Act of 1995, the (2) the accuracy of the estimated

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burden; (3) ways to enhance the quality, Abstract: This request is to seek solution providers to follow. We utility, and clarity of the information to generic clearance for the collection of anticipate that approximately 100 be collected; and (4) the use of routine information requested of challenges would be issued each year by automated collection techniques or responders to solicitations the Federal HHS, with an average of 15 submissions other forms of information technology to government makes during the issuance to each challenge solicitation. It is minimize the information collection of challenges and competitions posted expected that other federal agencies will burden. on the General Service Administration issue a similar number of challenges. To obtain copies of the supporting (GSA)’s Challenge.gov Web site. Since There is no set schedule for the issuance statement and any related forms for the passage of the America COMPETES Act of challenges; they are developed and proposed paperwork collections of 2011, challenge competitions are issued on an ‘‘as needs’’ basis in referenced above, e-mail your request, increasingly being used by Federal including your address, phone number, response to issues the federal agency agencies to solve complex problems and wishes to solve. The respondents to the OMB number, and OS document obtain innovative solutions. In this role, identifier, to challenges, who are participating the Federal government places a voluntarily, are unlikely to reply to [email protected], or call description of a problem and parameters the Reports Clearance Office on (202) more than one or several of the of the solution on the Challenge.gov challenges. 690–5683. Send written comments and Web site. The solutions are evaluated by recommendations for the proposed the submitting agency and typically Although in recent memoranda the information collections within 30 days prizes (monetary and non-monetary) are GSA and Office of Management and of this notice directly to the OS OMB awarded to the winning entries. Budget (OMB) described circumstances Desk Officer; faxed to OMB at 202–395– whereby OMB approval of a PRA This clearance applies to challenges 5806. request is not needed, program officials Proposed Project: Descriptive posted on Challenge.gov which uses a at HHS have identified several sets of information of solutions provided to the common platform for the solicitation of information that will typically need to Federal government in response to challenges from the public. Each agency Challenge and Competition solicitations designs the criteria for its solicitations be requested of solution providers to posted on Challenge.gov—OMB No. based on the goals of the challenge and enable the solutions to be adequately 0990–NEW—Immediate Office of the the specific needs of the agency. There evaluated by the federal agency issuing Secretary. is no standard submission format for the challenge.

ESTIMATED ANNUALIZED BURDEN TABLE

Average Number of Number of burden Total burden Forms Type of respondent respondents responses per (in hours) hours respondent per response

Challenge Template A ...... Individuals or Households ...... 500 1 20/60 166.6 Challenge Template A ...... Organizations ...... 500 1 20/60 166.6 Challenge Template A ...... Businesses ...... 500 1 20/60 166 .6 Challenge Template A ...... State, territory, tribal or local gov- 30 1 20/60 10 ernments. Challenge Template A ...... Federal government ...... 30 1 20/60 10

Total ...... 1560 ...... 519 .8

Mary Forbes, SUMMARY: October 31, 2011 marks the October 31, 2011: Announcement of Office of the Secretary, Paperwork Reduction national release of the Healthy People the LHI App Challenge at the 139th Act Clearance Officer. 2020 leading health indicators (LHIs). Annual APHA Meeting. [FR Doc. 2011–27730 Filed 10–25–11; 8:45 am] The LHIs were developed to March 16, 2012: Deadline for BILLING CODE 4150–03–P communicate high-priority health issues Submissions. to the public, and actions that can be April 10, 2012: Winners will be taken to address them. The Office of announced during the 2012 Health DEPARTMENT OF HEALTH AND Disease Prevention and Health Promotion Summit in Washington, DC. Promotion, in partnership with Health HUMAN SERVICES ADDRESSES: Registration opens on 2.0 and the Office of the National challenge.gov and http://www: Coordinator of Health IT, is launching Announcement of Requirements and health2challenge.org. Registration for Leading Health an LHI App Challenge to encourage FOR FURTHER INFORMATION CONTACT: Indicators App Challenge teams of developers and health Silje professionals to build an application Lier, MPH, Communication and eHealth AGENCY: Department of Health and that addresses one or more LHI topics Service Fellow, Office of Disease Human Services, Office of the Secretary, on a community level. The overall Prevention and Health Promotion, [email protected], 240–453–6113. Office of the Assistant Secretary for purpose of the Challenge is to provide Health, Office of Disease Prevention and public health practitioners, business, SUPPLEMENTARY INFORMATION: Health Promotion. elected officials, clinicians and the Subject of Challenge Competition: public with applications to help achieve Leading Health Indicators App ACTION: Notice. national priority health goals. Challenge. DATES: Effective on October 31, 2011. Eligibility Rules for Participating in Authority: 15 U.S.C. 3719. Important dates include the following: the Competition:

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To be eligible to win a prize under $10,000. The second place winner will solicited to inform our Comparative this challenge, an individual or entity— receive $3,000. And the third place Effectiveness Review of Biologic and (1) Shall have registered to participate winner will receive $2,000. Winners Nonbiologic Systemic Agents and in the competition under the rules will be invited to demonstrate their Phototherapy for Treatment of Chronic promulgated by HHS; apps at the 2012 Health Promotion Plaque Psoriasis, which is currently (2) Shall have complied with all the Summit in Washington, DC. being conducted by the Evidence-based requirements under this section; Basis Upon Which Winner Will be Practice Centers for the AHRQ Effective (3) In the case of a private entity, shall Selected: Health Care Program. Access to be incorporated in and maintain a Challenge submissions will be published and unpublished pertinent primary place of business in the United reviewed by a panel of judges with scientific information on this device States, and in the case of an individual, relevant expertise in health IT and in will improve the quality of this whether participating singly or in a Healthy People 2020. Winners will be comparative effectiveness review. group, shall be a citizen or permanent selected based on the following criteria: AHRQ is requesting this scientific resident of the United States; and (1) Easy Access and Navigation. information and conducting this (4) May not be a Federal entity or (2) Platform Neutrality. comparative effectiveness review Federal employee acting within the (3) User Appeal. pursuant to Section 1013 of the scope of their employment. (4) Innovative Design. Medicare Prescription Drug, (5) Shall not be an HHS employee (5) Broad Applicability. Improvement, and Modernization Act of working on their applications or (6) Integration of Health Data. 2003, Public Law 108–173. submissions during assigned duty (7) Evidence of Co-Design and DATES: Submission Deadline on or hours. Collaboration. before November 25, 2011. (6) Shall not be in the reporting chain Judges will also award bonus points ADDRESSES: Online submissions: http:// of Dr. Howard Koh in the Office of the to submissions that align with Section effectivehealthcare.AHRQ.gov/ Assistant Secretary for Health. 508 of the Rehabilitation Act of 1973, index.cfm/submit-scientific-information (7) Federal grantees may not use and ones that incorporate plain -packets/. Please select the study for Federal funds to develop COMPETES language and health literacy principles. which you are submitting information Act challenge applications unless Award Approving Official: Carter from the list of current studies and consistent with the purpose of their Blakey, Acting Director, Office of complete the form to upload your grant award. Disease Prevention and Health (8) Federal contractors may not use documents. Promotion. E-mail submissions: [email protected] Federal funds from a contract to develop Additional Information: The Healthy (please do not send zipped files—they COMPETES Act challenge applications People Web site, http://www. are automatically deleted for security or to fund efforts in support of a HealthyPeople.gov, contains objectives, reasons). COMPETES Act challenge submission. targets, and baseline data for all of the Print submissions: Robin Paynter, An individual or entity shall not be Healthy People 2020 topic areas. From Oregon Health and Science University, deemed ineligible because the healthypeople.gov, challenge Oregon Evidence-based Practice Center, individual or entity used Federal participants will also be able to access 3181 SW. Sam Jackson Park Road, Mail facilities or consulted with Federal the corresponding leading health Code: BICC, Portland, OR 97239–3098. employees during a competition if the indicators from the HHS Health FOR FURTHER INFORMATION CONTACT: facilities and employees are made Indicators Warehouse. Robin Paynter, Research Librarian, available to all individuals and entities Dated: October 18, 2011. participating in the competition on an Telephone: 503–494–0147 or E-mail: Carter Blakey, equitable basis. [email protected]. Challenge participants will be Acting Director, Office of Disease Prevention SUPPLEMENTARY INFORMATION: In expected to sign a liability release as and Health Promotion. accordance with Section 1013 of the part of the contest registration process. [FR Doc. 2011–27681 Filed 10–25–11; 8:45 am] Medicare Prescription Drug, The liability release will use the BILLING CODE 4150–32–P Improvement, and Modernization Act of following language: 2003, Public Law 108–173, the Agency for Healthcare Research and Quality has By participating in this competition, I agree DEPARTMENT OF HEALTH AND commissioned the Effective Health Care to assume any and all risks and waive claims HUMAN SERVICES against the Federal Government and its (EHC) Program Evidence-based Practice related entities, except in the case of willful Centers to complete a comparative Agency for Healthcare Research and effectiveness review of the evidence for misconduct, for any injury, death, damage, or Quality loss of property, revenue, or profits, whether Biologic and Nonbiologic Systemic direct, indirect, or consequential, arising Scientific Information Request on Agents and Phototherapy for Treatment from my participation in this prize contest, Phototherapy for Treatment of Chronic of Chronic Plaque Psoriasis. whether the injury, death, damage, or loss The EHC Program is dedicated to Plaque Psoriasis arises through negligence or otherwise. identifying as many studies as possible Registration Process for Participants: AGENCY: Agency for Healthcare Research that are relevant to the questions for Participants can register for the and Quality (AHRQ), HHS. each of its reviews. In order to do so, we Challenge by visiting http://www. ACTION: Request for scientific are supplementing the usual manual health2challenge.org or http://www. information submissions. and electronic database searches of the challenge.gov. Registration will be open literature by systematically requesting from October 31, 2011 to March 15, SUMMARY: The Agency for Healthcare information (e.g., details of studies 2012. Research and Quality (AHRQ) is seeking conducted) from medical device Amount of the Prize: scientific information submissions from industry stakeholders through public Challenge winners will be provided manufacturers of Phototherapy medical information requests, including via the monetary cash prizes, totaling $15,000. devices for treatment of chronic plaque Federal Register and direct postal and/ The first place winner will receive psoriasis. Scientific information is being or online solicitations. We are looking

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for studies that report on phototherapy Key Questions PAST score, Patient’s Assessment of for treatment of chronic plaque Proposed Key Questions (KQs) were Global Improvement, PGA, and psoriasis, including those that describe posted for public comments and were individual symptom improvement) and adverse events, as specified in the key modified with consideration of the final health outcomes (mortality, questions detailed below. The entire comments received. Since controversy HRQoL [e.g., DLQI, HAQ–DI, EQ–5D] research protocol, including the key surrounds the classification of psoriasis and other patient-reported outcomes, questions, is also available online at: as mild or moderate-to-severe, MACE, diabetes, and psychological http://effectivehealthcare.AHRQ.gov/ moderate-to-severe disease was not comorbidities [e.g., depression, index.cfm/search-forouides-reviews-and included as an explicit inclusion suicide])? -reports/?pageaction=displayproduct& criterion in the systematic search of the Question 2 productid=793. literature or in the comparative In patients with chronic plaque This notice is a request for industry effectiveness review. As suggested in stakeholders to submit the following: psoriasis, what is the comparative safety the public comments, we will consider of systemic biologic agents and systemic • A current product label, if when evaluating efficacy data whether applicable (preferably an electronic PDF nonbiologic agents (between-class patients were naı¨ve to biologics, were comparisons) or phototherapy file). treated previously with biologics, or • (hepatotoxicity [e.g., AST, ALT], Information identifying published were allowed drug holidays. Although a nephrotoxicity [e.g., SCr, GFR], randomized controlled trials and suggestion was made to evaluate hematologic toxicity [e.g., TCP, anemia, observational studies relevant to the combination therapy and to compare neutropenia], hypertension, alteration in clinical outcomes. Please provide both a harms in patients without psoriasis or metabolic parameters [e.g., glucose, list of citations and reprints if possible. untreated controls with psoriasis, such • lipids, weight, BMI, thyroid function], Information identifying an evaluation falls outside the scope of injection site reaction, malignancy, unpublished randomized controlled our review. We have now specified the infection, and study withdrawal)? trials and observational studies relevant measures that will be used for health- to the clinical outcomes. If possible, related quality of life in KQ. Question 3 please provide a summary that includes 1. The Psoriasis Area and Severity In patients with chronic plaque the following elements: study number, Index (PAST) score will be considered psoriasis treated with systemic biologic study period, design, methodology, not only as a binary outcome but as a therapy, systemic nonbiologic therapy, indication and diagnosis, proper use continuous outcome as suggested. or phototherapy, which patient or instructions, inclusion and exclusion Although we had proposed the Psoriasis disease characteristics (e.g., age, gender, criteria, primary and secondary Scalp Severity Index (PSSI) and the Nail race, weight, smoking status, psoriasis outcomes, baseline characteristics, Psoriasis Severity Index (NAPSI) scores severity, presence or absence of number of patients screened/eligible/ as outcomes, patient-reported concomitant psoriatic arthritis, disease enrolled/lost to withdrawn/followup/ improvement in scalp pruritus and duration, baseline disease severity, analyzed, and effectiveness/efficacy and scalp pain were suggested as additional affected BSA, disease location, number safety results. outcomes in KQ 1; scalp pruritus and and type of previous treatments, failure • Registered ClinicalTrials.gov scalp pain are not as commonly of previous treatments and presence of studies. Please provide a list including reported in the literature and are less neutralizing antibodies) affect the ClinicalTrials.gov identifier, likely to add extra value over the body- intermediate and final outcomes? condition, and intervention. wide assessments. We have not listed Details regarding the specific Your contribution is very beneficial to specific malignancies (hepatosplenic T- therapies considered in each class of this program. AHRQ is not requesting cell lymphoma and other lymphomas) interventions and comparators can be and will not consider marketing and infections (tuberculosis and found in Tables 1–5. There are no material, health economics information, histoplasmosis) in KQ 2 as suggested to specific requirements in terms of or information on other indications. be more comprehensive. Weight and followup period that will be evaluated This is a voluntary request for impact of neutralizing antibodies have in these key questions. The setting will information, and all costs for complying been added as characteristics that will include inpatient, outpatient and home with this request must be borne by the be evaluated in KQ 3. We did not move therapy. major adverse cardiovascular events submitter. In addition to your scientific Dated: October 14, 2011. information please submit an index (MACE) from final health outcomes to harms, because this is an outcome of the Carolyn M. Clancy, document outlining the relevant Director, AHRQ. information in each file along with a disease process rather than of [FR Doc. 2011–27563 Filed 10–25–11; 8:45 am] statement regarding whether or not the therapeutic interventions. Subgroup submission comprises all of the analyses based on duration of followup BILLING CODE 4160–90–M complete information available. were discussed with the Technical Expert Panelists (TEP). Please Note: The contents of all The acronyms used in the questions DEPARTMENT OF HEALTH AND submissions, regardless of format, will be below are defined within the text and HUMAN SERVICES available to the public upon request unless the list under Definitions of Terms. prohibited by law. Centers for Disease Control and The draft of this review will be posted Question 1 Prevention on AHRQ’s EHC program Web site and In patients with chronic plaque Statement of Organization, Functions, available for public comment for a psoriasis, what is the comparative and Delegations of Authority period of 4 weeks. If you would like to effectiveness of systemic biologic agents be notified when the draft is posted, and systemic nonbiologic agents Part C (Centers for Disease Control please sign up for the e-mail list at: (between-class comparisons) or and Prevention) of the Statement of http://effectivehealthcare.AHRQ.gov/ phototherapy when evaluating Organization, Functions, and index.cfm/join-the-email-list1/. intermediate (plaque BSA measurement, Delegations of Authority of the

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Department of Health and Human Radiological Health, Food and Drug Early Childhood Home Visiting Program Services (45 FR 67772–76, dated Administration, 10903 New Hampshire appropriation (authorized in Section October 14, 1980, and corrected at 45 FR Ave., Bldg. 66, rm. 4434, Silver Spring, 511(j)) for grants to Tribal entities and 69296, October 20, 1980, as amended MD 20993–0002, 301–796–6579. requires that the Tribal grants, to the most recently at 76 FR 50223—50224, SUPPLEMENTARY INFORMATION: In FR Doc. greatest extent practicable, be consistent dated August 12, 2011) is amended to 2011–25907, appearing on page 62808 with the requirements of the Maternal, reflect the reorganization of the Office of in the Federal Register of Tuesday, Infant, and Early Childhood Home Public Health Preparedness and October 11, 2011, the following Visiting Program grants to States and Response, Centers for Disease Control corrections are made: territories (authorized in Section and Prevention. 1. On page 62808, in the third 511(c)), and include (1) Conducting a Section C–B, Organization and column, under the heading ‘‘A. Parallel needs assessment similar to the Functions, is hereby amended as Review Proposal,’’ the Web site address assessment required for all States under follows: ‘‘http://www.parallel-review.fda.gov’’ is the legislation and (2) establishing After item (7) in the functional corrected to read ‘‘http://www.fda.gov/ quantifiable, measurable 3- and 5-year statement for the Office of Public Health parallel-review’’. benchmarks consistent with the Preparedness and Response (CG), 2. On page 62809, in the second legislation. Division of Strategic National Stockpile column, under the heading ‘‘B. The Administration for Children and (CGE), Office of the Director (CGE1), Appropriate Candidates,’’ the e-mail Families, Office of Child Care, in insert the following: And (8) provides address ‘‘[email protected]’’ is leadership, guidance, and technical collaboration with the Health Resources corrected to read ‘‘parallel- and Services Administration, Maternal assistance to state, tribal and local [email protected]’’. territories for healthcare preparedness and Child Health Bureau, has awarded 3. On page 62809, in the third grants for the Tribal Maternal, Infant, and emergency response and for the column, under the heading ‘‘1. integration of preparedness planning and Early Childhood Home Visiting Nomination,’’ the Web site address Program (Tribal Home Visiting). The across the public health, healthcare, and ‘‘http://www.parallel-review.fda.gov’’ is emergency management sectors. Tribal Home Visiting grant awards corrected to read ‘‘http://www.fda.gov/ support 5-year cooperative agreements Dated: October 14, 2011. parallel-review’’. to conduct community needs Sherri A. Berger, Dated: October 17, 2011. assessments, plan for and implement (in Chief Operating Officer, Centers for Disease Jacquelyn Y. White, accordance with an Implementation Control and Prevention. Director, Office of Strategic Operations and Plan submitted at the end of Year 1) [FR Doc. 2011–27497 Filed 10–25–11; 8:45 am] Regulatory Affairs. Centers for Medicare & high-quality, culturally-relevant, BILLING CODE 4163–18–P Medicaid Services. evidence-based and promising home Dated: October 19, 2011. visiting programs in at-risk Tribal Leslie Kux, communities, and participate in DEPARTMENT OF HEALTH AND research and evaluation activities to HUMAN SERVICES Acting Assistant Commissioner for Policy, Food and Drug Administration. build the knowledge base on home visiting among Native populations. Centers for Medicare and Medicaid [FR Doc. 2011–27694 Filed 10–25–11; 8:45 am] Services BILLING CODE 4160–01–P In the Affordable Care Act Tribal Maternal, Infant, and Early Childhood [CMS–3180–N2] Home Visiting Program Needs Food and Drug Administration DEPARTMENT OF HEALTH AND Assessment and Plan for Responding to HUMAN SERVICES Identified Needs (‘‘Implementation Plan [Docket No. FDA–2010–N–0308] Guidance’’) (OMB Control No. 0970– Administration for Children and 0389, Expiration Date 6/30/14), grantees Pilot Program for Parallel Review of Families were notified that in Years 2–5 of their Medical Products; Correction grant they must comply with the Proposed Information Collection AGENCY: requirement for submission of an Food and Drug Administration, Activity; Comment Request Centers for Medicare and Medicaid Annual Report to the Secretary Services, HHS. Title: Affordable Care Act Tribal regarding the program and activities ACTION: Notice; correction. Maternal, Infant and Early Childhood carried out under the program. Home Visiting Program Annual Report. This Report Shall Address the Following SUMMARY: The Food and Drug OMB No.: New. Administration (FDA) and the Centers Home Visiting Program Goals and Description for Medicare and Medicaid Services Objectives. (CMS) are correcting a notice that Section 511(h)(2)(A) of Title V of the Implementation of Home Visiting appeared in the Federal Register of Social Security Act, as added by Section Program in Targeted Community(ies). October 11, 2011 (76 FR 62808). The 2951 of the Patient Protection and document announced a pilot program Affordable Care Act of 2010 (Pub. L. Progress toward Meeting Legislatively for sponsors of innovative device 111–148, Affordable Care Act or ACA), Mandated Benchmark Requirements. technologies to participate in a program authorizes the Secretary of HHS to Research and Evaluation Update. of parallel FDA–CMS review. The award grants to Indian Tribes (or a Home Visiting Program Continuous document was published with an consortium of Indian Tribes), Tribal Quality Improvement (CQI) Efforts. incorrect Web page address and an Organizations, or Urban Indian Administration of Home Visiting incorrect email address. This document Organizations to conduct an early Program. corrects those errors. childhood home visiting program. Technical Assistance Needs. FOR FURTHER INFORMATION CONTACT: Jean The legislation sets aside 3 percent of Olson, Center for Devices and the total ACA Maternal, Infant, and Respondents

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ANNUAL BURDEN ESTIMATES

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

Tribal Home Visiting Program Annual Report ...... 25 1 50 1,250

Estimated Total Annual Burden Hours ...... 1,250

In compliance with the requirements respondents, including through the use programs operated by States and of Section 3506(c)(2)(A) of the of automated collection techniques or Territories in association with their Paperwork Reduction Act of 1995, the other forms of information technology. Temporary Assistance for Needy Administration for Children and Consideration will be given to Families (TANF) programs. All State Families is soliciting public comment comments and suggestions submitted and Territory expenditures claimed on the specific aspects of the within 60 days of this publication. toward States and Territories MOE information collection described above. requirements must be appropriate, i.e., Robert Sargis, Copies of the proposed collection of meet all applicable MOE requirements. information can be obtained and Reports Clearance Officer. The Annual MOE Report provides the comments may be forwarded by writing [FR Doc. 2011–27611 Filed 10–25–11; 8:45 am] ability to learn about and to monitor the to the Administration for Children and BILLING CODE 4184–01–P nature of State and Territory Families, Office of Administration, expenditures used to meet States and Office of Information Services, 370 Territories MOE requirements, and it is L’Enfant Promenade, SW., Washington, DEPARTMENT OF HEALTH AND an important source of information DC 20447, Attn: ACF Reports Clearance HUMAN SERVICES about the different ways that States and Officer. E-mail address: infocollection@ Administration for Children and Territories are using their resources to acf.hhs.gov. All requests should be Families help families attain and maintain self- identified by the title of the information sufficiency. In addition, the report is collection. Submission for OMB Review; used to obtain State and Territory The Department specifically requests Comment Request program characteristics for ACFs annual comments on: (a) Whether the proposed report to Congress, and the report serves collection of information is necessary Title: Annual Report/ACF 204 (State as a useful resource to use in for the proper performance of the MOE). Congressional hearings about how functions of the agency, including OMB No.: 0970–0248. TANF programs are evolving, in whether the information shall have assessing State the Territory MOE Description practical utility; (b) the accuracy of the expenditures, and in assessing the need agency’s estimate of the burden of the The Administration for Children and for legislative changes. proposed collection of information; (c) Families (ACF) is requesting a three- the quality, utility, and clarity of the year extension of the ACF–204 (Annual Respondents information to be collected; and (d) MOE Report). The report is used to The 50 States of the United States, the ways to minimize the burden of the collect descriptive program District of Columbia, Guam, Puerto collection of information on characteristics information on the Rico, and the Virgin Islands.

ANNUAL BURDEN ESTIMATES

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

ACF–204 ...... 54 1 118 6,372

Estimated Total Annual Burden OMB Comment [email protected], Hours: 6,372. Attn: Desk Officer for the OMB is required to make a decision Administration for Children and Additional Information concerning the collection of information Families. between 30 and 60 days after Copies of the proposed collection may publication of this document in the Robert Sargis, be obtained by writing to the Federal Register. Therefore, a comment Reports Clearance Officer. Administration for Children and is best assured of having its full effect Families, Office of Planning, Research [FR Doc. 2011–27602 Filed 10–25–11; 8:45 am] if OMB receives it within 30 days of BILLING CODE 4184–01–P and Evaluation, 370 L’Enfant publication. Written comments and Promenade, SW., Washington, DC recommendations for the proposed 20447, Attn: ACF Reports Clearance information collection should be sent Officer. All requests should be directly to the following: Office of identified by the title of the information Management and Budget, Paperwork collection. E-mail address: Reduction Project, Fax: 202–395–7285, [email protected]. E-mail:

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DEPARTMENT OF HEALTH AND Center for Biologics Evaluation and • Clarifying headings, and HUMAN SERVICES Research (HFM–25), Food and Drug • Using attributes in place of certain Administration, 1401 Rockville Pike, headings to provide flexibility for future Food and Drug Administration suite 200N, Rockville, MD 20852, 301– changes without revising the [Docket No. FDA–2011–N–0724] 827–0373, [email protected]. specification itself. SUPPLEMENTARY INFORMATION: The draft documents contain complete Draft Documents To Support I. Background lists of the changes to Module 1. Submission of an Electronic Common Technical Document; Availability The eCTD is an International II. Comments Conference on Harmonisation (ICH) Interested persons may submit to the AGENCY: Food and Drug Administration, standard based on specifications Division of Dockets Management (see HHS. developed by ICH and its member ADDRESSES) either electronic or written ACTION: Notice; request for comments. parties. CDERCBER have been receiving comments regarding the draft submissions in the eCTD format since documents. It is only necessary to send SUMMARY: The Food and Drug 2003, and the eCTD has been the one set of comments. It is no longer Administration (FDA) is announcing the standard for electronic submissions to necessary to send two copies of mailed availability of the following draft CDER and CBER since January 1, 2008. comments. Identify comments with the versions of documents that support The majority of new electronic docket number found in brackets in the making regulatory submissions in submissions are now received in eCTD heading of this document. Received electronic format using the electronic format. Since adoption of the eCTD comments may be seen in the Division Common Technical Document (eCTD) standard, it has become necessary to of Dockets Management between 9 a.m. specifications entitled ‘‘The eCTD update the administrative portion of the and 4 p.m., Monday through Friday. Backbone Files Specification for Module eCTD (Module 1) to reflect regulatory 1, version 2.0’’ (which includes the U.S. changes, to provide clarification of III. Electronic Access regional document type definition, business rules for submission Persons with access to the Internet version 3.0) and ‘‘Comprehensive Table processing and review, to refine the may obtain the documents at either of Contents Headings and Hierarchy, characterization of promotional http://www.fda.gov/Drugs/Development version 2.0.’’ Supporting technical files marketing and advertising material, and ApprovalProcess/FormsSubmission are also being made available on the to facilitate automated processing of Requirements/ElectronicSubmissions/ Agency Web site. These draft submissions. In preparation for the ucm253101.htm, http://www.fda.gov/ documents represent FDA’s major Module 1 update, FDA is making BiologicsBloodVaccines/Guidance updates to Module 1 of the eCTD, which available for comment the following ComplianceRegulatoryInformation/ contains regional information. draft documents: • Guidances/default.htm, or http:// DATES: Submit either electronic or ‘‘The eCTD Backbone Files www.regulations.gov. written comments on the draft Specification for Module 1, version 2.0’’ Dated: October 21, 2011. documents by December 27, 2011. provides specifications for creating the eCTD backbone file for Module 1 for Leslie Kux, ADDRESSES: Submit written requests for Acting Assistant Commissioner for Policy. single copies of the documents to the submission to CDER and CBER. It Division of Drug Information, Center for should be used in conjunction with the [FR Doc. 2011–27658 Filed 10–25–11; 8:45 am] Drug Evaluation and Research (CDER), guidance for industry entitled BILLING CODE 4160–01–P Food and Drug Administration, 10903 ‘‘Providing Regulatory Submissions in New Hampshire Ave., Bldg. 51, rm. Electronic Format—Human 2201, Silver Spring, MD 20993–0002; or Pharmaceutical Applications and ADVISORY COUNCIL ON HISTORIC Office of Communication, Outreach and Related Submissions,’’ which will be PRESERVATION Development (HFM–40), Center for revised as part of the implementation of Biologics Evaluation and Research the updated eCTD backbone files Notice of ACHP Quarterly Business (CBER), Food and Drug Administration, specification. Meeting • ‘‘The Comprehensive Table of 1401 Rockville Pike, suite 200N, Contents Headings and Hierarchy, AGENCY: Advisory Council on Historic Rockville, MD 20852–1448. Send one version 2.0’’ reflects updated headings Preservation. self-addressed adhesive label to assist that are specified in the draft document ACTION: Notice. that office in processing your requests. entitled ‘‘The eCTD Backbone Files See the SUPPLEMENTARY INFORMATION Specification for Module 1, version SUMMARY: Notice is hereby given that section for electronic access to the 2.0,’’ as well as mappings to regulations the Advisory Council on Historic documents. and legislation. Preservation (ACHP) will meet Submit electronic comments on the Supporting technical files are also being Thursday, November 10, 2011. The draft documents to http:// made available on the Agency Web site. meeting will be held at 8:30 a.m. in www.regulations.gov. Submit written The draft documents include the Room M09 in the Old Post Office comments to the Division of Dockets following changes: Building, 1100 Pennsylvania Ave., NW., Management (HFA–305), Food and Drug • Providing for processing of bundled Washington, DC 20004. Administration, 5630 Fishers Lane, rm. submissions (e.g., a supplement can be The ACHP was established by the 1061, Rockville, MD 20852. applied to more than one new drug National Historic Preservation Act of FOR FURTHER INFORMATION CONTACT: application or biologics license 1966 (16 U.S.C. 470 et seq.) to advise the Virginia Hussong, Center for Drug application), President and Congress on national Evaluation and Research, Food and • Providing detailed contact historic preservation policy and to Drug Administration, 10903 New information so that companies can comment upon federal, federally Hampshire Ave., Bldg. 22, rm. 1161, specify points of contacts to discuss assisted, and federally licensed Silver Spring, MD 20993, technical matters that may arise with a undertakings having an effect upon [email protected]; or Mary Padgett, submission, properties listed in or eligible for

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inclusion in the National Register of Dated: October 19, 2011. the proposed information collection to Historic Places. The ACHP’s members Reid Nelson, the Office of Information and Regulatory are the Architect of the Capitol; the Acting Executive Director. Affairs, Office of Management and Secretaries of the Interior, Agriculture, [FR Doc. 2011–27533 Filed 10–25–11; 8:45 am] Budget. Comments should be addressed Defense, Housing and Urban BILLING CODE 4310–K6–M to: Desk Officer for the Department of Development, Commerce, Education, Homeland Security, Science and Veterans Affairs, and Transportation; Technology Directorate, and sent via _ the Administrator of the General DEPARTMENT OF HOMELAND electronic mail to oira submission@ Services Administration; the Chairman SECURITY omb.eop.gov or faxed to (202) 395–6974. of the National Trust for Historic Please include docket number DHS– Preservation; the President of the [Docket No. DHS–2011–0079] 2011–0079 in the subject line of the National Conference of State Historic message. Agency Information Collection Preservation Officers; a Governor; a Activities: Submission for Review; FOR FURTHER INFORMATION CONTACT: DHS Mayor; a Native American; and eight Information Collection Request for the S&T PRA Coordinator Millie Ives (202) non-federal members appointed by the Department of Homeland Security 254–6828 (Not a toll free number). President. (DHS), Science and Technology, SUPPLEMENTARY INFORMATION: The Call to Order_8:30 a.m. Biodefense Knowledge Center (BKC) information is collected via the DHS I. Chairman’s Welcome S&T BKC secure Web site at https:// AGENCY: Science and Technology II. Presentation of Chairman’s Award bkms.llnl.gov/sme. The BKC Web site Directorate, DHS. III. Chairman’s Report only employs secure web-based ACTION: 30-day Notice and request for technology (i.e., electronic registration IV. ACHP Management Issues comment. A. Credentials Committee Report and form) to collect information from users Recommendations—Update SUMMARY: The Department of Homeland to both reduce the burden and increase the efficiency of this collection. B. Alumni Foundation Report Security (DHS), Science & Technology The Department is committed to C. ACHP FY 2012 Budget (S&T) Directorate invites the general public to comment on data collection improving its information collection V. Historic Preservation Policy and and urges all interested parties to Programs forms for the Biodefense Knowledge Center (BKC) program. BKC is suggest how these materials can further A. Preservation Action Federal responsible for coordinating the reduce burden while seeking necessary Preservation Task Force Report and collection of Life Sciences Subject information under the Act. Recommendations Matter Experts (SMEs) information with DHS is particularly interested in B. National Park Service ‘‘Call to the Office of the Director of National comments that: Action’’ Intelligence (ODNI), which operates (1) Evaluate whether the proposed C. National Trust for Historic under the authority of the National collection of information is necessary Preservation’s ‘‘Preservation 10X’’ Security act of 1947, as amended by the for the proper performance of the and the ACHP Intelligence Reform and Terrorism functions of the agency, including D. White House American Latino Prevention Act of 2004. These whether the information will have Heritage Initiative authorities charge the ODNI with practical utility; (2) Evaluate the accuracy of the E. Legislative Agenda responsibility to coordinate and agency’s estimate of the burden of the F. Navy War of 1812 Initiative rationalize the activities of the Intelligence Community components. proposed collection of information, G. Rightsizing Task Force Report including the validity of the H. Sustainability Task Force Report The SME information is necessary to understand who can provide scientific methodology and assumptions used; I. Federal Preservation Funding for expertise for peer review of life science (3) Suggest ways to enhance the Disaster Recovery programs. In addition, the directory quality, utility, and clarity of the VI. Section 106 Issues makes it easier to identify scientific information to be collected; and (4) Suggest ways to minimize the A. Section 3 Report Development specialty areas for which there is a burden of the collection of information B. Native American Traditional shortage of Subject Matter Experts on those who are to respond, including Cultural Landscapes Action Plan (SMEs) with appropriate security through the use of appropriate C. Department of Veterans Affairs clearances. Section 106 Issues The DHS invites interested persons to automated, electronic, mechanical, or other technological collection D. Administration’s Priority comment on the following form and techniques or other forms of information Projects—Report instructions (hereinafter ‘‘Forms Package’’) for the S&T BKC: (1) Subject technology, e.g., permitting electronic VII. New Business submissions of responses. VIII. Adjourn Matter Expert Registration Form (DHS FORM 10043 (2/08)). Interested persons Overview of This Information Note: The meetings of the ACHP are open may receive a copy of the Forms Collection to the public. If you need special Package by contacting the DHS S&T accommodations due to a disability, please (1) Type of Information Collection: PRA Coordinator. This notice and contact the Advisory Council on Historic Renewal of information collection request for comments is required by the Preservation, 1100 Pennsylvania Avenue, (2) Title of the Form/Collection: Paperwork Reduction Act of 1995 (Pub. NW., Room 803, Washington, DC, (202) 606– Science and Technology, Biodefense L. 104–13, 44 U.S.C. chapter 35). 8503, at least seven (7) days prior to the Knowledge Center (BKC) program. meeting. For further information: Additional DATES: Comments are encouraged and information concerning the meeting is (3) Agency Form Number, if any, and will be accepted until November 25, the applicable component of the available from the Executive Director, 2011. Advisory Council on Historic Preservation, Department of Homeland Security 1100 Pennsylvania Avenue, NW., #803, ADDRESSES: Interested persons are sponsoring the collection: Department of Washington, DC 20004. invited to submit written comments on Homeland Security, Science &

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Technology Directorate—(1) Subject All written material and requests to 2011 from 12:30 p.m. to 1 p.m. Speakers Matter Expert Registration Form (DHS make oral presentations should reach are requested to limit their comments to FORM 10043 (2/08)). the Coast Guard on or before November 2 minutes. Please note that the public (4) Affected public who will be asked 7, 2011. comment period will end following the or required to respond, as well as a brief ADDRESSES: The Committee will meet last call for comments. Contact the abstract: The Subject Matter Experts via telephone conference, on November person listed in the FOR FURTHER (SME) information is necessary to 15, 2011. As there are only 100 INFORMATION CONTACT section to register understand who can provide scientific teleconference lines, public as a speaker. expertise for peer review of life science participation will be on a first come FOR FURTHER INFORMATION CONTACT: Mr. programs. The directory makes it easier basis. To participate via teleconference, Ryan Owens, Alternate Designated to identify scientific specialty areas for please contact the person listed in the Federal Officer (ADFO) of NMSAC, which there is a shortage of SMEs with FOR FURTHER INFORMATION CONTACT 2100 2nd Street, SW., Stop 7581, appropriate security clearances. SME Section. Washington, DC 20593–7581; telephone contact information, scientific expertise, For information on facilities or 202–372–1108 or e-mail and level of education is collected services for individuals with disabilities [email protected]. If you have any electronically through a web portal or to request special assistance at the questions on viewing or submitting developed by DHS S&T. The SME teleconference, contact the person listed material to the docket, call Renee V. information is shared with U.S. in the FOR FURTHER INFORMATION Wright, Program Manager, Docket Government program managers and CONTACT section as soon as possible. Operations, telephone 202–366–9826. other members of the biodefense To facilitate public participation, we SUPPLEMENTARY INFORMATION: Notice of community who have a legitimate need are inviting public comment on the this meeting is given under the Federal to identify life sciences SMEs. Cleared issues to be considered by the Advisory Committee Act, 5 U.S.C. App. SMEs are necessary to accomplish committee as listed in the ‘‘Agenda’’ NMSAC operates under the authority of scientific reviews and attend topical section below. You may submit written 46 U.S.C. 70112. NMSAC provides meetings. materials and requests to make oral advice, consults with, and makes (5) An estimate of the total number of recommendations to the Secretary of respondents and the amount of time presentations no later than November 7, 2011, and identified by docket number Homeland Security, via the estimated for an average respondent to Commandant of the Coast Guard, on respond: [USCG–2011–0975] using one of the following methods: matters affecting national maritime a. Estimate of the total number of • security. respondents: 4000. Federal eRulemaking Portal: http:// b. An estimate of the time for an www.regulations.gov. Follow the Agenda of Meeting average respondent to respond: 0.25 instruction for submitting comments. • Mail: Docket Management Facility As a result of the report issued by burden hours. NMSAC at its April 2011 meeting and c. An estimate of the total public (M–30), U.S. Department of Transportation, West Building Ground public listening sessions held by the burden (in hours) associated with the Coast Guard in August 2011, the Coast Floor, Room W12–140, 1200 New Jersey collection: 1000 burden hours. Guard has developed a Certain Avenue, SE., Washington, DC 20590– Dated: October 19, 2011. Dangerous Cargo (CDC) Security 0001. We encourage use of electronic Strategy. A NMSAC working group was Tara O’Toole, submissions because security screening created to review the following five Under Secretary for Science and Technology. may delay delivery of mail. goals of the strategy. The committee will [FR Doc. 2011–27636 Filed 10–25–11; 8:45 am] • Fax: (202) 493–2251. review the information presented on BILLING CODE 9110–9F–P • Hand Delivery: Same as mail each issue, deliberate on any address above, between 9 a.m. and 5 recommendations presented in the p.m., Monday through Friday, except Work Group reports, and formulate the DEPARTMENT OF HOMELAND Federal Holidays. The telephone SECURITY recommendations for the Department’s number is 202–366–9329. consideration. Coast Guard Instructions: All submissions received a. Provide to internal and external must include the words ‘‘Department of stakeholders real-time national, [USCG–2011–0975] Homeland Security’’ and docket number regional, and local awareness of the risk [USCG–2011–0975]. All submissions of intentional attacks on the CDC National Maritime Security Advisory received will be posted without Committee; Meeting Marine Transportation System. alteration at http://www.regulations.gov, b. Consistently assess vulnerability to AGENCY: Coast Guard, DHS. including any personal information threats of intentional attacks on the CDC ACTION: Notice of Federal Advisory provided. You may review a Privacy Act Marine Transportation System and Committee Meeting. notice regarding our public dockets in mitigate the vulnerability to an the January 17, 2008 issue of the acceptable level. SUMMARY: The National Maritime Federal Register (73 FR 3316). c. Dynamically assess the potential Security Advisory Committee (NMSAC) Docket: Any background information consequences of an intentional attack on will meet via teleconference on or presentations available prior to the the CDC Marine Transportation System November 15, 2011 to discuss the meeting will be published in the docket. and capably mitigate, through results of a working group tasked with For access to the docket to read coordinated response, the impact of a reviewing the Draft Certain Dangerous background documents or submissions successful attack. Cargo (CDC) Security Strategy. This received by the NMSAC, go to http:// d. Lead the development of national, meeting will be open to the public. www.regulations.gov ‘‘USCG–2011– regional, and local resiliency/recovery DATES: The Committee will meet on 0975) in the ‘‘Keyword’’ box, and then capability from successful attacks on the Tuesday, November 15, 2011 from 11 click ‘‘Search’’. CDC Marine Transportation System. a.m. to 1 p.m. This meeting may close Public comment period will be held e. Establish the internal organization early if all business is finished. during the meeting on November 15, and processes, and external stakeholder

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relationships, to manage the national Transportation, West Building Ground the Lower Mississippi River (LMR) as maritime CDC security program to an Floor, Room W12–140, 1200 New Jersey required by the U.S. Coast Guard. acceptable risk level. Avenue, SE., Washington, DC 20590– Agenda Dated: October 20, 2011. 0001. • Hand delivery: Same as mail (1) Opening comments by Chairman; K.C. Kiefer, (2) Introduction of committee Captain, U.S. Coast Guard, Office of Port address above, between 9 a.m. and 5 p.m., Monday through Friday, except members and distinguished guests; and Facility Activities, Designated Federal (3) Approval of the March 24th, 2011 Official, NMSAC. Federal Holidays. The telephone number is 202–366–9329. meeting minutes; [FR Doc. 2011–27724 Filed 10–25–11; 8:45 am] (4) Remarks from Coast Guard Captain BILLING CODE 9110–04–P Instructions: All submissions received of the Port, Captain Peter Gautier, must include the words ‘‘Department of Commander, Sector New Orleans, Homeland Security’’ and the docket Designated Federal Officer (DFO) of DEPARTMENT OF HOMELAND number for this action. Comments LMRWSAC; SECURITY received will be posted without (5) Remarks from Rear Admiral R. A. alteration at http://www.regulations.gov, Nash, Commander 8th Coast Guard Coast Guard including any personal information District; [Docket No. USCG–2011–0724] provided. You may review a Privacy Act (6) Committee Administration issues notice regarding our public dockets in to include nomination and selection of RIN 1625–1148 the January 17, 2008, issue of the Vice-Chairman; Lower Mississippi River Waterway Federal Register (73 FR 3316). (7) Baton Rouge LA Vessel Traffic Safety Advisory Committee Docket: For access to the docket to Operations report; read background documents or (8) Discussion on possible AGENCY: Coast Guard, DHS. comments related to this notice, go to establishment of Belmont Anchorage; ACTION: Notice of Federal Advisory http://www.regulations.gov, enter the (9) U.S. Army Corps of Engineers Committee Meeting. docket number for this notice (USCG– report on Dredging Operations; 2011–0724) in the ‘‘Keyword’’ box, and (10) National Oceanic and SUMMARY: The Lower Mississippi River then click ‘‘Search.’’ Administration report; Waterway Safety Advisory Committee A public comment period will be held (11) Public Comments/Presentations; (12) Adjournment. (LMRWSAC) will hold its bi-annual at the end of the meeting on December meeting on December 6, 2011, in New Reports and Meeting Minutes: The 6, 2011 from 9 a.m until 12 p.m. reports which will be discussed by the Orleans, Louisiana. The meeting will be Speakers are requested to limit their open to the public. Committee and minutes of the meeting comments to 10 minutes. Please note may be viewed in our online docket. Go DATES: LMRWSAC will meet on that the public comment period may Tuesday, December 6, 2011, from 9 a.m. to http://www.regulations.gov, enter the end before the time indicated, following docket number for this notice (USCG– to 12 p.m. Please note that the meeting the last call for comments. may close early if the committee has 2011–0724) in the ‘‘Keyword’’ box, and Contact the individual listed below to then click ‘‘Search.’’ completed its business. Written register as a speaker. materials and requests to make oral Dated: October 12, 2011. FOR FURTHER INFORMATION CONTACT: presentation should reach the Coast P. Troedsson, Guard on or before November 21, 2011. Lieutenant Marcie Kohn, Assistant Designated Federal Officer of the Lower Captain, U.S. Coast Guard, Acting ADDRESSES: The meeting will be held at Commander, Eighth Coast Guard District. Mississippi River Waterway Safety the U.S. Coast Guard Sector New [FR Doc. 2011–27643 Filed 10–25–11; 8:45 am] Advisory Committee, telephone 504– Orleans Building, 200 Hendee Street, 365–2281 or e-mail at BILLING CODE 9110–04–P New Orleans, Louisiana 70114, First [email protected]. If you have Floor, Training Room A. questions on viewing or submitting For information on facilities or material to the docket, call Renee V. DEPARTMENT OF HOUSING AND services for individuals with disabilities Wright, Program Manager, Docket URBAN DEVELOPMENT or to request special assistance at the Operations, telephone 202–366–9826. meeting, contact LCDR Marcie Kohn as [Docket No. FR–5480–N–104] soon as possible. SUPPLEMENTARY INFORMATION: Notice of Notice of Submission of Proposed To facilitate public participation, we this meeting is given under the Federal Information Collection to OMB are inviting public comment on the Advisory Committee Act (FACA), 5 Requirements for Single Family issues to be considered by the U.S.C. App. (Pub. L. 92–463). The Mortgage Instruments committee as listed by the ‘‘Agenda’’ LMRWSAC is an advisory committee section below. Comments must be authorized in Section 19 of the Coast AGENCY: Office of the Chief Information submitted in writing no later than Guard Authorization Act of 1991, (Pub. Officer, HUD. November 21, 2011 and must be L. 102–241) as amended by section 621 ACTION: Notice. identified by USCG–2011–0724 and of the Coast Guard Authorization Act of may be submitted by one of the 2010 (Pub. L. 111–281) and chartered SUMMARY: The proposed information following methods: under the provisions of FACA. collection requirement described below • Federal eRulemaking Portal: http:// LMRWSAC provides advice and has been submitted to the Office of www.regulations.gov. Follow the recommendations to the Department of Management and Budget (OMB) for instructions for submitting comments Homeland Security on matters relating review, as required by the Paperwork (preferred method to avoid delays in to communications, surveillance, traffic Reduction Act. The Department is processing). management, anchorages, development soliciting public comments on the • Fax: 202–493–2251. and operation of New Orleans Vessel subject proposal. • Mail: Docket Management Facility Traffic Service (VTS), and other related This information is used to verify that (M–30), U.S. Department of topics dealing with navigation safety on a mortgage has been properly recorded

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and is eligible for FHA mortgage available documents submitted to OMB burden of the collection of information insurance. may be obtained from Ms. Pollard. on those who are to respond; including through the use of appropriate DATES: Comments Due Date: November SUPPLEMENTARY INFORMATION: This 25, 2011. automated collection techniques or notice informs the public that the other forms of information technology, ADDRESSES: Interested persons are Department of Housing and Urban e.g., permitting electronic submission of invited to submit comments regarding Development has submitted to OMB a responses. this proposal. Comments should refer to request for approval of the Information the proposal by name and/or OMB collection described below. This notice This Notice Also Lists the Following approval Number (2502–0404) and is soliciting comments from members of Information should be sent to: HUD Desk Officer, the public and affecting agencies Title of Proposal: Requirements For Office of Management and Budget, New concerning the proposed collection of Single Family Mortgage Instruments. Executive Office Building, Washington, information to: (1) Evaluate whether the OMB Approval Number: 2502–0404. DC 20503; e-mail OIRA-Submission@ proposed collection of information is Form Numbers: None. omb.eop.gov; fax: 202–395–5806. necessary for the proper performance of FOR FURTHER INFORMATION CONTACT: the functions of the agency, including Description of the Need for the Colette Pollard, Reports Management whether the information will have Information and Its Proposed Use Officer, QDAM, Department of Housing practical utility; (2) Evaluate the This information is used to verify that and Urban Development, 451 Seventh accuracy of the agency’s estimate of the a mortgage has been properly recorded Street, SW., Washington, DC 20410; e- burden of the proposed collection of and is eligible for FHA mortgage mail Colette Pollard at Colette.Pollard@ information; (3) Enhance the quality, insurance. hud.gov; or telephone (202) 402–3400. utility, and clarity of the information to Frequency of Submission: On This is not a toll-free number. Copies of be collected; and (4) Minimize the Occasion.

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

Reporting Burden ...... 9,000 1 0.5 4,500

Total Estimated Burden Hours: 4,500. ADDRESSES: Interested persons are This notice is soliciting comments Status: Revision of a currently invited to submit comments regarding from members of the public and affected approved collection. this proposal. Comments should refer to agencies concerning the proposed Authority: Section 3507 of the Paperwork the proposal by name and/or OMB collection of information to: (1) Evaluate Reduction Act of 1995, 44 U.S.C. 35, as Control number and should be sent to: whether the proposed collection of amended. Colette Pollard, Departmental Reports information is necessary for the proper Dated: October 20, 2011. Management Officer, QDAM, performance of the functions of the agency, including whether the Colette Pollard, Department of Housing and Urban Development, 451 7th Street, SW. Room information will have practical utility; Departmental Reports Management Officer, (2) evaluate the accuracy of the agency’s Office of the Chief Information Officer. 4178, Washington, DC 20410–5000; telephone 202–402–3400, (this is not a estimate of the burden of the proposed [FR Doc. 2011–27667 Filed 10–25–11; 8:45 am] toll free number) or e-mail Ms. Pollard collection of information; (3) enhance BILLING CODE 4210–67–P at [email protected] for a the quality, utility, and clarity of the information on the data collected. information to be collected; and (4) minimize the burden of the collection of DEPARTMENT OF HOUSING AND Persons with hearing or speech information on those who are to URBAN DEVELOPMENT impairments may access this number through TTY by calling the toll-free respond; including through the use of [Docket No. FR–5487–N–18] Federal Information Relay Service at appropriate automated collection (800) 877–8339. (Other than the HUD techniques or other forms of information Notice of Proposed Information USER information line and TTY technology, e.g., permitting electronic Collection for Public Comment for the numbers, telephone numbers are not submissions of responses. Family Unification Program (FUP) toll-free.) This Notice also lists the following information: AGENCY: Office of the Assistant FOR FURTHER INFORMATION CONTACT: Title of Proposal: Family Unification Secretary for Public and Indian Arlette A. Mussington, Office of Policy, Program (FUP). Housing, HUD. Programs and Legislative Initiatives, OMB Control Number: 2577–0259. ACTION: Notice. PIH, Department of Housing and Urban Description of the Need for the Development, 470 L’Enfant Plaza, SW., Information and Proposed Use: The SUMMARY: The proposed information Suite 2206, Washington, DC 20024, Family Unification Program (FUP) is a collection requirement described below telephone 202–402–4109, (this is not a program, authorized under section 8(x) will be submitted to the Office of toll-free number) or e-mail at of the United States Housing Act of { } Management and Budget (OMB) for [email protected]. 1937 42 U.S.C. 1437(X) , that provides review, as required by the Paperwork housing choice vouchers to PHAs to Reduction Act of 1995 (44 U.S.C. SUPPLEMENTARY INFORMATION: The assist families for whom the lack of chapter 35, as amended). The Department will submit the proposed adequate housing is a primary factor in Department is soliciting public information collection to OMB for the imminent placement of the family’s comments on the subject proposal. review, as required by the Paperwork child, or children, in out-of-home care; DATES: Comments Due Date: December Reduction Act of 1995 (44 U.S.C. or the delay in the discharge of the 27, 2011. chapter 35, as amended). child, or children, to the family from

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out-of-home care. Youths at least 18 Dated: October 18, 2011. hud.gov; or telephone (202) 402–3400. years old and not more than 21 years Merrie Nichols-Dixon, This is not a toll-free number. Copies of old (have not reached 22nd birthday) Deputy Director for Office of Policy, Program available documents submitted to OMB who left foster care at age 16 or older and Legislative Initiatives. may be obtained from Ms. Pollard. and who do not have adequate housing [FR Doc. 2011–27683 Filed 10–25–11; 8:45 am] SUPPLEMENTARY INFORMATION: This are also eligible to receive housing BILLING CODE 4210–67–P notice informs the public that the assistance under the FUP. As required Department of Housing and Urban by statute, a FUP voucher issued to such Development has submitted to OMB a a youth may only be used to provide DEPARTMENT OF HOUSING AND request for approval of the Information housing assistance for the youth for a URBAN DEVELOPMENT collection described below. This notice maximum of 18 months. [Docket No. FR–5480–N–106] is soliciting comments from members of Vouchers awarded under FUP are the public and affecting agencies administered by PHAs under HUD’s Notice of Submission of Proposed concerning the proposed collection of regulations for the Housing Choice Information Collection to OMB, information to: (1) Evaluate whether the Voucher program (24 CFR Part 982). Multifamily Insurance Benefits Claims proposed collection of information is Package necessary for the proper performance of Agency form numbers: HUD–52515 the functions of the agency, including (OMB Approval #2577–0169), HUD AGENCY: Office of the Chief Information whether the information will have 50058 (OMB approval #2577–0083), Officer, HUD. practical utility; (2) Evaluate the HUD–2993 (OMB Approval #2577– ACTION: Notice. accuracy of the agency’s estimate of the 0259), HUD–96010 (OMB Approval SUMMARY: burden of the proposed collection of #2535–0114), HUD 96011 (OMB The proposed information collection requirement described below information; (3) Enhance the quality, approval #2535–0118), HUD–2990, has been submitted to the Office of utility, and clarity of the information to HUD–2991 (OMB Approval #2506– Management and Budget (OMB) for be collected; and (4) Minimize the 0112) and HUD 2880 (OMB Approval review, as required by the Paperwork burden of the collection of information #2510–0011), SF–424 (OMB Approval Reduction Act. The Department is on those who are to respond; including #0348–0043), SF LLL (OMB Approval soliciting public comments on the through the use of appropriate #0348–0043). subject proposal. automated collection techniques or Members of the Affected Public: When the terms of a Multifamily other forms of information technology, Public Housing Agencies. contract are breached or when a e.g., permitting electronic submission of Estimation of the total number of mortgagee meets conditions stated responses. within the Multifamily contract for an hours needed to prepare the information This Notice Also Lists the Following automatic assignment, the holder of the collection including number of Information respondents: The total burden for data mortgage may file for insurance benefits. collection is estimated at 6,188.45 To receive these benefits, the mortgagee Title of Proposal: Multifamily hours. It is anticipated that must prepare and submit to HUD the Insurance Benefits Claims Package. approximately 265 PHAs will apply for Multifamily Insurance Benefits Claims OMB Approval Number: 2502–0418. FUP vouchers each year the program is Package. HUD uses the information Form Numbers: HUD–2741, HUD– funded. The estimate of the total annual collection to determine the insurance 2742, HUD–2744–A, HUD–2744–B, cost burden to respondents/record benefits owed to the mortgagee. HUD–2744–C, HUD–2744–D, HUD– keepers resulting from the collection of DATES: Comments Due Date: November 2744–E, HUD–434, HUD–1044–D. 25, 2011. this information is: 6,188.45 burden Description of the Need for the × ADDRESSES: Interested persons are hours $34.34 = $212,511.37; assuming Information and Its Proposed Use a Manager’s hourly rate at the GS–13/ invited to submit comments regarding Step 1 level. this proposal. Comments should refer to When the terms of a Multifamily the proposal by name and/or OMB * Burden hours for forms showing contract are breached or when a approval Number (2502–0418) and zero burden hours in this collection are mortgagee meets conditions stated should be sent to: HUD Desk Officer, reflected in the OMB approval number within the Multifamily contract for an Office of Management and Budget, New cited or do not have a reportable automatic assignment, the holder of the Executive Office Building, Washington, burden. The burden hours for this mortgage may file for insurance benefits. DC 20503; e-mail OIRA-Submission@ collection is 6,188.45. To receive these benefits, the mortgagee omb.eop.gov fax: 202–395–5806. must prepare and submit to HUD the Status of the Proposed Information FOR FURTHER INFORMATION CONTACT: Multifamily Insurance Benefits Claims Collection: Revision of a currently Colette Pollard, Reports Management Package. HUD uses the information approved collection. Officer, QDAM, Department of Housing collection to determine the insurance Authority: Section 3506 of the Paperwork and Urban Development, 451 Seventh benefits owed to the mortgagee. Reduction Act of 1995, 44 U.S.C. chapter 35, Street, SW., Washington, DC 20410; e- Frequency of Submission: On as amended. mail Colette Pollard at Colette.Pollard@ Occasion.

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

Reporting Burden ...... 150 9 0.471 637

Total Estimated Burden Hours: 637. Status: Revision of a currently Authority: Section 3507 of the Paperwork approved collection. Reduction Act of 1995, 44 U.S.C. 35, as amended.

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Dated: October 20, 2011. DATES: Comments Due Date: November proposed collection of information is Colette Pollard, 25, 2011. necessary for the proper performance of Departmental Reports Management Officer, ADDRESSES: Interested persons are the functions of the agency, including Office of the Chief Information Officer. invited to submit comments regarding whether the information will have [FR Doc. 2011–27662 Filed 10–25–11; 8:45 am] this proposal. Comments should refer to practical utility; (2) Evaluate the BILLING CODE 4210–67–P the proposal by name and/or OMB accuracy of the agency’s estimate of the approval Number (2502–0561) and burden of the proposed collection of should be sent to: HUD Desk Officer, information; (3) Enhance the quality, DEPARTMENT OF HOUSING AND Office of Management and Budget, New utility, and clarity of the information to URBAN DEVELOPMENT Executive Office Building, Washington, be collected; and (4) Minimize the DC 20503; e-mail OIRA- burden of the collection of information [Docket No. FR–5480–N–105] [email protected]; fax: 202– on those who are to respond; including 395–5806. through the use of appropriate Notice of Submission of Proposed automated collection techniques or FOR FURTHER INFORMATION CONTACT: Information Collection to OMB Energy other forms of information technology, Colette Pollard, Reports Management Efficient Mortgages e.g., permitting electronic submission of Officer, QDAM, Department of Housing responses. AGENCY: Office of the Chief Information and Urban Development, 451 Seventh Officer, HUD. Street, SW., Washington, DC 20410; This Notice Also Lists the Following e-mail Colette Pollard at Information ACTION: Notice. [email protected]; or telephone Title of Proposal: Energy Efficient SUMMARY: The proposed information (202) 402–3400. This is not a toll-free Mortgages. collection requirement described below number. Copies of available documents OMB Approval Number: 2502–0561. has been submitted to the Office of submitted to OMB may be obtained Form Numbers: None. Management and Budget (OMB) for from Ms. Pollard. review, as required by the Paperwork SUPPLEMENTARY INFORMATION: This Description of the Need for the Reduction Act. The Department is notice informs the public that the Information and Its Proposed Use soliciting public comments on the Department of Housing and Urban Lenders provide information required subject proposal. Development has submitted to OMB a to determine the eligibility of a mortgage Lenders provide information required request for approval of the Information to be insured under Section 513 of the to determine the eligibility of a mortgage collection described below. This notice Housing and Community Development to be insured under Section 513 of the is soliciting comments from members of Act of 1992 (Section 106 of the Energy Housing and Community Development the public and affecting agencies Policy Act of 1992). Act of 1992 (Section 106 of the Energy concerning the proposed collection of Frequency of Submission: On Policy Act of 1992). information to: (1) Evaluate whether the Occasion.

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

Reporting Burden ...... 1,066 3.5 1.133 4,229

Total Estimated Burden Hours: 4,229. SUMMARY: The proposed information should be sent to: HUD Desk Officer, Status: Revision of a currently collection requirement described below Office of Management and Budget, New approved collection. has been submitted to the Office of Executive Office Building, Washington, Authority: Section 3507 of the Paperwork Management and Budget (OMB) for DC 20503; e-mail OIRA– Reduction Act of 1995, 44 U.S.C. 35, as review, as required by the Paperwork [email protected] fax: 202–395– amended. Reduction Act. The Department is 5806. Dated: October 20, 2011. soliciting public comments on the FOR FURTHER INFORMATION CONTACT: Colette Pollard, subject proposal. Colette Pollard, Reports Management Departmental Reports Management Officer, HUD staff and Contract Officer, QDAM, Department of Housing Office of the Chief Information Officer. Administrators complete the form and Urban Development, 451 Seventh [FR Doc. 2011–27664 Filed 10–25–11; 8:45 am] HUD–9834 during on-site reviews. The Street, SW., Washington, DC 20410; e- BILLING CODE 4210–67–P information gathered from the form is mail Colette Pollard at used to evaluate the quality of [email protected]; or telephone management, determine causes of (202) 402–3400. This is not a toll-free DEPARTMENT OF HOUSING AND problems, and devise corrective actions number. Copies of available documents URBAN DEVELOPMENT to safeguard the Department’s financial submitted to OMB may be obtained interest and ensure that tenants are from Ms. Pollard. [Docket No. FR–5480–N–107] provided with decent, safe, and sanitary SUPPLEMENTARY INFORMATION: housing. This Notice of Submission of Proposed notice informs the public that the Information Collection to OMB; DATES: Comments Due Date: November Department of Housing and Urban Management Reviews of Multifamily 25, 2011. Development has submitted to OMB a Housing Programs ADDRESSES: Interested persons are request for approval of the Information AGENCY: Office of the Chief Information invited to submit comments regarding collection described below. This notice Officer, HUD. this proposal. Comments should refer to is soliciting comments from members of the proposal by name and/or OMB the public and affecting agencies ACTION: Notice. approval Number (2502–0178) and concerning the proposed collection of

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information to: (1) Evaluate whether the other forms of information technology, HUD–9834 during on-site reviews. The proposed collection of information is e.g., permitting electronic submission of information gathered from the form is necessary for the proper performance of responses. used to evaluate the quality of the functions of the agency, including This Notice Also Lists the Following management, determine causes of whether the information will have Information problems, and devise corrective actions practical utility; (2) Evaluate the to safeguard the Department’s financial Title Of Proposal: Management accuracy of the agency’s estimate of the interest and ensure that tenants are Reviews of Multifamily Housing burden of the proposed collection of provided with decent, safe, and sanitary Programs. information; (3) Enhance the quality, OMB Approval Number: 2502–0178. housing. utility, and clarity of the information to Form Numbers: HUD 9834. Frequency Of Submission: On be collected; and (4) Minimize the Occasion. burden of the collection of information Description of the Need for the on those who are to respond; including Information and its Proposed Use through the use of appropriate HUD staff and Contract automated collection techniques or Administrators complete the form

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

Reporting Burden ...... 25,649 1 6.956 178,423

Total Estimated Burden Hours: English Proficiency Initiative (LEPI) of Housing and Urban Development’s 178,423. Program for Fiscal Year (FY) 2010/2011. programs, services, and activities. Status: Revision of a currently This announcement contains the names The Department published its Limited approved collection. and addresses of those award recipients English Proficiency Initiative (LEPI) Authority: Section 3507 of the Paperwork selected for funding based on the rating NOFA on July 11, 2011, amended July Reduction Act of 1995, 44 U.S.C. 35, as and ranking of all applications and the 18, 2011, announcing the availability of amended. amount of the awards. $650,000 to go to up to seven Dated: October 20, 2011. FOR FURTHER INFORMATION CONTACT: organizations to make HUD programs Colette Pollard, Pamela Walsh, Director, Office of more accessible to LEP persons. This Policy, Legislative Initiatives, and Notice announces six grant awards of Departmental Reports Management Officer, Office of the Chief Information Officer. Outreach, Office of Fair Housing and approximately $100,000 each and one Equal Opportunity, Department of grant award of $50,000 for organizations [FR Doc. 2011–27660 Filed 10–25–11; 8:45 am] Housing and Urban Development, 451 to assist locally targeted LEP BILLING CODE 4210–67–P Seventh Street, SW., Room 5246, individuals. Washington, DC 20410. Telephone For the FY 2010/2011 NOFA, the DEPARTMENT OF HOUSING AND number (202) 402–7017 (this is not a Department reviewed, evaluated, and URBAN DEVELOPMENT toll-free number). Persons with hearing scored the applications received based or speech impairments may access this on the criteria in the FY 2010/2011 LEPI [Docket No. FR–5415–FA–41] number through TTY by calling the toll- NOFA. As a result, HUD has decided to free Federal Relay Service at 800–877– fund the applications announced in Announcement of Funding Awards; 8339. Appendix A, and in accordance with Limited English Proficiency Initiative SUPPLEMENTARY INFORMATION: Executive section 102(a)(4)(C) of the Department of Program (LEPI), Fiscal Year 2010/2011 Order 13166 signed in August 2000 Housing and Urban Development AGENCY: Office of the Assistant requires all federal agencies to improve Reform Act of 1989 (103 Stat. 1987, 42 Secretary for Fair Housing and Equal access to federally conducted and U.S.C. 3545), the Department is hereby Opportunity, the Department of Housing federally assisted programs and publishing details concerning the and Urban Development, HUD. activities for persons who, as a result of recipients of funding awards in ACTION: Announcement of funding national origin, are limited in the Appendix A of this document. awards. English proficiency (LEP). Each agency The Catalog of Federal Domestic is to examine the services they provide, Assistance Number for currently funded SUMMARY: In accordance with section identify any need for services to those Initiatives under the Limited English 102(a)(4)(C) of the Department of with limited English proficiency (LEP), Proficiency Initiative Program is 14.421. Housing and Urban Development and develop and implement a system to Dated: October 18, 2011. Reform Act of 1989, this announcement provide those services so LEP persons John D. Trasvin˜ a, notifies the public of funding decisions can have meaningful access to them. made by the Department for funding This LEPI NOFA sponsors organizations Assistance Secretary for Fair Housing and Equal Opportunity. under the Notice of Funding to help ensure that LEP persons can Availability (NOFA) for the Limited have meaningful access the Department Appendix A

FY 2010/2011—LIMITED ENGLISH PROFICIENCY INITIATIVE NOFA

Applicant name Contact Region Award amt.

Chhaya Community Development Center, 37–43 77th Street, 2nd Floor, Seema Agnani 718–478–3848 ...... 2 $100,000.00 Jackson Heights, NY 11372–6629. Equal Rights Center, 11 Dupont Circle NW, Washington, DC 20036 ...... Adriana Lopez 202–234–3062 ...... 3 100,000.00

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FY 2010/2011—LIMITED ENGLISH PROFICIENCY INITIATIVE NOFA—Continued

Applicant name Contact Region Award amt.

Southwest Minnesota Housing Partnership, 2401 Broadway Avenue, Suite Ali Joens 507–836–1605 ...... 5 100,000.00 4, Slayton, MN 56172–1142. International Institute of St. Louis, 3654 S. Grand Street, St. Louis, MO Suzanne LeLaurin 314–773–9090 ..... 7 99,998.00 63118–3404. Lutheran Children and Family Services, 5902 North 5th Street, Philadel- Rosemary Bauersmith 215–643– 3 99,101.00 phia, PA 19120–1824. 6335. Kurdish Human Rights Center, 10560 Main Street, Suite 207, Fairfax, VA Pary Karadaghi 703–385–3806 ...... 3 100,000.00 22030–7176. The Legal Aid Society of Hawaii, 924 Bethel Street, Honolulu, HI 96813– Elise von Dohlen 808–527–8056 ...... 9 50,000.00 4304.

[FR Doc. 2011–27668 Filed 10–25–11; 8:45 am] single factor to be applied uniformly to categories. These weights are calculated BILLING CODE 4210–67–P all projects utilizing OCAFs as the in the same manner as in HUD’s method by which renewal rents are November 8, 2010, notice. Average established or adjusted. expense proportions were calculated DEPARTMENT OF HOUSING AND LIHPRHA projects are low-income using three years of audited Annual URBAN DEVELOPMENT housing projects insured by the Federal Financial Statements from projects [Docket No. FR–5569–N–01] Housing Administration (FHA). covered by OCAFs. The expenditure LIHPRHA projects are primarily low- percentages for these nine categories Notice of Certain Operating Cost income housing projects insured under have been found to be very stable over Adjustment Factors for 2012 section 221(d)(3) below-market interest time, but using three years of data rate (BMIR) and section 236 of the increases their stability. The nine cost AGENCY: Office of the Assistant National Housing Act, respectively. component weights were calculated at Secretary for Housing—Federal Housing Both categories of projects have low- the state level, which is the lowest level Commissioner, HUD. income use restrictions that have been of geographical aggregation with enough ACTION: Notice. extended beyond the 20-year period projects to permit statistical analysis. specified in the original documents, and These data were not available for the SUMMARY: This notice establishes Western Pacific Islands, so data for operating cost adjustment factors both categories of projects also receive Hawaii were used as the best available (OCAFs) for project based assistance assistance under section 8 of the U.S. indicator of OCAFs for these areas. contracts for eligible multifamily Housing Act of 1937 to support the housing projects having an anniversary continued low-income use. The best current price data sources for date on or after February 11, 2012. MAHRA gives HUD broad discretion the nine cost categories were used in OCAFs are annual factors used to adjust in setting OCAFs—referring, for calculating annual change factors. State- Section 8 rents renewed under section example, in sections 524(a)(4)(C)(i), level data for fuel oil, electricity, and 524 of the Multifamily Assisted Housing 524(b)(1)(A), 524(b)(3)(A) and 524(c)(1) natural gas from Department of Energy Reform and Affordability Act of 1997 simply to ‘‘an operating cost adjustment surveys are relatively current and (MAHRA). factor established by the Secretary.’’ The continue to be used. Data on changes in sole limitation to this grant of authority employee benefits, insurance, property DATES: Effective Dates: February 11, is a specific requirement in each of the taxes, and water/sewer/trash costs are 2012. foregoing provisions that application of only available at the national level. The FOR FURTHER INFORMATION CONTACT: Stan an OCAF ‘‘shall not result in a negative data sources for the nine cost indicators Houle, Housing Program Manager, adjustment.’’ Contract rents are adjusted selected used were as follows: Office of Housing Assistance and Grant by applying the OCAF to that portion of • Labor Costs: First quarter, 2011 Administration, Department of Housing the rent attributable to operating Bureau of Labor Statistics (BLS) ECI, and Urban Development, 451 7th Street, expenses exclusive of debt service. Private Industry Wages and Salaries, All SW., Washington, DC 20410; telephone The OCAFs provided in this notice Workers (Series ID CIU2020000000000I) number 202–402–2572 (this is not a toll- and applicable to eligible projects at the national level and Private free number). Hearing- or speech- having a project based assistance Industry Benefits, All Workers (Series impaired individuals may access this contracts anniversary date of on or after ID CIU2030000000000I) at the national number through TTY by calling the toll- February 11, 2012, are calculated using level. free Federal Relay Service at 800–877– the same method as those published in • Property Taxes: 2009–2010 Census 8339. HUD’s 2011 OCAF notice published on Quarterly Summary of State and Local SUPPLEMENTARY INFORMATION: November 8, 2010 (75 FR 68616). Government Tax Revenue—Table 1 Specifically, OCAFs are calculated as http://www2.census.gov/govs/qtax/ I. OCAFs the sum of weighted average cost 2011/q1t1.pdf. Annual property taxes Section 514(e)(2) of MAHRA requires changes for wages, employee benefits, are computed as the total of four HUD to establish guidelines for rent property taxes, insurance, supplies and quarters of tax receipts. Total annual adjustments based on an OCAF. The equipment, fuel oil, electricity, natural taxes are then divided by number of statute requiring HUD to establish gas, and water/sewer/trash using households to arrive at average annual OCAFs for LIHPRHA projects and publicly available indices. The weights tax per household. For 2009, the projects with contract renewals or used in the OCAF calculations for each number of households is taken from the adjustments under section 524(b)(1)(A) of the nine cost component groupings estimates program at the Bureau of the of MAHRA is similar in wording and are set using current percentages Census. http://www.census.gov/popest/ intent. HUD has therefore developed a attributable to each of the nine expense housing/HU-EST2009.html. At the time

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of computation data on the number of II. MAHRA and LIHPRHA OCAF Dated: October 20, 2011. households was not yet available for Procedures Carol J. Galante, 2010 so the 2009 number was used in MAHRA, as amended, created the Acting Assistant Secretary for Housing— its place. Federal Housing Commissioner. • Goods, Supplies, Equipment: April Mark-to-Market Program to reduce the 2010 to April 2011 Bureau of Labor cost of federal housing assistance, Appendix Statistics (BLS) Consumer Price Index, enhance HUD’s administration of such All Items Less Food, Energy and shelter assistance, and ensure the continued OPERATING COST ADJUSTMENT (Series ID CUUR0000SA0L12E) at the affordability of units in certain FACTORS FOR 2012 national level. multifamily housing projects. Section • Insurance: April 2010 to April 2011 524 of MAHRA authorizes renewal of Alabama ...... 1.8 Bureau of Labor Statistic (BLS) Section 8 project-based assistance Alaska ...... 2.2 Consumer Price Index, Tenants and contracts for projects without Arizona ...... 1.8 Household Insurance Index (Series ID restructuring plans under the Mark-to- Arkansas ...... 1.3 CUUR0000SEHD) at the national level. Market Program, including projects that California ...... 2.3 • Fuel Oil: Energy Information are not eligible for a restructuring plan Colorado ...... 2.2 Agency, 2009 to 2010 Retail Price of No. and those for which the owner does not Connecticut ...... 1.6 2 Fuel Oil to Residential Consumers request such a plan. Renewals must be Delaware ...... 1.3 cents per gallon excluding taxes. at rents not exceeding comparable District of Columbia ...... 1.8 Department of Energy multi-state fuel market rents except for certain projects. Florida ...... 1.3 oil grouping averages used for the States As an example, for Section 8 Moderate Georgia ...... 1.9 with insufficient fuel oil consumption Rehabilitation projects, other than single Hawaii ...... 4.3 to have separate estimates. http:// room occupancy projects (SROs) under Idaho ...... 1.8 www.eia.gov/dnav/pet/pet_sum_mkt_a_ the McKinney-Vento Homeless Illinois ...... 2.1 EPD2_PRT_dpgal_a.htm Assistance Act (42 U.S.C. 11301 et seq.), Indiana ...... 1.2 • Electricity: Energy Information that are eligible for renewal under Iowa ...... 1.8 Agency, March 2011 ‘‘Electric Power section 524(b)(3) of MAHRA, the Kansas ...... 2.0 Monthly’’ report, Table 5.6.B. http:// renewal rents are required to be set at Kentucky ...... 1.8 Louisiana ...... 2.4 www.eia.doe.gov/cneaf/electricity/epm/ the lesser of: (1) The existing rents Maine ...... 2.5 epm_sum.html under the expiring contract, as adjusted Maryland ...... 1.3 • Natural Gas: Energy Information by the OCAF; (2) fair market rents (less any amounts allowed for tenant- Massachusetts ...... 1.0 Agency, Natural Gas, Residential Energy Michigan ...... 2.3 Price, 2009–2010 annual prices in purchased utilities); or (3) comparable market rents for the market area. Minnesota ...... 1.8 dollars per 1,000 cubic feet at the state Mississippi ...... 1.6 LIHPRHA (see, in particular, section level. Due to EIA data quality standards Missouri ...... 2.1 222(a)(2)(G)(i), 12 U.S.C. 4112 (a)(2)(G) several states were missing data for one Montana ...... 1.4 or two months in 2010; in these cases, and HUD’s regulations at 24 CFR. Nebraska ...... 1.8 data for these missing months were 248.145(a)(9)) requires that future rent Nevada ...... 1.7 estimated using data from the adjustments for LIHPRHA projects be New Hampshire ...... 2.0 surrounding months in 2010 and the made by applying an annual factor, to New Jersey ...... 1.2 relationship between that same month be determined by HUD to the portion of New Mexico ...... 2.2 and the surrounding months in 2009. project rent attributable to operating New York ...... 2.4 http://www.eia.doe.gov/dnav/ng/ng_ expenses for the project and, where the North Carolina ...... 1.9 pri_sum_a_EPG0_PRS_DMcf_a.htm owner is a priority purchaser, to the North Dakota ...... 2.1 • Water and Sewer: April 2010 to portion of project rent attributable to Ohio ...... 1.7 April 2011 Consumer Price Index, All project oversight costs. Oklahoma ...... 2.2 Urban Consumers, Water and Sewer and III. Findings and Certifications Oregon ...... 2.0 Trash Collection Services (Series ID Pacific Islands ...... 1.9 CUUR0000SEHG) at the national level. Environmental Impact Pennsylvania ...... 2.0 The sum of the nine cost component Puerto Rico ...... 2.0 percentage weights equals 100 percent This issuance sets forth rate Rhode Island ...... 1.7 of operating costs for purposes of OCAF determinations and related external South Carolina ...... 1.9 calculations. To calculate the OCAFs, administrative requirements and South Dakota ...... 2.3 state-level cost component weights procedures that do not constitute a Tennessee ...... 1.6 developed from AFS data are multiplied development decision affecting the Texas ...... 1.3 by the selected inflation factors. For physical condition of specific project Utah ...... 1.8 instance, if wages in Virginia comprised areas or building sites. Accordingly, Vermont ...... 3.3 50 percent of total operating cost under 24 CFR 50.19(c)(6), this notice is Virgin Islands ...... 2.3 expenses and increased by 4 percent categorically excluded from Virginia ...... 1.6 from 2009 to 2010, the wage increase environmental review under the Washington ...... 2.3 component of the Virginia OCAF for National Environmental Policy Act of West Virginia ...... 2.3 2012 would be 2.0 percent (50% * 4%). 1969 (42 U.S.C. 4321). Wisconsin ...... 1.9 Wyoming ...... 1.6 This 2.0 percent would then be added Catalog of Federal Domestic Assistance U.S. Average ...... 1.8 to the increases for the other eight Number expense categories to calculate the 2012 OCAF for Virginia. The OCAFs for 2012 The Catalog of Federal Domestic [FR Doc. 2011–27816 Filed 10–24–11; 4:15 pm] are included as an Appendix to this Assistance Number for this program is BILLING CODE 4210–67–P Notice. 14.187.

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DEPARTMENT OF THE INTERIOR response to the high level of interest we gave an incorrect contact phone have received. number, which we now correct. Note Fish and Wildlife Service that if you already submitted a Document Availability [FWS–R4–R–2011–N216;40136–1265–0000– comment, you need not resubmit it. S3] Copies of the draft land protection plan and environmental assessment are DATES: Please provide your comments Proposed Establishment of Everglades available by writing to the U.S. mail by November 17, 2011. Headwaters National Wildlife Refuge address and e-mail address under ADDRESSES: The Draft LRTP is available and Conservation Area; Draft Land ADDRESSES as listed above, or by calling on our Web site at http://www.fws.gov/ Protection Plan and Environmental 321/861–0067 (telephone), 321/861– pacific/planning/. We also have a Assessment 1276 (fax). Alternatively, you may limited number of printed and CD–ROM download the document from our copies of the Draft LRTP. You may AGENCY: Fish and Wildlife Service, Internet Site at http://www.fws.gov/ Interior. request a copy or submit comments by southeast/evergladesheadwaters/. any of the following methods: ACTION: Notice of availability; extension of comment period. Public Availability of Comments • E-mail: Before including your address, phone [email protected]. SUMMARY: We, the Fish and Wildlife number, e-mail address, or other • U.S. Mail: Jeff Holm, Regional Service (Service), advise the public that personal identifying information in your Transportation Coordinator, U.S. Fish we are extending the public comment comment, you should be aware that and Wildlife Service, 911 NE., 11th period for the proposed establishment of your entire comment—including your Avenue, Portland, OR 97232. the Everglades Headwaters National personal identifying information—may • Fax: Attn: Jeff Holm, (503) 231– Wildlife Refuge (NWR) and be made publicly available at any time. 2364. Conservation Area. If you have While you may ask us in your comment previously submitted comments, please to withhold your personal identifying • In-Person Viewing or Drop-off: do not resubmit them, because we have information from public review, we During regular business hours to Jeff already incorporated them in the public cannot guarantee that we will be able to Holm, Regional Transportation record and will fully consider them in do so. Coordinator, U.S. Fish and Wildlife our final decision. Service, 911 NE., 11th Avenue, DATES: To ensure consideration, please Authority Portland, OR 97232. send your written comments by This notice is published under the FOR FURTHER INFORMATION CONTACT: Jeff November 25, 2011. authority of the National Wildlife Holm, 503–231–2161. ADDRESSES: Send comments concerning Refuge System Improvement Act of the draft land protection plan and 1997, Public Law 105–57. SUPPLEMENTARY INFORMATION: On environmental assessment to Everglades Dated: October 21, 2011. October 18, 2011, via a Federal Register Headwaters Proposal, by U.S. mail at Paul Steblein, notice (76 FR 64376), we announced the U.S. Fish and Wildlife Service, P.O. Box availability of the final draft Long Range Acting Assistant Director, National Wildlife 2683, Titusville, FL 32781–2683, by e- Refuge System. Transportation Plan (LRTP) for public mail at EvergladesHeadwaters review and comment. However, in that [FR Doc. 2011–27748 Filed 10–24–11; 8:45 am] [email protected], or to 321/861–1276 notice, we gave an incorrect contact BILLING CODE 4310–55–P (fax). For document availability, see phone number under FOR FURTHER below. INFORMATION CONTACT. We now supply FOR FURTHER INFORMATION CONTACT: Ms. DEPARTMENT OF THE INTERIOR the correct phone number, which is Cheri M. Ehrhardt, Natural Resource 503–231–2161. Note that if you already Planner, at 321/861–2368 (telephone) or Fish and Wildlife Service submitted a comment, you need not resubmit it. Mr. Charlie Pelizza, Refuge Manager, at [FWS–R1–R–2011–N225; 10137–8555– 772/562–3909, extension 244 11RG–8H] Before including your address, phone (telephone). number, e-mail address, or other SUPPLEMENTARY INFORMATION: On Long Range Transportation Plan for personal identifying information in your September 8, 2011, we published a Fish and Wildlife Service Lands in comment, you should be aware that Federal Register notice (76 FR 55699) Hawai‘i, Idaho, Northern Nevada, your entire comment—including your announcing the proposed establishment Oregon, Washington, and the Pacific personal identifying information—may of the Everglades Headwaters NWR and Island Territories; Correction be made publicly available at any time. While you can ask us in your comment Conservation Area in Polk, Osceola, AGENCY: Fish and Wildlife Service, to withhold your personal identifying Highlands, and Okeechobee Counties in Interior. central and south Florida in accordance information from public review, we ACTION: Notice of availability; request cannot guarantee that we will be able to with the National Environmental Policy for comments. Act (40 CFR 1506.6 (b)) requirements. do so. We originally opened this comment SUMMARY: On October 18, 2011, via a For more information about the Draft period on September 8, 2011 (76 FR Federal Register notice, we, the U.S. LRTP, and its mission, goals, and 55699). For background and more Fish and Wildlife Service, announced objectives, see our October 18, 2011, information on the proposed the availability of the final draft Long notice. establishment of the Everglades Range Transportation Plan (LRTP) for Dated: October 20, 2011. Headwaters NWR and Conservation our lands in Hawai‘i, Idaho, Northern Area, please see that notice. We are Nevada, Oregon, Washington, and the Sara Prigan, extending the public comment period Pacific Island Territories (the Service’s Federal Register Liaison. on the proposed establishment of this Region 1) for public review and [FR Doc. 2011–27666 Filed 10–25–11; 8:45 am] refuge and conservation area in comment. However, in that notice we BILLING CODE 4310–55–P

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DEPARTMENT OF THE INTERIOR The plat representing the dependent State Office, Portland, Oregon, 30 days resurvey of a portion of the from the date of this publication. Bureau of Land Management subdivisional lines, and the subdivision Willamette Meridian [LLID9570000.LL14200000.BJ0000] of sec. 25, T. 46 N., R. 5 W., Boise Meridian, Idaho, Group Number 1301, Oregon Idaho: Filing of Plats of Survey was accepted July 15, 2011. T. 20 S., R. 4 W., The plat representing the dependent accepted October 7, 2011. AGENCY: Bureau of Land Management, resurvey of a portion of the west Interior. T. 29 S., R. 6 W., boundary and a metes-and-bounds accepted October 7, 2011. ACTION: Notice of Filing of Plats of survey in section 13, T. 45 N., R. 6 W., T. 29 S., R. 7 W., Surveys. of the Boise Meridian, Idaho, Group accepted October 7, 2011. Number 1256, was accepted September SUMMARY: The Bureau of Land T. 4 S., R. 2 E., Management (BLM) has officially filed 12, 2011. accepted October 7, 2011. the plats of survey of the lands The supplemental plat in 34, T. 37 N., T. 9 S., R. 2 E., described below in the BLM Idaho State R. 1 E., Boise Meridian, Idaho, Group accepted October 7, 2011. Office, Boise, Idaho, effective 9 a.m., on Number 1346, was prepared to show T. 4 N., R. 3 W., the dates specified. amended lottings, was accepted accepted October 14, 2011. September 30, 2011. T. 16 S., R. 1 W., FOR FURTHER INFORMATION CONTACT: These surveys were executed at the accepted October 14, 2011. Bureau of Land Management, 1387 request of the U.S. Forest Service to T. 27 S., R. 12 W. South Vinnell Way, Boise, Idaho 83709– meet their administrative needs. The accepted October 14, 2011. 1657. lands surveyed are: T. 38 S., R. 1 W., SUPPLEMENTARY INFORMATION: These The supplemental plat in sec. 22, T. accepted October 14, 2011. surveys were executed at the request of 54 N., R. 2 W., Boise Meridian, Idaho, Washington the BLM to meet their administrative Group Number 1364, was prepared to needs. The lands surveyed are: show amended lottings, was accepted T. 23 N., R. 10 W., The plat representing the dependent September 30, 2011. accepted October 14, 2011. resurvey of portions of T. 7 S., R. 2 E., SUMMARY:The Bureau of Land T. 8 S., R. 4 E., T. 10 S., R. 3 E., and ADDRESSES: A copy of the plats may be Management (BLM) will file the plat of obtained from the Land Office at the T. 10 S., R. 4 ., of the Boise Meridian, survey of the lands described below in Idaho, Group Number 1317, was Bureau of Land Management, Oregon/ the BLM Idaho State Office, Boise, Washington State Office, 333 SW., 1st accepted July 22, 2011. Idaho, 30 days from the date of The plat representing the dependent Avenue, Portland, Oregon 97204, upon publication in the Federal Register. resurvey of a portion of the north required payment. A person or party This survey was executed at the request boundary and a portion of the who wishes to protest against a survey of the U.S. Fish and Wildlife Service to subdivisional lines, and a portion of the must file a notice that they wish to meet certain administrative and boundaries of mineral survey No. 3416 protest (at the above address) with the management purposes. in sections 1, 2, and 3, T. 47 N., R. 4 The plats constituting the entire Oregon/Washington State Director, E., of the Boise Meridian, Idaho, Group survey record of the survey of certain Bureau of Land Management, Portland, Number 1246, was accepted September islands in the Snake River, Tps 1 and 2 Oregon. 16, 2011. The plat representing the dependent N., R. 3 W., T. 2 N., R. 4 W., T. 3 N., FOR FURTHER INFORMATION CONTACT: Kyle resurvey of a portion of the R. 4 W., T. 3 N., R. 5 W., and T. 4 N., Hensley, (503) 808–6124, Branch of subdivisional lines, and a metes-and- R. 5 W., Boise Meridian, Idaho, were Geographic Sciences, Bureau of Land accepted July 29, 2011. bounds survey in sections 5 and 8, T. 11 Management, 333 SW., 1st Avenue, N., R. 17 E., of the Boise Meridian, Dated: October 7, 2011. Portland, Oregon 97204. Persons who Idaho, Group Number 1322, was Bruce E. Ogonowski, use a telecommunications device for the accepted September 19, 2011. Acting Chief Cadastral Surveyor for Idaho. deaf (TDD) may call the Federal These surveys were executed at the [FR Doc. 2011–27665 Filed 10–25–11; 8:45 am] Information Relay Service (FIRS) at 1– request of the Bureau of Indian Affairs BILLING CODE 4310–GG–P 800–877–8339 to contact the above to meet their administrative needs. The individual during normal business lands surveyed are: hours. The FIRS is available 24 hours a The plat representing the dependent DEPARTMENT OF THE INTERIOR day, 7 days a week, to leave a message resurvey of portions of the 7th Standard Parallel North (north boundary) and Bureau of Land Management or question with the above individual. subdivisional lines, and the subdivision You will receive a reply during normal of sections 3, 11, 14, and 23, T. 35 N., [LLOR957000–L63100000–HD0000: HAG12– business hours. 0018] R. 1 E., Boise Meridian, Idaho, Group SUPPLEMENTARY INFORMATION: Before Number 1233, was accepted July 13, Filing of Plats of Survey: Oregon/ including your address, phone number, 2011. Washington e-mail address, or other personal The plat representing the dependent identifying information in your resurvey of portions of the west AGENCY: Bureau of Land Management, comment, you should be aware that boundary and subdivisional lines, and Interior. your entire comment—including your the subdivision of secs. 19 and 30, and ACTION: Notice. personal identifying information—may the metes-and-bounds survey of lots 7, be made publicly available at any time. 8, 9, and 10, in sec. 30, T. 46 N., R. 4 SUMMARY: The plats of survey of the W., Boise Meridian, Idaho, Group following described lands are scheduled While you can ask us in your comment Number 1299, was accepted July 15, to be officially filed in the Bureau of to withhold your personal identifying 2011. Land Management Oregon/Washington information from public review, we

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cannot guarantee that we will be able to KENTUCKY Sullivan County do so. Calloway County Piney Flats Historic District, Main, McKamey, & Methodist Church Sts. & parts Mary J.M. Hartel, Murray Woman’s Club Clubhouse, The, 704 of Tank Hill, Piney Flats, Austin Springs & Chief, Chief, Cadastral Surveyor of Oregon/ Vine St., Murray, 11000792 Mountain View Rds., Piney Flats, Washington. Kenton County 11000808 [FR Doc. 2011–27649 Filed 10–25–11; 8:45 am] LaSalette Academy, 702 Greenup St., Washington County BILLING CODE 4310–33–P Covington, 11000791 Johnson City Country Club, 1901 E. Unaka Laurel County Ave., Johnson City, 11000809 DEPARTMENT OF THE INTERIOR London Downtown Historic District, Main St. WISCONSIN between W. 6th & W. 5th Sts., London, Ozaukee County National Park Service 11000793 ISLAND CITY (schooner) Shipwreck, (Great Livingston County Lakes Shipwreck Sites of Wisconsin MPS) [NPS–WASO–NRNHL–1011–8618; 2200– Livingston County Courthouse and Clerk’s 9 mi. SE. of Port Washington in Lake 3200–665] Offices, 351 Court St., Smithland, Michigan, Mequon, 11000810 11000794 National Register of Historic Places; Sheboygan County Notification of Pending Nominations Mercer County WALTER B. ALLEN (canaller) Shipwreck, and Related Actions Lexington and Cane Run Historic District, E. (Great Lakes Shipwreck Sites of Wisconsin Lexington & Cane Run Sts., Harrodsburg, MPS) 7 mi. NE. of Sheboygan in Lake Nominations for the following 11000795 Michigan, Mosel, 11000811 properties being considered for listing North Main Street Historic District, 105–414 A request for REMOVAL has been made for or related actions in the National N. Main St., 109 W. Lexington, 101 W. the following resources: Register were received by the National Broadway, 163 E. Broadway, Harrodsburg, TENNESSEE Park Service before October 1, 2011. 11000796 Williamson County Pursuant to section 60.13 of 36 CFR part Baldwin’s Tourist Court Residence—Office, 60, written comments are being 321 W. Stephen Foster Ave., Bardstown, Lamb—Stevens House, (Williamson County 11000797 1 2 accepted concerning the significance of MRA) Burke Hollow Rd. 1 ⁄ mi. E of Wilson Pike, Franklin, 88000299 the nominated properties under the Kurtz Restaurant and Bardstown—Parkview Motel—Office, 418 E. Stephen Foster Ave., National Register criteria for evaluation. Russwurm, John S., House, (Williamson Bardstown, 11000798 County MRA) Spann Town Rd. 1⁄2 mi. E of Comments may be forwarded by United US Alt. 41, Triune, 88000349 States Postal Service, to the National Old Kentucky Home Motel, 414 Stephen Foster Ave., Bardstown, 11000799 Register of Historic Places, National [FR Doc. 2011–27640 Filed 10–25–11; 8:45 am] Park Service, 1849 C St., NW., MS 2280, Wilson Motel, 530 N. 3rd St., Bardstown, BILLING CODE 4312–51–P 11000800 Washington, DC 20240; by all other carriers, National Register of Historic Todd County DEPARTMENT OF THE INTERIOR Places, National Park Service,1201 Eye Guthrie Historic District, Roughly bounded St., NW., 8th floor, Washington DC by Ewing, Park & Cherry Sts., Guthrie, Office of Surface Mining Reclamation 20005; or by fax, 202–371–6447. Written 11000801 and Enforcement or faxed comments should be submitted Warren County by November 10, 2011. Before including Hardcastle Store, The, 7286 Cemetery Rd., Notice of Proposed Information your address, phone number, e-mail Bowling Green, 11000802 Collection address, or other personal identifying information in your comment, you Washington County AGENCY: Office of Surface Mining should be aware that your entire Springfield Main Street Historic District, Reclamation and Enforcement. comment—including your personal Roughly Commercial Ave. to College St. & ACTION: Notice and request for identifying information—may be made McCord, High Sts. to E. Depot St., comments. publicly available at any time. While Springfield, 11000803 SUMMARY: In compliance with the you can ask us in your comment to LOUISIANA Paperwork Reduction Act of 1995, the withhold your personal identifying Orleans Parish Office of Surface Mining Reclamation information from public review, we and Enforcement (OSM) is announcing cannot guarantee that we will be able to Lykes Brothers Steamship Company Historic that the information collection request do so. District, 1770, 1744–46 Tchoupitoulas St., New Orleans, 11000804 related to the certification of blasters in J. Paul Loether, NEW YORK Federal program states and on Indian Chief, National Register of Historic Places, lands, and Form OSM–74, has been National Historic Landmarks Program. Monroe County forwarded to the Office of Management Brockport Central Rural High School, 40 and Budget (OMB) for review and AMERICAN SAMOA Allen St., Brockport, 11000805 reauthorization. The information Eastern District TENNESSEE collection package was previously U.S. Naval Station Tutuila Samoa Hydro approved and assigned clearance Davidson County Electric Plant, Pipeline, and Dam, Off end number 1029–0083. This notice of Main Rd., Fagatogo, 11000789 Park—Elkins Historic District, Roughly along describes the nature of the information Park & Elkins between 42nd & 50th Aves., collection activity and the expected GEORGIA Nashville, 11000806 burdens and costs. Crawford County Lincoln County DATES: OMB has up to 60 days to Hawkins, Col. Benjamin, Gravesite, Benjamin Whitaker—Motlow House, 740 Lynchburg approve or disapprove the information Hawkins Rd., Roberta, 11000790 Hwy., Mulberry, 11000807 collection but may respond after 30

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days. Therefore, public comments Summary: This information is being Advanced Media Workflow Association, should be submitted to OMB by collected to ensure that the applicants Inc. has filed written notifications November 25, 2011, in order to be for blaster certification are qualified. simultaneously with the Attorney assured of consideration. This information, with blasting tests, General and the Federal Trade ADDRESSES: Submit comments to the will be used to determine the eligibility Commission disclosing changes in its Office of Information and Regulatory of the applicant. The affected public membership. The notifications were Affairs, Office of Management and will be blasters who want to be certified filed for the purpose of extending the Budget, Attention: Department of the by the Office of Surface Mining Act’s provisions limiting the recovery of Interior Desk Officer, by telefax at (202) Reclamation and Enforcement to antitrust plaintiffs to actual damages 395–5806 or via e-mail to conduct blasting on Indian lands or in under specified circumstances. [email protected]. Also, Federal program states. Specifically, Isilon Systems, Inc., please send a copy of your comments to Bureau Form Number: OSM–74. Seattle, WA; Panasonic AVC Networks John Trelease, Office of Surface Mining Frequency of Collection: On occasion. Company, Kadoma City, Osaka, JAPAN; Reclamation and Enforcement, 1951 Description of Respondents: VSN Video Steam Networks, S.L., Constitution Ave., NW., Room 203— Individuals intent on being certified as Barcelona, SPAIN; Yangaroo, Inc., SIB, Washington, DC 20240, or blasters in Federal program states and Toronto, Ontario, CANADA; Patrick electronically to [email protected]. on Indian lands. Cusack (individual member), Los Total Annual Responses: 44 blasters. Angeles, CA; and James Trainor FOR FURTHER INFORMATION CONTACT: To Total Annual Burden Hours: 110 receive a copy of the information (individual member), Kanata, Ontario, hours. CANADA, have been added as parties to collection request contact John Trelease Total Annual Non-Wage Burden Cost: at (202) 208–2783, or electronically at this venture. $3,782. Also, Chime Media, Weston, VA; [email protected]. You may also Send comments on the need for the E!Entertainment, Los Angeles, CA; and review this collection request by going collection of information for the MAGIX AG, Berlin, GERMANY, have to http://www.reginfo.gov (Information performance of the functions of the Collection Review, Currently Under withdrawn as parties to this venture. agency; the accuracy of the agency’s No other changes have been made in Review, Agency is Department of the burden estimates; ways to enhance the either the membership or planned Interior, DOI–OSMRE). quality, utility and clarity of the activity of the group research project. SUPPLEMENTARY INFORMATION: The Office information collection; and ways to Membership in this group research of Management and Budget (OMB) minimize the information collection project remains open, and Advanced regulations at 5 CFR 1320, which burden on respondents, such as use of Media Workflow Association, Inc. implement provisions of the Paperwork automated means of collection of the intends to file additional written Reduction Act of 1995 (Pub. L. 104–13), information, to the addresses listed notifications disclosing all changes in require that interested members of the under ADDRESSES. Please refer to OMB membership. public and affected agencies have an control number 1029–0083 in your On March 28, 2000, Advanced Media opportunity to comment on information correspondence. Workflow Association, Inc. filed its collection and recordkeeping activities Before including your address, phone original notification pursuant to Section [see 5 CFR 1320.8(d)]. OSM has number, e-mail address, or other 6(a) of the Act. The Department of submitted a request to OMB to renew its personal identifying information in your Justice published a notice in the Federal approval for the collection of comment, you should be aware that Register pursuant to Section 6(b) of the information for 30 CFR 955 and the your entire comment—including your Act on June 29, 2000 (65 FR 40127). Form OSM–74, Certification of Blasters personal identifying information—may The last notification was filed with in Federal program states and on Indian be made publicly available at any time. the Department on June 23, 2011. A lands. OSM is requesting a 3-year term While you can ask us in your comment notice was published in the Federal of approval for these information to withhold your personal identifying Register pursuant to Section 6(b) of the collection activities. information from public review, we Act on July 20, 2011 (76 FR 43347). An agency may not conduct or cannot guarantee that we will be able to sponsor, and a person is not required to do so. Patricia A. Brink, Director of Civil Enforcement, Antitrust respond to, a collection of information Dated: October 19, 2011. Division. unless it displays a currently valid OMB John A. Trelease, control number. The OMB control [FR Doc. 2011–27399 Filed 10–25–11; 8:45 am] Acting Chief, Division of Regulatory Support. number for this collection of BILLING CODE 4410–11–M information is listed in 30 CFR 955.10 [FR Doc. 2011–27401 Filed 10–25–11; 8:45 am] and on the Form OSM–74, which is BILLING CODE 4310–05–M 1029–0083. DEPARTMENT OF JUSTICE As required under 5 CFR 1320.8(d), a Federal Register notice soliciting DEPARTMENT OF JUSTICE Antitrust Division comments on the collection of Antitrust Division Notice Pursuant to the National information was published on June 28, Cooperative Research and Production 2011 (76 FR 37829). No comments were Notice Pursuant to the National Act of 1993—Cooperative Research received from that notice. This notice Cooperative Research and Production Group on Nasgro Development and provides the public with an additional Act of 1993—Advanced Media Support 30 days in which to comment on the Workflow Association, Inc. following information collection Notice is hereby given that, on activity: Notice is hereby given that, on October 3, 2011, pursuant to Section Title: 30 CFR 955—Certification of September 26, 2011, pursuant to Section 6(a) of the National Cooperative Blasters in Federal Program States and 6(a) of the National Cooperative Research and Production Act of 1993, on Indian Lands. Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), OMB Control Number: 1029–0083. 15 U.S.C. 4301 et seq. (‘‘the Act’’), Southwest Research Institute—

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Cooperative Research Group on Environment (‘‘Model-CFM’’) has filed way to ensure your comments are NASGRO Development and Support written notifications simultaneously received is to e-mail them to oira_ (‘‘NASGRO’’) has filed written with the Attorney General and the [email protected] or fax them to notifications simultaneously with the Federal Trade Commission disclosing 202–395–7285. All comments should Attorney General and the Federal Trade changes in its membership. The reference the 8 digit OMB number for Commission disclosing changes in its notifications were filed for the purpose the collection or the title of the membership and period of performance. of extending the Act’s provisions collection. If you have questions The notifications were filed for the limiting the recovery of antitrust concerning the collection, please call purpose of extending the Act’s plaintiffs to actual damages under Jason Combs at 540–868–4995, or the provisions limiting the recovery of specified circumstances. Specifically, DOJ Desk Officer at 202–395–3176. antitrust plaintiffs to actual damages Shell Global Solutions US Inc., Written comments and suggestions under specified circumstances. Houston, TX, has been added as a party from the public and affected agencies Specifically, Alcoa Technical Center, to this venture. concerning the proposed collection of New York, NY; Honda R&D Co., Ltd., No other changes have been made in information are encouraged. Comments Saitama, JAPAN; Space Exploration either the membership or planned should address one or more of the Technologies Corp., Hawthorne, CA; activity of the group research project. following four points: United Launch Alliance, Littleton, CO; Membership in this group research (1) Evaluate whether the proposed Agusta Westland, Casina Costa di project remains open, and Model-CFM collection of information is necessary Samarate, ITALY; and Mitsubishi Heavy intends to file additional written for the proper performance of the Industries, Ltd., Nagoya, JAPAN, have notifications disclosing all changes in functions of the agency, including been added as parties to this venture. membership. whether the information will have Additionally, the period of performance On May 17, 2011, Model-CFM filed its practical utility; has been extended to June 30, 2013. original notification pursuant to Section (2) Evaluate the accuracy of the No other changes have been made in 6(a) of the Act. The Department of agency’s estimate of the burden of the either the membership or planned Justice published a notice in the Federal proposed collection of information, activity of the group research project. Register pursuant to Section 6(b) of the including the validity of the Membership in this group research Act on July 7, 2011 (76 FR 39901). methodology and assumptions used; project remains open, and NASGRO (3) Enhance the quality, utility, and intends to file additional written Patricia A. Brink, clarity of the information to be notifications disclosing all changes in Director of Civil Enforcement, Antitrust collected; and membership. Division. (4) Minimize the burden of the On October 3, 2001, NASGRO filed its [FR Doc. 2011–27398 Filed 10–25–11; 8:45 am] collection of information on those who original notification pursuant to Section BILLING CODE 4410–11–M are to respond, including through the 6(a) of the Act. The Department of use of appropriate automated, Justice published a notice in the Federal electronic, mechanical, or other Register pursuant to Section 6(b) of the DEPARTMENT OF JUSTICE technological collection techniques of Act on January 22, 2002 (67 FR 2910). other forms of information technology, The last notification was filed with Federal Bureau of Investigation e.g., permitting electronic submission of the Department on July 22, 2008. A [OMB Number 1110-New] responses. notice was published in the Federal Overview of This Information Register pursuant to Section 6(b) of the Agency Information Collection Collection: Act on August 18, 2008 (73 FR 48242). Activities: Proposed Collection, Comments Requested; E–FOIA (1) Type of information collection: Patricia A. Brink, Revision of a currently approved Director of Civil Enforcement, Antitrust ACTION: 60-day notice of information collection. Division. collection under review. (2) The title of the form/collection: E– [FR Doc. 2011–27400 Filed 10–25–11; 8:45 am] FOIA Submission Form. BILLING CODE 4410–11–P The Department of Justice, Federal (3) The agency form number, if any, Bureau of Investigation, Records and the applicable component of the Management Division Record department sponsoring the collection: DEPARTMENT OF JUSTICE Information Dissemination Section Records Management Division/Record (RIDS) will be submitting the following Information Dissemination Section, Antitrust Division information collection request to the Federal Bureau of Investigation, Notice Pursuant to the National Office of Management and Budget Department of Justice. Cooperative Research and Production (OMB) for review and clearance in (4) Affected public who will be asked Act of 1993—Cooperative Research accordance with established review or required to respond, as well as a brief Group on Development of a Predictive procedures of the Paperwork Reduction abstract: Model for Corrosion-Fatigue of Act of 1995. The proposed information Primary: FOIA requesters (general Materials in Sour Environment collection is published to obtain public, educational institutions, comments from the public and affected commercial requesters etc). Notice is hereby given that, on agencies. Comments are encouraged and Abstract: The Record/Information September 26, 2011, pursuant to Section will be accepted until December 27, Dissemination Section (RIDS) effectively 6(a) of the National Cooperative 2011. This process is conducted in plans, develops, directs, and manages Research and Production Act of 1993, accordance with 5 CFR 1320.10. responses to requests for access to FBI 15 U.S.C. 4301 et seq. (‘‘the Act’’), Written comments concerning this records and information. The requests Southwest Research Institute— information collection should be sent to and disclosure comply with the Cooperative Research Group on the Office of Information and Regulatory Freedom of Information and Privacy Development of a Predictive Model for Affairs, Office of Management and Acts (Title 5, United States Code, Corrosion-Fatigue of Materials in Sour Budget, Attn: DOJ Desk Officer. The best Sections 552 and 552a) and the Freedom

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of Information Act Executive Order Identification Index system for collection request (ICR) titled, ‘‘Well- 13392, as well as the Classified National noncriminal justice purposes. being Supplement to the American Security Information Executive Order Matters for discussion are expected to Time Use Survey,’’ to the Office of 13526, other Presidential, Attorney include: Management and Budget (OMB) for General, and FBI policies, procedures, (1) Changes to the Security and review and approval for use in and mandates; judicial decisions; and Management Control Outsourcing accordance with the Paperwork Congressional directives. Standards; Reduction Act (PRA) of 1995 (44 U.S.C. (5) An estimate of the total number of (2) National Fingerprint File (NFF) 3501 et seq.). respondents and the amount of time State Audit Criteria Changes; and DATES: Submit comments on or before estimated for an average respondent to (3) Guiding principle documents for November 25, 2011. privacy during the fingerprint-based respond: Of the approximately 18,445 ADDRESSES: A copy of this ICR with background check process. government entities that are eligible to applicable supporting documentation; The meeting will be open to the submit cases, it is estimated that twenty including a description of the likely public on a first-come, first-seated basis. to thirty percent will actually submit respondents, proposed frequency of Any member of the public wishing to cases to RMD/RIDS. The time burden of response, and estimated total burden file a written statement with the Council the respondents is less than 15 minutes may be obtained from the RegInfo.gov or wishing to address this session of the per form. Web site, http://www.reginfo.gov/ Council should notify the Federal (6) An estimate of the total public public/do/PRAMain, on the day Bureau Of Investigation (FBI) Compact burden (in hours) associated with this following publication of this notice or Officer, Mr. Gary S. Barron at (304) 625– collection: There are approximately by contacting Michel Smyth by 2803, at least 24 hours prior to the start 1,350 hours, annual burden, associated telephone at 202–693–4129 (this is not of the session. The notification should with this information collection. a toll-free number) or sending an e-mail contain the requestor’s name and If additional information is required to [email protected]. corporate designation, consumer contact: Jerri Murray, Department Submit comments about this request affiliation, or government designation, Clearance Officer, Policy and Planning to the Office of Information and along with a short statement describing Staff, Justice Management Division, Regulatory Affairs, Attn: OMB Desk the topic to be addressed and the time United States Department of Justice, 145 Officer for the Department of Labor, needed for the presentation. Requesters N Street, NE., Room 2E–508, Bureau of Labor Statistics (BLS), Office will ordinarily be allowed up to 15 Washington, DC 20530. of Management and Budget, Room minutes to present a topic. Jerri Murray, 10235, Washington, DC 20503, DATES AND TIMES: The Council will meet Telephone: 202–395–6929/Fax: 202– Department Clearance Officer, PRA, United in open session from 9 a.m. until 5 p.m., States Department of Justice. 395–6881 (these are not toll-free on December 08–09, 2011. numbers), e-mail: [FR Doc. 2011–27605 Filed 10–25–11; 8:45 am] ADDRESSES: The meeting will take place [email protected]. BILLING CODE 4410–02–P at the Hyatt Regency Albuquerque, 330 FOR FURTHER INFORMATION: Contact Tijeras Avenue NW., Albuquerque, New Michel Smyth by telephone at 202–693– Mexico, telephone (505) 842–1234. DEPARTMENT OF JUSTICE 4129 (this is not a toll-free number) or FOR FURTHER INFORMATION CONTACT: by e-mail at Federal Bureau of Investigation Inquiries may be addressed to Mr. Gary [email protected]. S. Barron, FBI Compact Officer, Meeting of the Compact Council for the Compact Council Office, Module D3, SUPPLEMENTARY INFORMATION: This ICR National Crime Prevention and Privacy 1000 Custer Hollow Road, Clarksburg, seeks approval for a new information Compact West Virginia 26306, telephone (304) collection. The American Time Use 625–2803, facsimile (304) 625–2868. Survey (ATUS) is the first national AGENCY: Federal Bureau of Federally administered continuous Investigation. Dated: October 11, 2011. survey on time use in the United States. Kimberly J. Del Greco, ACTION: Meeting notice. The ATUS measures, for example, time Section Chief, Biometric Services Section, spent with children, working, sleeping, SUMMARY: The purpose of this notice is Criminal Justice Information, Services or doing leisure activities. The Well- to announce a meeting of the National Division, Federal Bureau of Investigation. being Module questions, if approved, Crime Prevention and Privacy Compact [FR Doc. 2011–27546 Filed 10–25–11; 8:45 am] would be asked immediately after the Council (Council) created by the BILLING CODE 4410–02–M ATUS and would follow up on some of National Crime Prevention and Privacy the information ATUS respondents Compact Act of 1998 (Compact). Thus provide in their time diary. The Well- far, the Federal Government and 29 DEPARTMENT OF LABOR being Module would collect information states are parties to the Compact which about how people experience their time, governs the exchange of criminal history Office of the Secretary specifically how happy, tired, sad, records for licensing, employment, and stressed, and in pain they felt the day Agency Information Collection similar purposes. The Compact also before the interview. Respondents Activities; Submission for OMB provides a legal framework for the would be asked these questions about Review; Comment Request; Well-Being establishment of a cooperative federal- three randomly selected activities from Supplement to the American Time Use state system to exchange such records. the activities reported in the ATUS time Survey The United States Attorney General diary. The time diary refers to the core appointed 15 persons from state and ACTION: Notice. part of the ATUS, in which respondents federal agencies to serve on the Council. report the activities they did from 4 a.m. The Council will prescribe system rules SUMMARY: The Department of Labor on the day before the interview to 4 a.m. and procedures for the effective and (DOL) is submitting the Bureau of Labor on the day of the interview. A few proper operation of the Interstate Statistics (BLS) sponsored information activities, such as sleeping and private

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activities, will never be selected. The • Enhance the quality, utility, and Department of Labor issued a module also would collect data on clarity of the information to be Certification of Eligibility to Apply for whether people were interacting with collected; and Worker Adjustment Assistance and anyone while doing the selected • Minimize the burden of the Alternative Trade Adjustment activities and how meaningful the collection of information on those who Assistance on September 1, 2011, activities were to them. Some general are to respond, including through the applicable to workers of Iron Mountain health questions, a question about use of appropriate automated, Information Management, Inc., overall life satisfaction, and a question electronic, mechanical, or other Corporate Service Group, Information about respondents’ overall emotional technological collection techniques or Technology (IT) Division, including on- experience the day before also would be other forms of information technology, site leased workers from TEK Systems, asked. The proposed Well-being Module e.g., permitting electronic submission of Professional Alternative, Randstad US/ is nearly identical to a module that was responses. Sapphire Technologies, Spherion collected in 2010 under the ATUS, Agency: Bureau of Labor Statistics Staffing Services/Technisource and approved under OMB Number (1220– (BLS). Manpower, Boston, Massachusetts and 0175). Title of Collection: Well-being including off-site workers from Data from the proposed Wellbeing Supplement to the American Time Use California, Florida, Louisiana, Module will support the BLS mission of Survey. Massachusetts, Michigan, Missouri, providing relevant information on OMB ICR Reference Number: 201108– North Carolina, New Jersey, Nevada, economic and social issues. The data 1220–001. Oregon, Pennsylvania, Texas, Vermont also will closely support the mission of Affected Public: Individuals or and Washington reporting to Boston, the module sponsor, the National Households. Massachusetts. The workers are engaged Institute on Aging (NIA) of the National Total Estimated Number of in activities related to the production of Institutes of Health, to improve the Respondents: 12,800. digital imaging software. The notice was health and well-being of older Total Estimated Number of published in the Federal Register on Americans. Responses: 12,800. September 19, 2011 (76 FR 58046). Total Estimated Annual Burden At the request of the State agency, the This information collection is subject Hours: 1067. Department reviewed the certification to the PRA. A Federal agency generally Total Estimated Annual Other Costs for workers of the subject firm. New cannot conduct or sponsor a collection Burden: $0. information shows that workers leased of information, and the public is from Advantage (formerly known as generally not required to respond to an Dated: October 20, 2011. TAC) and McCallion Staffing were information collection, unless it is Michel Smyth, employed on-site at the Boston, approved by the OMB under the PRA Departmental Clearance Officer. Massachusetts location of Iron and displays a currently valid OMB [FR Doc. 2011–27699 Filed 10–25–11; 8:45 am] Mountain Information Management, Control Number. In addition, BILLING CODE 4510–24–P Inc., Corporate Service Group, notwithstanding any other provisions of Information Technology (IT) Division. law, no person shall generally be subject The Department has determined that to penalty for failing to comply with a DEPARTMENT OF LABOR these workers were sufficiently under collection of information if the the control of Iron Mountain collection of information does not Employment and Training Information Management, Inc., display a valid OMB Control Number. Administration Corporate Service Group, Information See 5 CFR 1320.5(a) and 1320.6. For [TA–W–80,185] Technology (IT) Division be considered additional information, see the related leased workers. notice published in the Federal Register Iron Mountain Information The intent of the Department’s on July 13, 2011 (76 FR 41302). Management, Inc., Corporate Service certification is to include all workers of Interested parties are encouraged to Group, Information Technology (IT) the subject firm adversely affected by send comments to the OMB, Office of Division, Including On-Site Leased actual/likely increase in imports Information and Regulatory Affairs at Workers From TEK Systems, following a shift abroad. the address shown in the ADDRESSES Professional Alternative, Randstad US/ Based on these findings, the section within 30 days of publication of Sapphire Technologies, Spherion Department is amending this this notice in the Federal Register. In Staffing Services/Technisource, certification to include workers leased order to help ensure appropriate Manpower, Advantage (Formerly from Advantage (formerly known as consideration, comments should Known as TAC), and Mccallion Boston, TAC), and McCallion working on-site at reference OMB ICR Reference Number Massachusetts, and Including Off-Site the Boston, Massachusetts location of 201108–1220–001. The OMB is Workers From California, Florida, the subject firm. particularly interested in comments Louisiana, Massachusetts, Michigan, The amended notice applicable to that: Missouri, North Carolina, New Jersey, TA–W–80,185 is hereby issued as • Evaluate whether the proposed Nevada, Oregon, Pennsylvania, Texas, follows: Vermont and Washington Reporting to collection of information is necessary All workers of Iron Mountain Management, for the proper performance of the Boston, Massachusetts; Amended Certification Regarding Eligibility To Inc., Corporate Service Group, Information functions of the agency, including Technology (IT) Division, including on-site whether the information will have Apply for Worker Adjustment leased workers from TEK Systems, practical utility; Assistance and Alternative Trade Professional Alternative, Randstad US/ • Adjustment Assistance Sapphire Technologies, Spherion Staffing Evaluate the accuracy of the Services/Technisource, Manpower agency’s estimate of the burden of the In accordance with Section 223 of the Advantage (formerly known as TAC), and proposed collection of information, Trade Act of 1974 (19 U.S.C. 2273), and McCallion, Boston, Massachusetts including including the validity of the Section 246 of the Trade Act of 1974 (26 off-site workers from California, Florida, methodology and assumptions used; U.S.C. 2813), as amended, the Louisiana, Massachusetts, Michigan,

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Missouri, North Carolina, New Jersey, the subject firm adversely affected by B. the sales or production, or both, of Nevada, Oregon, Pennsylvania, Texas, increased company imports. such firm or subdivision have decreased Vermont and Washington reporting to Based on these findings, the absolutely; and Boston, Massachusetts, who became totally Department is amending this C. increased imports of articles like or or partially separated from employment on or directly competitive with articles after May 17, 2010, through September 1, certification to include workers leased 2013, are eligible to apply for adjustment from Apollo Security working on-site at produced by such firm or subdivision assistance under Section 223 of the Trade Act the Chicopee, Massachusetts location of have contributed importantly to such of 1974, and are also eligible to apply for the subject firm. workers’ separation or threat of alternative trade adjustment assistance under The amended notice applicable to separation and to the decline in sales or Section 246 of the Trade Act of 1974. TA–W–80,110 is hereby issued as production of such firm or subdivision; follows: or Signed at Washington, DC, this 13th day of II. Section (a)(2)(B) both of the October 2011. All workers of Callaway Golf Ball following must be satisfied: Elliott S. Kushner, Operations, Inc., including on-site leased A. A significant number or proportion Certifying Officer, Office of Trade Adjustment workers from Reliable Temp Services, Inc., of the workers in such workers’ firm, or Assistance. Johnson & Hill Staffing and Apollo Security, Chicopee, Massachusetts, who became totally an appropriate subdivision of the firm, [FR Doc. 2011–27703 Filed 10–25–11; 8:45 am] or partially separated from employment on or have become totally or partially BILLING CODE ;P after July 1, 2011, through June 24, 2013, are separated, or are threatened to become eligible to apply for adjustment assistance totally or partially separated; under Section 223 of the Trade Act of 1974, B. there has been a shift in production DEPARTMENT OF LABOR and are also eligible to apply for alternative by such workers’ firm or subdivision to trade adjustment assistance under Section a foreign country of articles like or Employment and Training 246 of the Trade Act of 1974. directly competitive with articles which Administration are produced by such firm or Signed at Washington, DC this 12th day of October, 2011. subdivision; and [TA–W–80,110] C. One of the following must be Del Min Amy Chen, satisfied: Callaway Golf Ball Operations, Inc., Certifying Officer, Office of Trade Adjustment 1. The country to which the workers’ Including On-Site Leased Workers Assistance. firm has shifted production of the From Reliable Temp Services, Inc., [FR Doc. 2011–27702 Filed 10–25–11; 8:45 am] articles is a party to a free trade Johnson & Hill Staffing and Apollo BILLING CODE 4510–FN–P agreement with the United States; Security, Chicopee, MA; Amended 2. the country to which the workers’ Certification Regarding Eligibility To firm has shifted production of the Apply for Worker Adjustment DEPARTMENT OF LABOR articles to a beneficiary country under Assistance and Alternative Trade the Andean Trade Preference Act, Adjustment Assistance Employment and Training Administration African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery In accordance with Section 223 of the Act; or Trade Act of 1974 (19 U.S.C. 2273), and Notice of Determinations Regarding Eligibility To Apply for Worker 3. there has been or is likely to be an Section 246 of the Trade Act of 1974 (26 increase in imports of articles that are U.S.C. 2813), as amended, the Adjustment Assistance and Alternative Trade Adjustment Assistance like or directly competitive with articles Department of Labor issued a which are or were produced by such Certification of Eligibility to Apply for In accordance with Section 223 of the firm or subdivision. Worker Adjustment Assistance and Trade Act of 1974, as amended (19 Also, in order for an affirmative Alternative Trade Adjustment U.S.C. 2273) the Department of Labor determination to be made for Assistance on June 24, 2011, applicable herein presents summaries of secondarily affected workers of a firm to workers of Callaway Golf Ball determinations regarding eligibility to and a certification issued regarding Operations, Inc., including on-site apply for trade adjustment assistance for eligibility to apply for worker leased workers from Reliable Temp workers (TA–W) number and alternative adjustment assistance, each of the group Services, Inc., and Johnson and Hill trade adjustment assistance (ATAA) by eligibility requirements of Section Staffing, Chicopee, Massachusetts. The (TA–W) number issued during the 222(b) of the Act must be met. workers are engaged in activities related period of October 11, 2011 through (1) Significant number or proportion to the production of golf balls. The October 14, 2011. of the workers in the workers’ firm or notice was published in the Federal In order for an affirmative an appropriate subdivision of the firm Register on July 8, 2011 (76 FR 40401). have become totally or partially At the request of the State agency, the determination to be made for workers of a primary firm and a certification issued separated, or are threatened to become Department reviewed the certification totally or partially separated; for workers of the subject firm. New regarding eligibility to apply for worker adjustment assistance, each of the group (2) the workers’ firm (or subdivision) information shows that workers leased is a supplier or downstream producer to from Apollo Security were employed eligibility requirements of Section 222(a) of the Act must be met. a firm (or subdivision) that employed a on-site at the Chicopee, Massachusetts group of workers who received a location of Callaway Golf Ball I. Section (a)(2)(A) all of the following certification of eligibility to apply for Operations, Inc. The Department has must be satisfied: trade adjustment assistance benefits and determined that these workers were A. A significant number or proportion such supply or production is related to sufficiently under the control of of the workers in such workers’ firm, or the article that was the basis for such Callaway Golf Ball Operations, Inc. to be an appropriate subdivision of the firm, certification; and considered leased workers. have become totally or partially (3) either— The intent of the Department’s separated, or are threatened to become (A) The workers’ firm is a supplier certification is to include all workers of totally or partially separated; and the component parts it supplied for

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the firm (or subdivision) described in 222(b) (supplier to a firm whose workers submitted by fax, courier services, or paragraph (2) accounted for at least 20 are certified eligible to apply for TAA) mail to FOIA Disclosure Officer, Office percent of the production or sales of the and Section 246(a)(3)(A)(ii) of the Trade of Trade Adjustment Assistance (ETA), workers’ firm; or Act have been met. U.S. Department of Labor, 200 (B) a loss or business by the workers’ TA–W–80,388; Phoenix Trim Works, Constitution Avenue, NW., Washington, firm with the firm (or subdivision) Inc., Williamsport, PA: August 20, DC 20210 or [email protected]. described in paragraph (2) contributed 2011 These determinations also are available importantly to the workers’ separation TA–W–80,422; Coastal Lumber on the Department’s Web site at http:// or threat of separation. Company, Buckhannon, WV: www.doleta.gov/tradeact under the In order for the Division of Trade September 7, 2010 searchable listing of determinations. Adjustment Assistance to issue a TA–W–80,422A; Coastal Lumber Dated: October 20, 2011. certification of eligibility to apply for Company, Elgon, WV: September 7, Michael W. Jaffe, Alternative Trade Adjustment 2010 Assistance (ATAA) for older workers, TA–W–80,422B; Coastal Lumber Certifying Officer, Office of Trade Adjustment Assistance. the group eligibility requirements of Company, Elkins, WV: September 7, Section 246(a)(3)(A)(ii) of the Trade Act 2010 [FR Doc. 2011–27701 Filed 10–25–11; 8:45 am] must be met. TA–W–80,422C; Coastal Lumber BILLING CODE 4510–FN–P 1. Whether a significant number of Company, Smithburg, WV: workers in the workers’ firm are 50 September 7, 2010 DEPARTMENT OF LABOR years of age or older. TA–W–80,422D; Coastal Lumber 2. Whether the workers in the Company, Frametown, WV: Employment and Training workers’ firm possess skills that are not September 7, 2010 Administration easily transferable. TA–W–80,422E; Coastal Lumber 3. The competitive conditions within Company, Hacker Valley, WV: Notice of Determinations Regarding the workers’ industry (i.e., conditions September 7, 2010 Eligibility To Apply for Worker within the industry are adverse). TA–W–80,422F; Coastal Lumber Adjustment Assistance and Alternative Company, Gassaway, WV: Affirmative Determinations for Worker Trade Adjustment Assistance September 7, 2010 Adjustment Assistance and Alternative TA–W–80,422G; Coastal Lumber In accordance with Section 223 of the Trade Adjustment Assistance Company, Dailey, WV: September 7, Trade Act of 1974, as amended (19 The following certifications have been 2010 U.S.C. 2273) the Department of Labor issued. The date following the company TA–W–80,422H; Coastal Lumber herein presents summaries of name and location of each Company, Dailey, WV: September 7, determinations regarding eligibility to determination references the impact 2010 apply for trade adjustment assistance for date for all workers of such TA–W–80,422I; Coastal Lumber workers (TA–W) number and alternative determination. Company, Charlottesville, WV: trade adjustment assistance (ATAA) by The following certifications have been September 7, 2010 (TA–W) number issued during the issued. The requirements of Section TA–W–80,422J; Coastal Lumber period of October 3, 2011 through 222(a)(2)(A) (increased imports) and Company, Hopwood, PA: October 7, 2011. Section 246(a)(3)(A)(ii) of the Trade Act September 7, 2010 In order for an affirmative have been met. determination to be made for workers of TA–W–80,142; Ditan Distribution, LLC, Determinations Terminating a primary firm and a certification issued Forest Park, GA: April 27, 2010 Investigations of Petitions for Worker regarding eligibility to apply for worker TA–W–80,142A; Ditan Distribution, LLC, Adjustment Assistance adjustment assistance, each of the group Plainfield, IN: April 27, 2010 After notice of the petitions was eligibility requirements of Section TA–W–80,307; CommScope, Inc., published in the Federal Register and 222(a) of the Act must be met. Catawba, NC: July 20, 2010 on the Department’s Web site, as I. Section (a)(2)(A), all of the TA–W–80,307A; CommScope, Inc., required by Section 221 of the Act (19 following must be satisfied: Conover, NC: July 20, 2010 U.S.C. 2271), the Department initiated A. A significant number or proportion TA–W–80,380; Pulse Electronics, San investigations of these petitions. of the workers in such workers’ firm, or Diego, CA: August 18, 2010 The following determinations an appropriate subdivision of the firm, TA–W–80,444; Spang and Company, terminating investigations were issued have become totally or partially East Butler, PA: August 13, 2011 because the petitioning groups of separated, or are threatened to become TA–W–80,444A; Spang and Company, workers are covered by active totally or partially separated; B. The sales or production, or both, of Pittsburgh, PA: August 13, 2011 certifications. Consequently, further such firm or subdivision have decreased TA–W–80,445; Masco, Waverly, OH: investigation in these cases would serve absolutely; and October 17, 2011 no purpose since the petitioning group C. Increased imports of articles like or of workers cannot be covered by more The following certifications have been directly competitive with articles than one certification at a time. issued. The requirements of Section produced by such firm or subdivision 222(a)(2)(B) (shift in production) and TA–W–80,427; Coastal Lumber have contributed importantly to such Section 246(a)(3)(A)(ii) of the Trade Act Company, Hopwood, PA workers’ separation or threat of have been met. I hereby certify that the separation and to the decline in sales or TA–W–80,331; Sloan Transportation aforementioned determinations were production of such firm or subdivision; Products, Holland, MI: July 22, 2010 issued during the period of October 11, or TA–W–80,450; Cadent, Inc., Carlstadt, 2011 through October 14, 2011. Copies II. Section (a)(2)(B), both of the NJ: September 19, 2010 of these determinations may be following must be satisfied: The following certifications have been requested under the Freedom of A. A significant number or proportion issued. The requirements of Section Information Act. Requests may be of the workers in such workers’ firm, or

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an appropriate subdivision of the firm, Section 246(a)(3)(A)(ii) of the Trade Act TA–W–80,379; Hewlett Packard have become totally or partially must be met. Company, Corvallis, OR separated, or are threatened to become 1. Whether a significant number of TA–W–80.394; Deluxe Printing Co, Inc., workers in the workers’ firm are 50 totally or partially separated; Hickory, NC B. There has been a shift in years of age or older. production by such workers’ firm or 2. Whether the workers in the TA–W–80,474; Simonton Windows, subdivision to a foreign country of workers’ firm possess skills that are not McAlester, OK articles like or directly competitive with easily transferable. The workers’ firm does not produce articles which are produced by such 3. The competitive conditions within the workers’ industry (i.e., conditions an article as required for certification firm or subdivision; and under Section 222 of the Trade Act of C. One of the following must be within the industry are adverse). 1974. satisfied: Affirmative Determinations for Worker 1. The country to which the workers’ Adjustment Assistance and Alternative TA–W–80,407; CHEP USA, Orlando, FL firm has shifted production of the Trade Adjustment Assistance TA–W–80,441; Online Buddies, Inc., articles is a party to a free trade Cambridge, MA agreement with the United States; The following certifications have been 2. The country to which the workers’ issued. The date following the company TA–W–80,462; Tradewins, LLC, firm has shifted production of the name and location of each Woodinville, WA articles is a beneficiary country under determination references the impact Determinations Terminating the Andean Trade Preference Act, date for all workers of such Investigations of Petitions for Worker African Growth and Opportunity Act, or determination. the Caribbean Basin Economic Recovery The following certifications have been Adjustment Assistance issued. The requirements of Section Act; or After notice of the petitions was 3. There has been or is likely to be an 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act published in the Federal Register and increase in imports of articles that are on the Department’s Web site, as like or directly competitive with articles have been met. required by Section 221 of the Act (19 which are or were produced by such TA–W–80,373 Hamburg Industries, Inc., U.S.C. 2271), the Department initiated firm or subdivision. Hamburg, PA: August 16, 2010 Also, in order for an affirmative TA–W–80,391; Vertis, Inc., North investigations of these petitions. determination to be made for Haven, CT: August 6, 2011 The following determinations secondarily affected workers of a firm TA–W–80,426; PCT International, terminating investigations were issued and a certification issued regarding Jackson, MI: September 8, 2010 because the petitioning groups of eligibility to apply for worker The following certifications have been workers are covered by active adjustment assistance, each of the group issued. The requirements of Section certifications. Consequently, further eligibility requirements of Section 222(a)(2)(B) (shift in production) and investigation in these cases would serve 222(b) of the Act must be met. Section 246(a)(3)(A)(ii) of the Trade Act no purpose since the petitioning group (1) Significant number or proportion have been met. of workers cannot be covered by more of the workers in the workers’ firm or TA–W–80,376; Nordson Corporation, than one certification at a time. an appropriate subdivision of the firm Norcross, GA: July 8, 2010 have become totally or partially TA–W–80,384; Leviton Southern TA–W–80,344; Flextronics International separated, or are threatened to become Devices, Morganton, NC: August 19, USA, Inc., Foothill Ranch, CA totally or partially separated; 2010 TA–W–80,364; Gray Interplant Systems, (2) The workers’ firm (or subdivision) TA–W–80,461; Wilson Sporting Goods Inc., Peoria, IL is a supplier or downstream producer to Company, Sparta, TN: September a firm (or subdivision) that employed a 23, 2010 I hereby certify that the group of workers who received a aforementioned determinations were Negative Determinations for Worker certification of eligibility to apply for issued during the period of October 3, trade adjustment assistance benefits and Adjustment Assistance and Alternative Trade Adjustment Assistance 2011 through October 7, 2011. Copies of such supply or production is related to these determinations may be requested the article that was the basis for such In the following cases, the under the Freedom of Information Act. certification; and investigation revealed that the eligibility Requests may be submitted by fax, (3) Either— criteria for worker adjustment assistance courier services, or mail to FOIA (A) The workers’ firm is a supplier have not been met for the reasons Disclosure Officer, Office of Trade and the component parts it supplied for specified. Adjustment Assistance (ETA), U.S. the firm (or subdivision) described in Because the workers of the firm are paragraph (2) accounted for at least 20 not eligible to apply for TAA, the Department of Labor, 200 Constitution percent of the production or sales of the workers cannot be certified eligible for Avenue, NW., Washington, DC 20210 or workers’ firm; or ATAA. [email protected]. These (B) A loss of business by the workers’ The investigation revealed that determinations also are available on the firm with the firm (or subdivision) criteria (a)(2)(A)(I.C.) (increased Department’s Web site at http:// described in paragraph (2) contributed imports) and (a)(2)(B)(II.B.) (shift in www.doleta.gov/tradeact under the importantly to the workers’ separation production to a foreign country) have searchable listing of determinations. or threat of separation. not been met. Dated: October 14, 2011. In order for the Division of Trade TA–W–80,199; Stimson Lumber Co., Michael W. Jaffe, Adjustment Assistance to issue a Gaston, OR certification of eligibility to apply for TA–W–80,310; Applabs, Inc., Deerfield Certifying Officer, Office of Trade Adjustment Alternative Trade Adjustment Beach, FL Assistance. Assistance (ATAA) for older workers, TA–W–80,334; RR Donnelley, Eldridge, [FR Doc. 2011–27705 Filed 10–25–11; 8:45 am] the group eligibility requirements of IA BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR The purpose of each of the Interested persons are invited to investigations is to determine whether submit written comments regarding the Employment and Training the workers are eligible to apply for subject matter of the investigations to Administration adjustment assistance under title II, the Director, Office of Trade Adjustment Assistance, at the address shown below, Investigations Regarding Certifications chapter 2, of the Act. The investigations not later than November 7, 2011. of Eligibility To Apply for Worker will further relate, as appropriate, to the Adjustment Assistance and Alternative determination of the date on which total The petitions filed in this case are Trade Adjustment Assistance or partial separations began or available for inspection at the Office of threatened to begin and the subdivision the Director, Office of Trade Adjustment Petitions have been filed with the of the firm involved. Assistance, Employment and Training Secretary of Labor under Section 221 (a) Administration, U.S. Department of of the Trade Act of 1974 (‘‘the Act’’) and The petitioners or any other persons showing a substantial interest in the Labor, Room N–5428, 200 Constitution are identified in the Appendix to this Avenue, NW., Washington, DC 20210. notice. Upon receipt of these petitions, subject matter of the investigations may the Director of the Division of Trade request a public hearing, provided such Signed at Washington, DC this 20th day of Adjustment Assistance, Employment request is filed in writing with the October 2011 and Training Administration, has Director, Office of Trade Adjustment Michael Jaffe, instituted investigations pursuant to Assistance, at the address shown below, Certifying Officer, Office of Trade Adjustment Section 221 (a) of the Act. not later than November 7, 2011. Assistance.

APPENDIX [20 TAA petitions instituted between 10/10/11 and 10/14/11]

Subject firm Date of Date of TA–W (petitioners) Location institution petition

80500 ...... IBM (State/One-Stop) ...... San Francisco, CA ...... 10/11/11 10/07/11 80501 ...... TT Electronics (Company) ...... Boone, NC ...... 10/11/11 10/10/11 80502 ...... LexisNexis (Company) ...... Miamisburg, OH ...... 10/11/11 10/06/11 80503 ...... Viam Manufacturing, Inc. (Company) ...... Santa Fe Springs, CA ...... 10/11/11 10/06/11 80504 ...... BASF Corporation (Company) ...... Belvidere, NJ ...... 10/14/11 10/11/11 80505 ...... Haldex (State/One-Stop) ...... Kansas City, MO ...... 10/14/11 10/12/11 80506 ...... JVC–USA Product Return Center (State/One-Stop) ...... McAllen, TX ...... 10/14/11 10/12/11 80507 ...... Kerry Ingredients & Flavours (Union) ...... Turtle Lake, WI ...... 10/14/11 10/12/11 80508 ...... Stateline Warehouse (Workers) ...... Ridgeway, VA ...... 10/14/11 10/07/11 80509 ...... ON Semiconductor (Company) ...... Phoenix, AZ ...... 10/14/11 10/06/11 80510 ...... Suntron Corporation (Company) ...... Sugar Land, TX ...... 10/14/11 10/12/11 80511 ...... Specialty Bar Products Co. (Workers) ...... Blairsville, PA ...... 10/14/11 10/05/11 80512 ...... Pilgrim’s Pride—Dallas Processing Plant (State/One-Stop) Dallas, TX ...... 10/14/11 09/30/11 80513 ...... Centurion Medical Products (Workers) ...... Jeanette, PA ...... 10/14/11 10/13/11 80514 ...... Intier Magna (State/One-Stop) ...... Shreveport, LA ...... 10/14/11 10/13/11 80515 ...... AI Android Industries (State/One-Stop) ...... Shreveport, LA ...... 10/14/11 10/13/11 80516 ...... Travelers (Workers) ...... Elmira, NY ...... 10/14/11 10/13/11 80517 ...... AGS Automotive (State/One-Stop) ...... Shreveport, LA ...... 10/14/11 10/13/11 80518 ...... KV Pharmaceuticals (State/One-Stop) ...... Bridgeton, MO ...... 10/14/11 10/13/11 80519 ...... Verso Paper Corp. (Union) ...... Bucksport, ME ...... 10/14/11 10/13/11

[FR Doc. 2011–27700 Filed 10–25–11; 8:45 am] and Training Administration, has Assistance, at the address shown below, BILLING CODE 4510–FN–P instituted investigations pursuant to not later than November 7, 2011. Section 221(a) of the Act. Interested persons are invited to The purpose of each of the submit written comments regarding the DEPARTMENT OF LABOR investigations is to determine whether subject matter of the investigations to the Director, Office of Trade Adjustment the workers are eligible to apply for Employment and Training Assistance, at the address shown below, adjustment assistance under title II, Administration not later than November 7, 2011. chapter 2, of the Act. The investigations The petitions filed in this case are Investigations Regarding Certifications will further relate, as appropriate, to the available for inspection at the Office of of Eligibility To Apply for Worker determination of the date on which total the Director, Office of Trade Adjustment Adjustment Assistance and Alternative or partial separations began or Assistance, Employment and Training Trade Adjustment Assistance threatened to begin and the subdivision Administration, U.S. Department of of the firm involved. Petitions have been filed with the Labor, Room N–5428, 200 Constitution Secretary of Labor under Section 221 (a) The petitioners or any other persons Avenue, NW., Washington, DC 20210. of the Trade Act of 1974 (‘‘the Act’’) and showing a substantial interest in the Signed at Washington, DC, this 12 day of are identified in the Appendix to this subject matter of the investigations may October 2011. notice. Upon receipt of these petitions, request a public hearing, provided such Michael W. Jaffe, the Director of the Division of Trade request is filed in writing with the Certifying Officer, Office of Trade Adjustment Adjustment Assistance, Employment Director, Office of Trade Adjustment Assistance.

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APPENDIX [14 TAA petitions instituted between 10/3/11 and 10/7/11]

Subject Firm Date of Date of TA–W (petitioners) Location institution petition

80486 ...... Lattice Semiconductor (Workers) ...... Bethlehem, PA ...... 10/03/11 09/22/11 80487 ...... Stimson Lumber Company (Workers) ...... Colville, WA ...... 10/03/11 09/27/11 80488 ...... Plexus Services Corp. (Company) ...... Nampa, ID ...... 10/03/11 09/30/11 80489 ...... Citi Group (State/One-Stop) ...... Elk Grove Village, IL ...... 10/03/11 09/30/11 80490 ...... Novartis Pharmaceuticals (State/One-Stop) ...... East Hanover, NJ ...... 10/04/11 10/03/11 80491 ...... Staffmark (Workers) ...... Poplar Bluff, MO ...... 10/04/11 09/30/11 80492 ...... Rock-Tenn-Milwaukee Folding Plant (Union) ...... Milwaukee, WI ...... 10/05/11 10/04/11 80493 ...... Molded Fiber Glass Companies (MFG Texas) (State/One- Gainesville, TX ...... 10/05/11 10/04/11 Stop). 80494 ...... Anthelio Healthcare Solutions Inc. (State/One-Stop) ...... Dallas, TX ...... 10/05/11 10/04/11 80495 ...... BCI—The Newark Group, Inc. (State/One-Stop) ...... Fitchburg, MA ...... 10/06/11 10/05/11 80496 ...... Ben-Mar Hosiery (Company) ...... Ft. Payne, AL ...... 10/07/11 10/05/11 80497 ...... Southwoods, LLC (Company) ...... Manning, SC ...... 10/07/11 10/06/11 80498 ...... InterMetro Industries (Company) ...... Fostoria, OH ...... 10/07/11 10/05/11 80499 ...... Standard Insurance Company (Workers) ...... Portland, OR ...... 10/07/11 09/26/11

[FR Doc. 2011–27704 Filed 10–25–11; 8:45 am] For further details with respect to this ACTION: Appointment to Performance BILLING CODE 4510–FN–P action, see the application for Review Boards for Senior Executive amendment dated March 24, 2011, and Service. the licensee’s letter dated September 7, 2011, which withdrew the application SUMMARY: The U.S. Nuclear Regulatory NUCLEAR REGULATORY Commission (NRC) has announced the COMMISSION for license amendment. Documents may be examined, and/or copied for a fee, at following appointments to the NRC Performance Review Boards. [Docket No. 50–302; NRC–2011–0248] the NRC’s Public Document Room (PDR), located at One White Flint North, The following individuals are Florida Power Corporation; Notice of Public File Area O1 F21, 11555 appointed as members of the NRC Withdrawal of Application for Rockville Pike (first floor), Rockville, Performance Review Board (PRB) Amendment to Facility Operating Maryland. Publicly available documents responsible for making License created or received at the NRC are recommendations to the appointing and accessible electronically through the awarding authorities on performance The U.S. Nuclear Regulatory Agencywide Documents Access and appraisal ratings and performance Commission (NRC or the Commission) Management System (ADAMS) in the awards for Senior Executives and Senior has granted the request of Florida Power NRC Library at http://www.nrc.gov/ Level employees: Corporation (the licensee) to withdraw reading-rm/adams.html. Persons who Darren B. Ash, Deputy Executive its March 24, 2011, application for do not have access to ADAMS or who Director for Corporate Management, proposed amendment to Facility encounter problems in accessing the Office of the Executive Director for Operating License No. DPR–72 for the documents located in ADAMS should Operations. Crystal River Unit 3 Nuclear Generating contact the NRC PDR Reference staff by R.W. Borchardt, Executive Director for Plant located in Citrus County, Florida. telephone at 1–800–397–4209 or 301– Operations. The proposed amendment would 415–4737, or by e-mail to pdr.resource@ Stephen G. Burns, General Counsel. have modified the facility technical nrc.gov. James E. Dyer, Chief Financial Officer. specifications to adopt Technical Kathryn O. Greene, Director, Office of Specification Task Force (TSTF), Dated at Rockville, Maryland, this 17th day Administration. Improved Standard Technical of October 2011. Catherine Haney, Director, Office of Specifications Change Traveler, TSTF– For the Nuclear Regulatory Commission. Nuclear Material Safety and Safeguards. 248, Revision 0, ‘‘Revise Shutdown Farideh E. Saba, Eric J. Leeds, Director, Office of Margin Definition for Stuck Rod Senior Project Manager, Plant Licensing Nuclear Reactor Regulation. Exception.’’ The proposed amendment Branch II–2, Division of Operating Reactor Victor M. McCree, Regional would have revised the definition of Licensing, Office of Nuclear Reactor Administrator, Region II. shutdown margin to include a provision Regulation. Annette L. Vietti-Cook, Secretary of allowing an exception to the highest [FR Doc. 2011–27689 Filed 10–25–11; 8:45 am] the Commission, Office of the Secretary. reactivity worth stuck control rod BILLING CODE 7590–01–P Martin J. Virgilio, Deputy Executive penalty if there are two independent Director for Reactor and Preparedness means of confirming that all control Programs, Office of the Executive rods are fully inserted in the reactor NUCLEAR REGULATORY Director for Operations. core. COMMISSION Michael F. Weber, Deputy Executive The Commission had previously Director for Materials, Waste, Research, issued a Notice of Consideration of [NRC–2011–0249] State, Tribal, and Compliance Programs, Issuance of Amendment published in Appointments to Performance Review Office of the Executive Director for the Federal Register on June 28, 2011 Boards for Senior Executive Service Operations. (76 FR 37848). However, by letter dated James T. Wiggins, Director, Office of September 7, 2011, the licensee AGENCY: U.S. Nuclear Regulatory Nuclear Security and Incident withdrew the proposed change. Commission. Response.

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The following individuals will serve Environmental Assessment the quality or quantity of as members of the NRC PRB Panel that nonradiological effluents. No changes to Identification of the Proposed Action was established to review appraisals the National Pollution Discharge and make recommendations to the The proposed action would exempt Elimination system permit are needed. appointing and awarding authorities for the licensee from certain requirements No effects on the aquatic or terrestrial NRC PRB members: of 10 CFR 50.46 and appendix K to 10 habitat in the vicinity or the plant, or to Marvin L. Itzkowitz, Associate CFR part 50. Specifically, 10 CFR 50.46, threatened, endangered, or protected General Counsel for Hearings, paragraph (a)(1)(i) provides specifies under the Endangered Species Enforcement, and Administration, requirements for reactors containing Act, or impacts to essential fish habitat Office of the General Counsel. uranium oxide fuel pellets clad in either covered by the Magnuson-Stevens Act Michael R. Johnson, Director, Office zircaloy or ZIRLO. Additionally, are expected. There are no impacts to of New Reactors. appendix K to 10 CFR part 50 specifies the air or ambient air quality. There are Mark A. Satorius, Director, Office of the use of zircaloy or ZIRLO fuel no impacts to historical and cultural Federal and State Materials and cladding when doing calculations for resources. In addition, there are also no Environmental Management Programs. energy release, cladding oxidation, and known socioeconomic or environmental All appointments are made pursuant hydrogen generation after a postulated justice impacts associated with such to Section 4314 of Chapter 43 of Title loss-of-coolant accident. Therefore, both proposed action. Therefore, there are no 5 of the United States Code. of these regulations either state that significant nonradiological DATES: Effective Date: October 26, 2011. either zircaloy or ZIRLO is used as the environmental impacts associated with FOR FURTHER INFORMATION CONTACT: fuel rod cladding material. The the proposed action. Secretary, Executive Resources Board, proposed exemption would allow the Accordingly, the NRC concludes that U.S. Nuclear Regulatory Commission, licensee use of M5 cladding fuel there are no significant environmental Washington, DC 20555, (301) 492–2076. assemblies into the core of HBRESP, impacts associated with the proposed Unit 2. The proposed action is in Dated at Bethesda, Maryland, this 18th day action. accordance with the licensee’s of October, 2011. Environmental Impacts of the application dated October 19, 2010. For the U.S. Nuclear Regulatory Alternatives to the Proposed Action Commission. The Need for the Proposed Action As an alternative to the proposed Miriam L. Cohen, The proposed exemption is needed to action, the NRC staff considered denial Secretary, Executive Resources Board. allow the licensee to allow for the use of the proposed action (i.e., the ‘‘no [FR Doc. 2011–27688 Filed 10–25–11; 8:45 am] of M5 alloy fuel rod cladding at action’’ alternative). Denial of the BILLING CODE 7590–01–P HBRSEP, Unit No. 2. The licensee has exemption request would result in no requested an exemption from the change in current environmental requirements of 10 CFR 50.46 and 10 impacts. If the proposed action was NUCLEAR REGULATORY CFR part 50, appendix K to allow for denied, the licensee would have to COMMISSION loading of M5 cladding fuel assemblies, comply with the ECCS rules in 10 CFR [Docket No. 50–261; NRC–2011–0247] in lieu of zircaloy or ZIRLO, into the 50.46 and appendix K to 10 CFR part 50 core during Refueling Outage 27 that is regarding use of M5 cladding into the Carolina Power & Light Company, H.B. currently scheduled to begin on October HBRSEP, Unit 2 core during the Robinson Steam Electric Plant, Unit 29, 2011. upcoming refueling outage. This would No. 2; Environmental Assessment and cause unnecessary burden on the Finding of No Significant Impact Environmental Impacts of the Proposed Action licensee, without a significant benefit in environmental impacts. The The U.S. Nuclear Regulatory The NRC has completed its evaluation environmental impacts of the proposed Commission (NRC) is considering of the proposed action and concludes exemption and the ‘‘no action’’ issuance of an exemption pursuant to that there are no environmental impacts alternative are similar. Title 10 of the Code of Federal associated with the proposed Regulations (10 CFR) 50.46, exemption. The details of the NRC Alternative Use of Resources ‘‘Acceptance criteria for emergency core staff’s safety evaluation will be provided The action does not involve the use of cooling systems for light-water nuclear in the exemption that, if approved by any different resources than those power reactors,’’ and 10 CFR part 50, the NRC, will be issued as part of the considered in the Final Environmental appendix k, ‘‘ECCS [Emergency Core letter to the licensee approving the Statement for the HBRSEP, dated April Cooling System] Evaluation Models,’’ to exemption to the regulation. 1975, as supplemented through the allow for the use of M5 alloy fuel rod The proposed action will not ‘‘Generic Environmental Impact cladding for Facility Operating License significantly increase the probability or Statement for License Renewal of No. DPR–23, issued to Carolina Power & consequences of accidents. No changes Nuclear Plants: H.B. Robinson Steam Light Company (the licensee), for are being made in the types of effluents Electric Plant, Unit 2—Final Report operation of the H. B. Robinson Steam that may be released offsite. There is no (NUREG—1437, Supplement 13).’’ Electric Plant, Unit 2 (HBRSEP), located significant increase in the amount of in Darlington County, South Carolina. In any effluent released offsite. There is no Agencies and Persons Consulted accordance with 10 CFR 51.21, ‘‘Criteria significant increase in occupational or In accordance with its stated policy, for and identification of licensing and public radiation exposure. Therefore, on October 17, 2011, the NRC staff regulatory actions requiring there are no significant radiological consulted with the South Carolina State environmental assessments,’’ the NRC environmental impacts associated with official, Mark Yeager of the South staff prepared an environmental the proposed action. Carolina Bureau of Land and Waste assessment documenting its finding. With regard to potential Management, regarding the The NRC staff concluded that the nonradiological impacts, the proposed environmental impact of the proposed proposed action will have no significant action does not result in changes to land action. The State official had no environmental impact. use or water use, or result in changes to comments.

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Finding of No Significant Impact 124 (License SNM–124), which FOR FURTHER INFORMATION CONTACT: For Pursuant to 10 CFR 51.32, ‘‘Finding of authorizes operations at the Nuclear information about the EA or the No Significant Impact,’’ and on the basis Fuel Services, Inc. (NFS) fuel fabrication environmental review process, please of the environmental assessment, the facility in Erwin, Tennessee. On June contact James Park, telephone: 301– NRC concludes that the proposed action 30, 2009, NFS submitted to the NRC an 415–6935; e-mail: [email protected]. will not have a significant effect on the application requesting that License For general or technical information quality of the human environment. SNM–124 be renewed for a 40-year associated with the ongoing safety Accordingly, the NRC has determined period. The EA makes a finding of no review of the NFS license renewal not to prepare an environmental impact significant impact (FONSI) regarding the application, please contact Kevin statement for the proposed action. proposed action. Ramsey, telephone: 301–492–3123; For further details with respect to the ADDRESSES: You can access publicly e-mail: [email protected]. proposed action, see the licensee’s letter available documents related to this SUPPLEMENTARY INFORMATION: On June document using the following methods: 30, 2009, NFS submitted its license dated October 19, 2010 (Agencywide • Documents Access and Management NRC’s Public Document Room renewal application and accompanying System (ADAMS), Accession No. (PDR): The public may examine and environmental report (ER) to the NRC. ML102980142). This document may be have copied, for a fee, publicly available On October 6, 2009, the NRC provided examined, and/or copied for a fee, at the documents related to the NFS facility notice in the Federal Register (74 FR NRC’s Public Document Room (PDR), and license renewal at the NRC’s PDR, 51323) of its receipt of the license located at One White Flint North, Public located at One White Flint North, 11555 renewal application and also noticed an File Area O1 F21, 11555 Rockville Pike Rockville Pike (first floor), Rockville, opportunity to request a hearing on the Maryland 20852. Members of the public (first floor), Rockville, Maryland. application. No requests for a hearing can contact the NRC’s PDR reference Publicly available records are accessible were received. Under the conditions of staff by calling 1–800–397–4209, by electronically through ADAMS in the License SNM–124, NFS operates a faxing a request to 301–415–3548, or by NRC Library on the internet at the NRC nuclear fuel fabrication facility located e-mail to [email protected]. Hard Web site, in Erwin, Tennessee. If granted as copies of the documents are available http://www.nrc.gov/reading-rm/ requested, the renewed license would from the PDR for a fee. allow NFS to continue operations and adams.html. • NRC’s Agencywide Documents activities at the site for a 40-year period Persons who do not have access to Access and Management System that would begin with issuance of the ADAMS or who encounter problems in (ADAMS): Publicly available documents renewed license. accessing the documents located in created or received at the NRC are The NRC staff’s environmental review ADAMS should contact the NRC PDR available online in the NRC Library at of the proposed 40-year license renewal Reference staff by telephone at 1–800– http://www.nrc.gov/reading-rm/ is documented in the EA, in accordance 397–4209 or 301–415–4737, or send an adams.html. From this page, the public with NRC regulations at Title 10 of the e-mail to [email protected]. can gain entry into ADAMS, which Code of Federal Regulations (10 CFR) Dated at Rockville, Maryland, this 17th day provides text and image files of the of October 2011. NRC’s public documents. From this part 51, which implement the National Environmental Policy Act of 1969, as For the Nuclear Regulatory Commission. Web site, the following documents amended (NEPA). The EA also follows Farideh E. Saba, related to the NRC’s environmental review can be obtained by entering the NRC staff guidance in NUREG–1748, Senior Project Manager, Plant Licensing ‘‘Environmental Review Guidance for Branch II–2, Division of Operating Reactor accession numbers provided: Licensing, Office of Nuclear Reactor The NFS license renewal application Licensing Actions Associated with Regulation. (ADAMS Accession Number: NMSS Programs.’’ The EA identifies and evaluates the potential environmental [FR Doc. 2011–27691 Filed 10–25–11; 8:45 am] ML091880040) and the accompanying impacts of the proposed action, and BILLING CODE 7590–01–P environmental report (ADAMS Accession Number: ML091900072); reasonable alternatives. The NRC staff The NRC request for additional has determined that renewal of License NUCLEAR REGULATORY information (ADAMS Accession SNM–124 for a 40-year period would COMMISSION Number: ML100680426); not significantly affect the quality of the The NFS response providing human environment, and the EA thus [NRC–2009–0435] additional information (ADAMS makes a FONSI. The NRC staff further finds that preparation of an Final Environmental Assessment and Accession Number: ML101590160); and environmental impact statement (EIS) Finding of No Significant Impact for The NRC Final EA (ADAMS for the proposed action is not the Proposed License Renewal for Accession Number: ML112560265). Additionally, copies of the EA will be warranted. Nuclear Fuel Services, Inc. in Erwin, available at the following public The NRC staff published for public TN libraries: comment a draft EA for the proposed AGENCY: Nuclear Regulatory Unicoi County Public Library, 201 action on October 15, 2010 (75 FR Commission. Nolichucky Avenue, Erwin, 63519). The NRC staff accepted ACTION: Notice of Availability of Final Tennessee 37650–1239. 423–743– comments on the draft EA until Environmental Assessment and Finding 6533. December 31, 2010, and hosted a of No Significant Impact. Jonesborough Branch, Washington meeting in Erwin, Tennessee on October County Library, 200 Sabin Drive, 26, 2010, to accept oral and written SUMMARY: Notice is hereby given that Jonesborough, Tennessee 37659–1306. public comments. Comments were the U.S. Nuclear Regulatory 423–753–1800. identified from the transcript of Commission (NRC) is issuing a final Greeneville/Green County Public statements made at the public meeting, environmental assessment (EA) Library, 210 North Main Street, and from letters and e-mails submitted regarding the proposed renewal of NRC Greeneville, Tennessee 37745–3816. by members of the public. Appendix B special nuclear material license SNM– 423–638–5034. of the Final EA includes summaries of

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the approximately 375 individual 10-year and the 40-year proposed recognized that continued operations comments identified, and the NRC license renewal periods. The potential over 40 years or 10 years has the staff’s responses to those comments. The waste management impacts are rated as potential for increased site NRC staff revised the draft EA in small for both the 10-year and the 40- contamination that would need to be response to some of the comments. year proposed license renewal periods. addressed in the detailed site Preparation of the EA is part of the The NRC staff did not separately decommissioning plan that NFS will be NRC’s process to decide whether to address the 10-year alternative for the required to submit for NRC review when renew the NFS license, pursuant to 10 other resource areas evaluated in the NFS decides to permanently cease its CFR parts 20 and 70, and thus authorize EA, because the staff determined that licensed operations. In further response continued operations at the NFS facility. the types of potential environmental to comments, the issue of cancer risk is In accordance with the provisions of 10 impacts associated with site operations discussed in the final EA’s section on CFR part 70, the current license during the proposed 40-year license potential public health impacts. authorizes NFS to receive, possess, renewal period would be the same as The tables below list the resource store, use, and ship special nuclear those during a 10-year license renewal areas evaluated in the EA, and provide material enriched up to 100 percent. period. the findings regarding the potential Under the proposed action, NFS would Additionally, for the 10-year environmental impacts for each of the continue production of reactor fuel for alternative, the NRC staff does not three alternatives. In accordance with the U.S. Navy, and for commercial consider the potential impacts from NFS Council of Environmental Quality domestic operations. discharges of effluents that are in regulations (40 CFR 1508.27), the In addition to the NFS proposed compliance with 10 CFR part 20 annual significance of potential impacts of the action to renew its license for 40 years, regulatory limits (and discharges that proposed action have been determined the NRC staff analyzed two alternatives: are in compliance with the permit by examining their context and (1) The no-action alternative; and (2) conditions issued by other Federal, intensity. Context is related to the renewing the NFS license for 10 years. State, or local agencies) to differ either affected region, the affected interests, Under the no-action alternative, NRC in type or in magnitude with the and the locality, while intensity refers to would not renew License SNM–124, potential impacts for the requested the severity of the impact, which is and operations at the NFS site would no 40-year period. The annual regulatory based on a number of considerations. In longer be authorized. NFS then would limits in 10 CFR part 20 and the evaluating the significance of potential be required under 10 CFR 70.38 to respective permit conditions are impacts, the NRC staff in the EA used submit a detailed site-wide protective of public health and safety the following significance levels decommissioning plan, and facility and the environment. Discharges in identified in NUREG–1748, which decommissioning would begin upon compliance with those limits and account for context and intensity: NRC approval of that plan. conditions would thus not be expected • Small—environmental effects are Regarding the 10-year license renewal to pose undue cumulative risks to not detectable or are so minor that they alternative, the potential transportation human health and the environment. will neither destabilize nor noticeably and waste management impacts of this In response to comments on the draft alter any important attribute of the alternative to the proposed action are EA, impacts from site decommissioning resource; addressed in the EA. The magnitude of are evaluated in the final EA for the • Moderate—environmental effects these expected impacts are one-fourth of proposed action and the 10-year are sufficient to alter noticeably, but not those projected over the proposed alternative, in addition to the no-action to destabilize, important attributes of 40-year license renewal period. As alternative. In doing so, the NRC staff the resource; or shown in the first table below, the local recognizes that site decommissioning • Large—environmental effects are transportation impacts are rated as will be a reasonably foreseeable future clearly noticeable and are sufficient to moderate and the overall transportation action for the NFS facility and site. In destabilize important attributes of the impacts are rated as small for both the conducting its evaluation, the staff also resource.

SUMMARY OF POTENTIAL ENVIRONMENTAL IMPACTS FROM OPERATIONS

Resource area Proposed action 10-Year renewal No-action

Land Use ...... SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL. Transportation ...... SMALL (overall) MODERATE SMALL (overall) MODERATE SMALL. (local). (local). Socioeconomics ...... SMALL ...... SMALL ...... SMALL to MODERATE. Air Quality ...... SMALL ...... SMALL ...... SMALL. Water Resources—Surface Water SMALL ...... SMALL ...... SMALL. Water Resources—Groundwater .. SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL. Geology & Soils...... SMALL (geology) SMALL to SMALL (geology) SMALL to SMALL (geology) SMALL to MODERATE (soils). MODERATE (soils). MODERATE (soils). Ecology ...... SMALL ...... SMALL ...... SMALL. Noise ...... SMALL ...... SMALL ...... SMALL. Historic & Cultural ...... SMALL ...... SMALL ...... SMALL. Scenic & Visual ...... SMALL ...... SMALL ...... SMALL. Public & Occupational Health ...... SMALL ...... SMALL ...... SMALL. Public & Occupational Health— MODERATE ...... MODERATE ...... SMALL. Accidents. Waste Management ...... SMALL ...... SMALL ...... SMALL.

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SUMMARY OF POTENTIAL ENVIRONMENTAL IMPACTS FROM DECOMMISSIONING

Resource area Proposed action 10-Year renewal No-action

Land Use ...... MODERATE ...... MODERATE ...... MODERATE. Transportation ...... SMALL (overall) MODERATE SMALL (overall) MODERATE SMALL (overall) MODERATE (local). (local). (local). Socioeconomics ...... SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL to MODERATE. Air Quality ...... SMALL ...... SMALL ...... SMALL. Water Resources—Surface Water SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL to MODERATE. Water Resources—Groundwater .. SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL to MODERATE. Geology & Soils...... SMALL (geology) SMALL to SMALL (geology) SMALL to SMALL (geology) SMALL to MODERATE (soils). MODERATE (soils). MODERATE (soils). Ecology ...... SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL to MODERATE. Noise ...... SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL to MODERATE. Historic & Cultural ...... SMALL ...... SMALL ...... SMALL. Scenic & Visual ...... MODERATE ...... MODERATE ...... MODERATE. Public & Occupational Health ...... SMALL ...... SMALL ...... SMALL. Public & Occupational Health— SMALL to MODERATE ...... SMALL to MODERATE ...... SMALL to MODERATE. Accidents. Waste Management ...... MODERATE ...... MODERATE ...... MODERATE.

Based on its review of the proposed POSTAL REGULATORY COMMISSION Commission received a petition for action relative to the requirements set review of the Postal Service’s forth in 10 CFR part 51, the NRC staff [Docket No. A2012–11; Order No. 910] determination to close the Ardenvoir has determined that renewal of License Post Office Closing post office in Ardenvoir, Washington. SNM–124, for a period of 40 years The petition for review was filed by would not significantly affect the AGENCY: Postal Regulatory Commission. Christine Mallon (Petitioner) and is quality of the human environment. In its ACTION: Notice. postmarked September 30, 2011. The license renewal request, NFS is Commission hereby institutes a proposing no changes in how it SUMMARY: This document informs the proceeding under 39 U.S.C. 404(d)(5) processes enriched uranium, and no public that an appeal of the closing of and establishes Docket No. A2012–11 to significant changes in NFS’ authorized the Ardenvoir, Washington, post office consider Petitioner’s appeal. If operations are planned during the has been filed. It identifies preliminary Petitioner would like to further explain proposed license renewal period. The steps and provides a procedural her position with supplemental impacts of ongoing and planned schedule. Publication of this document information or facts, Petitioner may construction actions—including those will allow the Postal Service, either file a Participant Statement on related to the physical protection and petitioners, and others to take PRC Form 61 or file a brief with the safeguarding of licensed materials—are appropriate action. Commission no later than November 17, not expected to significantly affect the DATES: Administrative record due (from 2011. quality of the human environment. Postal Service): October 28, 2011; Issues apparently raised. Petitioner Gaseous emissions and liquid effluents deadline for notices to intervene: contends that: (1) The Postal Service generated by the NFS facility are November 14, 2011, 4:30 p.m., eastern failed to consider the effect of the presently controlled and monitored by time. See the Procedural Schedule in closing on the community (see 39 U.S.C. permit, and would continue to be the SUPPLEMENTARY INFORMATION section 404(d)(2)(A)(i)); and (2) the Postal required to meet regulatory limits for for other dates of interest. Service failed to consider whether or non-radiological and radiological not it will continue to provide a ADDRESSES: Submit comments components. Public and occupational maximum degree of effective and electronically by accessing the ‘‘Filing radiological dose exposures that would regular postal services to the community Online’’ link in the banner at the top of be generated by continued NFS facility (see 39 U.S.C. 404(d)(2)(A)(iii)). the Commission’s Web site (http://www. operations would continue to be After the Postal Service files the prc.gov) or by directly accessing the required to meet 10 CFR part 20 administrative record and the Commission’s Filing Online system at regulatory limits. Pursuant to 10 CFR Commission reviews it, the Commission https://www.prc.gov/prc-pages/filing- 51.31 and 51.32, the NRC staff may find that there are more legal issues online/login.aspx. Commenters who concludes that a FONSI is appropriate, than those set forth above, or that the cannot submit their views electronically and that preparation of an EIS is not Postal Service’s determination disposes should contact the person identified in warranted for the proposed action. of one or more of those issues. The the FOR FURTHER INFORMATION CONTACT deadline for the Postal Service to file the Dated at Rockville, Maryland, this 20th day section as the source for case-related of October, 2011. applicable administrative record with information for advice on alternatives to the Commission is October 28, 2011. For the Nuclear Regulatory Commission. electronic filing. Christepher McKenney, See 39 CFR 3001.113. In addition, the FOR FURTHER INFORMATION CONTACT: Acting Deputy Director, Environmental due date for any responsive pleading by Protection and Performance Assessment Stephen L. Sharfman, General Counsel, the Postal Service to this Notice is Directorate, Division of Waste Management at 202–789–6820 (case-related October 28, 2011. and Environmental Protection, Office of information) or [email protected] Availability; Web site posting. The Federal and State Materials and (electronic filing assistance). Commission has posted the appeal and Environmental Management Programs. SUPPLEMENTARY INFORMATION: Notice is supporting material on its Web site at [FR Doc. 2011–27685 Filed 10–25–11; 8:45 am] hereby given that, pursuant to 39 U.S.C. http://www.prc.gov. Additional filings BILLING CODE 7590–01–P 404(d), on October 13, 2011, the in this case and participants’

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submissions also will be posted on the found on the Commission’s Web site or request the Postal Service or other Commission’s Web site, if provided in by contacting the Commission’s docket participants to submit information or electronic format or amenable to section at [email protected] or via memoranda of law on any appropriate conversion, and not subject to a valid telephone at 202–789–6846. issue. As required by the Commission protective order. Information on how to The Commission reserves the right to rules, if any motions are filed, responses use the Commission’s Web site is redact personal information which may are due 7 days after any such motion is available online or by contacting the infringe on an individual’s privacy filed. See 39 CFR 3001.21. Commission’s Webmaster via telephone rights from documents filed in this It is ordered: proceeding. at 202–789–6873 or via electronic mail 1. The Postal Service shall file the at [email protected]. Intervention. Persons, other than Petitioner and respondent, wishing to be applicable administrative record The appeal and all related documents heard in this matter are directed to file regarding this appeal no later than are also available for public inspection a notice of intervention. See 39 CFR October 28, 2011. in the Commission’s docket section. 3001.111(b). Notices of intervention in 2. Any responsive pleading by the Docket section hours are 8 a.m. to 4:30 this case are to be filed on or before Postal Service to this Notice is due no p.m., Eastern Time, Monday through November 14, 2011. A notice of later than October 28, 2011. Friday, except on Federal government intervention shall be filed using the 3. The procedural schedule listed holidays. Docket section personnel may Internet (Filing Online) at the below is hereby adopted. be contacted via electronic mail at prc- Commission’s Web site unless a waiver 4. Pursuant to 39 U.S.C. 505, [email protected] or via telephone at is obtained for hardcopy filing. See 39 202–789–6846. Cassandra L. Hicks is designated officer CFR 3001.9(a) and 3001.10(a). of the Commission (Public Filing of documents. All filings of Further procedures. By statute, the Representative) to represent the documents in this case shall be made Commission is required to issue its interests of the general public. using the Internet (Filing Online) decision within 120 days from the date 5. The Secretary shall arrange for pursuant to Commission rules 9(a) and it receives the appeal. See 39 U.S.C. publication of this notice and order in 10(a) at the Commission’s Web site, 404(d)(5). A procedural schedule has the Federal Register. http://www.prc.gov, unless a waiver is been developed to accommodate this obtained. See 39 CFR 3001.9(a) and statutory deadline. In the interest of By the Commission. 3001.10(a). Instructions for obtaining an expedition, in light of the 120-day Shoshana M. Grove, account to file documents online may be decision schedule, the Commission may Secretary.

PROCEDURAL SCHEDULE

October 13, 2011 ...... Filing of Appeal. October 28, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this ap- peal. October 28, 2011 ...... Deadline for the Postal Service to file any responsive pleading. November 14, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). November 17, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). December 7, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). December 22, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 29, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 30, 2012...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–27646 Filed 10–25–11; 8:45 am] petitioners, and others to take the FOR FURTHER INFORMATION CONTACT BILLING CODE 7710–FW–P appropriate action. section as the source for case-related information for advice on alternatives to DATES: Administrative record due (from electronic filing. POSTAL REGULATORY COMMISSION Postal Service): October 28, 2011; deadline for notices to intervene: FOR FURTHER INFORMATION CONTACT: November 14, 2011, 4:30 p.m., eastern Stephen L. Sharfman, General Counsel, [Docket No. A2012–12; Order No. 911] time. See the Procedural Schedule in at 202–789–6820 (case-related Post Office Closing the SUPPLEMENTARY INFORMATION section information) or [email protected] for other dates of interest. (electronic filing assistance). AGENCY: Postal Regulatory Commission. ADDRESSES: Submit comments SUPPLEMENTARY INFORMATION: Notice is ACTION: Notice. electronically by accessing the ‘‘Filing hereby given that, pursuant to 39 U.S.C. Online’’ link in the banner at the top of 404(d), on October 13, 2011, the SUMMARY: This document informs the the Commission’s Web site (http:// Commission received a petition for public that an appeal of the closing of www.prc.gov) or by directly accessing review of the Postal Service’s the Ruth, Mississippi, post office has the Commission’s Filing Online system determination to close the Ruth post been filed. It identifies preliminary at https://www.prc.gov/prc-pages/filing- office in Ruth, Mississippi. The petition steps and provides a procedural online/login.aspx. Commenters who for review was filed by Bonnie Ard schedule. Publication of this document cannot submit their views electronically (Petitioner) and is postmarked October will allow the Postal Service, should contact the person identified in 6, 2011. The Commission hereby

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institutes a proceeding under 39 U.S.C. available online or by contacting the is obtained for hardcopy filing. See 39 404(d)(5) and establishes Docket No. Commission’s webmaster via telephone CFR 3001.9(a) and 3001.10(a). A2012–12 to consider Petitioner’s at 202–789–6873 or via electronic mail Further procedures. By statute, the appeal. If Petitioner would like to at [email protected]. Commission is required to issue its further explain her position with The appeal and all related documents decision within 120 days from the date supplemental information or facts, are also available for public inspection it receives the appeal. See 39 U.S.C. Petitioner may either file a Participant in the Commission’s docket section. 404(d)(5). A procedural schedule has Statement on PRC Form 61 or file a brief Docket section hours are 8 a.m. to 4:30 been developed to accommodate this with the Commission no later than p.m., eastern time, Monday through statutory deadline. In the interest of November 17, 2011. Friday, except on Federal government expedition, in light of the 120-day Issues apparently raised. Petitioner holidays. Docket section personnel may decision schedule, the Commission may contends that the Postal Service failed be contacted via electronic mail at prc- request the Postal Service or other to: (1) Consider the effect of the closing [email protected] or via telephone at participants to submit information or on the community (see 39 U.S.C. 202–789–6846. memoranda of law on any appropriate 404(d)(2)(A)(i)); and (2) Petitioner Filing of documents. All filings of issue. As required by the Commission contends that there are factual errors documents in this case shall be made rules, if any motions are filed, responses contained in the Final Determination. using the Internet (Filing Online) After the Postal Service files the pursuant to Commission rules 9(a) and are due 7 days after any such motion is administrative record and the 10(a) at the Commission’s Web site, filed. See 39 CFR 3001.21. Commission reviews it, the Commission http://www.prc.gov, unless a waiver is It is ordered: may find that there are more legal issues obtained. See 39 CFR 3001.9(a) and 1. The Postal Service shall file the than those set forth above, or that the 3001.10(a). Instructions for obtaining an applicable administrative record Postal Service’s determination disposes account to file documents online may be regarding this appeal no later than of one or more of those issues. The found on the Commission’s Web site or October 28, 2011. deadline for the Postal Service to file the by contacting the Commission’s docket 2. Any responsive pleading by the applicable administrative record with section at [email protected] or via Postal Service to this Notice is due no the Commission is October 28, 2011. telephone at 202–789–6846. later than October 28, 2011. See 39 CFR 3001.113. In addition, the The Commission reserves the right to due date for any responsive pleading by redact personal information which may 3. The procedural schedule listed the Postal Service to this Notice is infringe on an individual’s privacy below is hereby adopted. October 28, 2011. rights from documents filed in this 4. Pursuant to 39 U.S.C. 505, Patricia Availability; Web site posting. The proceeding. A. Gallagher is designated officer of the Commission has posted the appeal and Intervention. Persons, other than Commission (Public Representative) to supporting material on its Web site at Petitioner and respondent, wishing to be represent the interests of the general http://www.prc.gov. Additional filings heard in this matter are directed to file public. in this case and participants’ a notice of intervention. See 39 CFR 5. The Secretary shall arrange for submissions also will be posted on the 3001.111(b). Notices of intervention in publication of this notice and order in Commission’s Web site, if provided in this case are to be filed on or before the Federal Register. electronic format or amenable to November 14, 2011. A notice of conversion, and not subject to a valid intervention shall be filed using the By the Commission. protective order. Information on how to Internet (Filing Online) at the Shoshana M. Grove, use the Commission’s Web site is Commission’s Web site unless a waiver Secretary.

PROCEDURAL SCHEDULE

October 13, 2011 ...... Filing of Appeal. October 28, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this ap- peal. October 28, 2011 ...... Deadline for the Postal Service to file any responsive pleading. November 14, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). November 17, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). December 7, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). December 22, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 29, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). February 3, 2012...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

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[FR Doc. 2011–27648 Filed 10–25–11; 8:45 am] be included on the subject line if e-mail providing investors with information to BILLING CODE 7710–FW–P is used. To help us process and review understand the nature and extent of your comments more efficiently, please measurement uncertainties? use only one method. The Commission 7. What are the challenges for auditors SECURITIES AND EXCHANGE will post all comments on the in evaluating management’s judgments COMMISSION Commission’s Internet Web site (http:// related to measurement uncertainties? www.sec.gov). Comments are also [Release No. 34–65602; File No. 4–640] available for Web site viewing and 8. Please provide feedback on whether (and how) a change in the auditor’s Inaugural Roundtable of the Financial printing in the Commission’s Public Reference Room, 100 F Street, NE., responsibility or role would enhance the Reporting Series Entitled ‘‘Uncertainty investor’s understanding of the nature in Financial Statements: How Much To Washington, DC 20549, on official business days between the hours of 10 and extent of measurement Recognize and How Best To uncertainties. Communicate It’’ a.m. and 3 p.m. All comments received will be posted without change; we do 9. Please provide any additional AGENCY: Securities and Exchange not edit personal identifying comments or suggestions pertinent to Commission. information from submissions. You how much uncertainty to recognize and ACTION: Notice of roundtable discussion; should submit only information that how best to communicate it. request for comment. you wish to make available publicly. Dated: October 20, 2011. SUPPLEMENTARY INFORMATION: This will SUMMARY: The Commission staff will By the Commission. be the inaugural roundtable of the hold a public roundtable discussion to Elizabeth M. Murphy, consider financial statement Financial Reporting Series. The Secretary. measurements (and associated Financial Reporting Series was disclosures) that incorporate judgments instituted by SEC staff to assist in the [FR Doc. 2011–27696 Filed 10–25–11; 8:45 am] about future events. The discussion will proactive identification of risks related BILLING CODE 8011–01–P be open to the public with seating on a to, and areas of potential improvements first-come, first-served basis. Members in, the reliability and usefulness of of the public may also listen by webcast financial information provided to SECURITIES AND EXCHANGE on the SEC Web site at http:// investors. In this regard, the Financial COMMISSION www.sec.gov. The roundtable discussion Reporting Series is intended to facilitate will take place in the Multipurpose balanced discussions of implementation [Release No. 34–65601; File No. SR– Room (Room L–006) at the SEC issues or emerging issues in financial NYSEArca-2011–63] Headquarters located at 100 F Street, reporting. NE., Washington, DC. Feedback is Feedback is welcomed regarding any Self-Regulatory Organizations; NYSE welcomed regarding any of the topics to of the topics to be addressed at the Arca, Inc.; Order Approving a be addressed at the roundtable. roundtable. The panel discussions will Proposed Rule Change To List and DATES: The roundtable discussion will focus on the following topics and Trade Shares of the United States take place on Tuesday, November 8, questions: Metals Index Fund, the United States 2011, commencing at 10 a.m. and 1. Please provide feedback on any Agriculture Index Fund and the United ending at 5 p.m. The Commission will topics where the extent of uncertainty in States Copper Index Fund Under NYSE accept comments regarding issues an accounting measurement is less Arca Equities Rule 8.200 addressed at the roundtable until useful to investors and why a more December 8, 2011. certain measurement would be October 20, 2011. preferable. Likewise, provide feedback FOR FURTHER INFORMATION CONTACT: J. I. Introduction Mike Starr, Deputy Chief Accountant, or on those topics where a measurement Eric West, Associate Chief Accountant, with uncertainty gives investors useful On August 19, 2011, NYSE Arca, Inc. at (202) 551–5300, U.S. Securities and information and why it is preferable to (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed Exchange Commission, 100 F Street, a more certain measurement. with the Securities and Exchange NE., Washington, DC 20549. 2. For those topics where uncertain Commission (‘‘Commission’’), pursuant measurements are useful to investors, ADDRESSES: Comments may be to Section 19(b)(1) of the Securities how should the uncertainties be 1 submitted by any of the following Exchange Act of 1934 (‘‘Act’’) and Rule methods: incorporated into the measure? Please 19b–4 thereunder,2 a proposed rule explain the reasons for the measurement change to list and trade shares of the Electronic Comments method(s) you selected. United States Metals Index Fund • Use the Commission’s Internet 3. What information do investors (‘‘USMI’’), the United States Agriculture comment form (http://www.sec.gov/ utilize to understand uncertainty? Index Fund (‘‘USAI’’) and the United rules/other.shtml); or Please describe why such information is States Copper Index Fund (‘‘USCUI’’) • Send an e-mail to rule- useful and, if it is not disclosed in the (collectively, the ‘‘Funds’’) under NYSE [email protected]. Please include File financial statements, indicate its source. Arca Equities Rule 8.200. The proposed Number 4–640 on the subject line. 4. What are the challenges for rule change was published for comment investors in understanding the nature Paper Comments in the Federal Register on September 9, and extent of measurement uncertainty? 3 • 2011. The Commission received no Send paper comments in triplicate 5. As measurement uncertainty comments on the proposal. This order to Elizabeth M. Murphy, Secretary, increases, please explain whether (and approves the proposed rule change. Securities and Exchange Commission, how, if applicable) it changes the

100 F Street, NE., Washington, DC investor’s expectation of preparers and 1 20549–1090. 15 U.S.C. 78s(b)(1). auditors. 2 17 CFR 240.19b–4. All submissions should refer to File 6. For preparers, what are the 3 See Securities Exchange Act Release No. 65249 Number 4–640. This file number should challenges in or impediments to (September 2, 2011), 76 FR 55956 (‘‘Notice’’).

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II. Description of the Proposed Rule The Metals Index is a metal sector index cash-settled options, forward contracts, Change designed to broadly represent industrial cleared swap contracts and swap The Exchange proposes to list and and precious metals while contracts other than cleared swap trade shares (‘‘Units’’) of the Funds 4 overweighting the components that are contracts. Other exchange-traded futures pursuant to NYSE Arca Equities Rule assessed to be in a low inventory state contracts that are economically identical 8.200, Commentary .02, which permits and underweighting the components or substantially similar to the the trading of Trust Issued Receipts assessed to be in a high inventory state. Benchmark Component Metals Futures either by listing or pursuant to unlisted The Metals Index consists of six base Contracts and other contracts and trading privileges.5 The Units represent metals—aluminum, copper, zinc, nickel, instruments based on the Benchmark beneficial ownership interests in the tin, and lead—and four precious metals: Component Metals Futures Contracts, as Funds, as described in the Registration gold, silver, platinum, and palladium. well as metals included in the Metals Statement. The Funds are commodity Each metal is assigned a base weight in Index, are collectively referred to as pools that are series of the Trust, a the Metals Index based on an ‘‘Other Metals-Related Investments,’’ Delaware statutory trust. The Funds are assessment of market liquidity and the and together with Benchmark managed and controlled by United metal’s overall economic importance. Component Metals Futures Contracts States Commodity Funds LLC Futures contracts for metals in the and other Eligible Metals Futures (‘‘Sponsor’’). The Sponsor is a Delaware Metals Index that are traded on New Contracts, ‘‘Metals Interests.’’ limited liability company that is York Mercantile Exchange (‘‘NYMEX’’), USMI also invests in short-term registered as a commodity pool operator London Metal Exchange (‘‘LME’’), and Treasury Securities or holds cash to (‘‘CPO’’) with the Commodity Futures Commodity Exchange, Inc. (‘‘COMEX’’) meet its current or potential margin or Trading Commission (‘‘CFTC’’) and is a are collectively referred to herein as collateral requirements with respect to member of the National Futures ‘‘Eligible Metals Futures Contracts.’’ The its investments in Metals Interests and Association (‘‘NFA’’). 10 Eligible Metals Futures Contracts that invests cash not required to be used as at any given time have been designated margin or collateral. A. USMI as a component of the Metals Index are Regulatory Requirements. As noted USMI’s trading advisor is referred to as the ‘‘Benchmark above, USMI may at times invest in SummerHaven Investment Management, Component Metals Futures Contracts.’’ other Eligible Metal Futures Contracts LLC (‘‘SummerHaven’’). The Sponsor The relative weighting of the based on the same metal as the futures expects to manage USMI’s investments Benchmark Component Metals Futures contracts subject to regulatory directly, using the trading advisory Contracts will change on a monthly constraints (as described below), and services of SummerHaven for guidance basis, based on quantitative formulas then, to a lesser extent, in Other Metals- with respect to the Metals Index and the developed by SummerHaven Indexing Related Investments in order to comply Sponsor’s selection of investments on relating to the prices of the Benchmark with regulatory requirements. An behalf of USMI. The Sponsor, Component Metals Futures Contracts.8 example of such regulatory SummerHaven Indexing and USMI’s investments also will be requirements would be if USMI is SummerHaven are not affiliated with a rebalanced on a monthly basis to track required by law or regulation, or by one broker-dealer and are subject to the changing nature of the Metals Index. of its regulators, including a futures procedures designed to prevent the use USMI will seek to achieve its exchange, to reduce its position in one and dissemination of material investment objective by investing to the or more Benchmark Component Metals nonpublic information regarding the fullest extent possible in Benchmark Futures Contracts to the applicable Metals Index or USMI’s portfolio.6 Component Metals Futures Contracts. position limit or to a specified The investment objective of USMI is Then, if constrained by regulatory accountability level for such contracts, for the daily changes in percentage requirements (as described below) or in USMI’s assets could be invested in one terms of its Units’ net asset value view of market conditions (as described or more other Eligible Metal Futures (‘‘NAV’’) to reflect the daily changes in below), USMI will invest next in other Contracts. If one or more such Eligible percentage terms of the SummerHaven Eligible Metals Futures Contracts based Metal Futures Contracts were Dynamic Metals Index Total Return (the on the same metal as the futures unavailable or economically ‘‘Metals Index’’), less USMI’s expenses.7 contracts subject to such regulatory impracticable, USMI could invest in constraints or market conditions, and Other Metals-Related Investments that 4 See the Funds’ registration statement on Form finally, to a lesser extent, in other are intended to replicate the return on S–1 for the United States Commodity Index Funds exchange-traded futures contracts that the Metals Index or particular Trust, dated November 24, 2010 (File No. 333– are economically identical or Benchmark Component Metals Futures 170844) relating to the Funds (‘‘Registration Statement’’). substantially similar to the Benchmark Contracts. Another example would be if, 5 Commentary .02 to NYSE Arca Equities Rule Component Metals Futures Contracts if because USMI’s assets were reaching 8.200 applies to Trust Issued Receipts that invest one or more other Eligible Metals higher levels, it exceeded position in ‘‘Financial Instruments.’’ The term ‘‘Financial Futures Contracts is not available. When limits, accountability levels or other Instruments,’’ as defined in Commentary .02(b)(4) to USMI has invested to the fullest extent regulatory limits and, to avoid triggering NYSE Arca Equities Rule 8.200, means any combination of investments, including cash; possible in exchange-traded futures such limits or levels, it invested in one securities; options on securities and indices; futures contracts, USMI may then invest in or more other Eligible Metal Futures contracts; options on futures contracts; forward other contracts and instruments based Contracts to the extent practicable and contracts; equity caps, collars and floors; and swap on the Benchmark Component Metals then in Other Metals-Related agreements. Futures Contracts or the metals Investments. 6 The Sponsor represents that, in the event the Sponsor, SummerHaven Indexing, or included in the Metals Index, such as When investing in Other Metals- SummerHaven becomes affiliated with a broker- Related Investments, USMI will first dealer, it will implement a fire wall with respect to (‘‘SummerHaven Indexing’’) and calculated and invest in other exchange traded futures such broker-dealer regarding access to information published by the Exchange. contracts that are economically identical concerning the composition and/or changes to a 8 More information about the Metals Index is or substantially similar to the portfolio. available in the Notice and also may be obtained 7 The Metals Index is owned and maintained by from SummerHaven Indexing’s Web site at http// Benchmark Component Metals Futures SummerHaven Index Management, LLC www.summerhavenindex.com. Contracts and then in cash-settled

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options, forward contracts, cleared swap Index’’),10 less USAI’s expenses. The Contracts or the agricultural contracts and swap contracts other than Agriculture Index consists of fourteen commodities included in the cleared swap contracts. agricultural markets: soybeans, corn, Agriculture Index, such as cash-settled Market Conditions. As also noted soft red winter wheat, hard red winter options, forward contracts, cleared swap above, there may be market conditions wheat, soybean oil, soybean meal, contracts and swap contracts other than that could cause USMI to invest in other canola, sugar, cocoa, coffee, cotton, live cleared swap contracts. Other exchange- cattle, feeder cattle and lean hogs. Each traded futures contracts that are Eligible Metal Futures Contracts that are agricultural commodity is assigned a economically identical or substantially based on the same metal as the futures base weight in the Agriculture Index similar to the Benchmark Component contracts subject to such market based on an assessment of market Agriculture Futures Contracts and other conditions (as described below). One liquidity and the commodity’s overall contracts and instruments based on the such type of market condition would be economic importance.11 Benchmark Component Agriculture where demand for Benchmark Futures contracts for agricultural Futures Contracts, as well as metals Component Metals Futures Contracts commodities in the Agriculture Index included in the Agriculture Index, are exceeded supply and as a result USMI that are currently traded on the ICE collectively referred to as ‘‘Other was able to obtain more favorable terms Futures (‘‘ICE Futures’’), Chicago Board Agriculture-Related Interests,’’ and under other Eligible Metal Futures of Trade (‘‘CBOT’’), Chicago Mercantile together with Benchmark Component Contracts. An example of more Exchange (‘‘CME’’), Kansas City Board Agriculture Futures Contracts and other favorable terms would be where the of Trade (‘‘KCBT’’) and ICE Futures Eligible Agriculture Futures Contracts, aggregate costs to USMI from investing Canada are collectively referred to ‘‘Agriculture Interests.’’ in other Eligible Metal Futures Contracts herein as ‘‘Eligible Agriculture Futures USAI also invests in short-term (including actual or expected direct Contracts.’’ The 14 Eligible Agriculture Treasury Securities or holds cash to costs such as the costs to buy, hold, or Futures Contracts that at any given time meet its current or potential margin or sell such investments, as well as have been designated as a component of collateral requirements with respect to indirect costs such as opportunity costs) the Agriculture Index are referred to as its investments in Agriculture Interests were less than the costs of investing in the ‘‘Benchmark Component Agriculture and invests cash not required to be used Benchmark Component Metal Futures Futures Contracts.’’ The relative as margin or collateral. Contracts. Only after USMI becomes weighting of the Benchmark Component Regulatory Requirements. As noted subject to position limits in any Eligible Agriculture Futures Contracts will above, USAI may at times invest in Metal Futures Contracts will USMI change on a monthly basis, based on Eligible Agriculture Futures Contracts invest in Other Metals-Related quantitative formulas developed by based on the same agricultural Investments to replicate exposure to the SummerHaven Indexing relating to the commodity as the futures contracts Eligible Metal Futures Contract that is prices of the Benchmark Component subject to regulatory constraints (as position-limited. Generally, USMI will Agriculture Futures Contracts. USAI’s described below), and then to a lesser only invest in this manner in other investments also will be rebalanced on extent in Other Agriculture-Related Investments in order to comply with Eligible Metal Futures Contracts or a monthly basis to track the changing regulatory requirements. An example of Other Metals-Related Investments if it nature of the Agriculture Index. USAI will seek to achieve its such regulatory requirements would be results in materially more favorable investment objective by investing to the if USAI is required by law or regulation, terms, and if such investments result in fullest extent possible in Benchmark or by one of its regulators, including a a specific benefit for USMI or its Component Agriculture Futures futures exchange, to reduce its position shareholders, such as being able to more Contracts. Then, if constrained by in one or more Benchmark Component closely track its benchmark. regulatory requirements (described Agriculture Futures Contracts to the B. USAI below) or in view of market conditions applicable position limit or to a (described below), USAI will invest next specified accountability level for such USAI’s trading advisor is in other Eligible Agriculture Futures contracts, USAI’s assets could be SummerHaven. The Sponsor expects to Contracts based on the same agricultural invested in one or more other Eligible manage USAI’s investments directly, commodity as the futures contracts Agriculture Futures Contracts. If one or using the trading advisory services of subject to such regulatory constraints or more such Eligible Agriculture Futures SummerHaven for guidance with market conditions, and finally, to a Contracts was unavailable or respect to the Agriculture Index and the lesser extent, in other exchange traded economically impracticable, USAI could Sponsor’s selection of investments on futures contracts that are economically invest in Other Agriculture-Related behalf of USAI. The Sponsor, identical or substantially similar to the Investments that are intended to SummerHaven Indexing and Benchmark Component Agriculture replicate the return on the Agriculture SummerHaven are not affiliated with a Futures Contracts, if one or more Index or particular Benchmark broker-dealer and are subject to Eligible Agriculture Futures Contracts is Component Agriculture Futures procedures designed to prevent the use not available. When USAI has invested Contracts. Another example would be if and dissemination of material to the fullest extent possible in because USAI’s assets were reaching nonpublic information regarding the exchange-traded futures contracts, USAI higher levels, it exceeded position Agriculture Index or USAI’s portfolio.9 may then invest in other contracts and limits, accountability levels or other instruments based on the Benchmark regulatory limits and, to avoid triggering The investment objective of USAI is Component Agriculture Futures such limits or levels, it invested in one for the daily changes in percentage or more other Eligible Agriculture terms of its Units’ NAV to reflect the 10 The Agriculture Index is owned and Futures Contracts to the extent daily changes in percentage terms of the maintained by SummerHaven Indexing and practicable and then in Other SummerHaven Dynamic Agriculture calculated and published by the Exchange. Agriculture-Related Investments. Index Total Return (the ‘‘Agriculture 11 More information about the Agriculture Index is available in the Notice and also may be obtained When investing in Other Agriculture- from SummerHaven Indexing’s Web site at http:// Related Investments, USAI will first 9 See supra note 6. www.summerhavenindex.com. invest in other exchange traded futures

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contracts that are economically identical The investment objective of USCUI is Contracts, are collectively referred to as or substantially similar to the for the daily changes in percentage ‘‘Other Copper-Related Investments,’’ Benchmark Component Agriculture terms of its Units’ NAV to reflect the and together with Benchmark Futures Contracts and then in cash daily changes in percentage terms of the Component Copper Futures Contracts settled options, forward contracts, SummerHaven Copper Index Total and other Eligible Copper Futures cleared swap contracts and swap Return (the ‘‘Copper Index’’),13 less Contracts, ‘‘Copper Interests.’’ contracts other than cleared swap USCUI’s expenses. The Copper Index is After fulfilling the margin and contracts. designed to reflect the performance of collateral requirements with respect to Market Conditions. As also noted the investment returns from a portfolio USCUI’s Copper Interests, the Sponsor above, there may be market conditions of futures contracts for copper that are will invest the remainder of USCUI’s that could cause USAI to invest in other traded on the COMEX (such futures proceeds from the sale of baskets in Eligible Agriculture Futures Contracts contracts, collectively, ‘‘Eligible Copper Treasury Securities or cash equivalents, that are based on the same agricultural Futures Contracts’’). The Copper Index and/or hold such assets in cash commodity as the futures contracts attempts to maximize backwardation (generally in interest-bearing accounts). subject to such market conditions (as and minimize contango while utilizing Regulatory Requirements. As noted described below). One such type of contracts in liquid portions of the above, USCUI may at times invest in 14 market condition would be where futures curve. The Copper Index is other Eligible Copper Futures Contracts demand for Benchmark Component comprised of either two or three Eligible based on the same metal as the futures Agriculture Futures Contracts exceeded Copper Futures Contracts that are contracts subject to regulatory supply and as a result USAI was able to selected on a monthly basis based on constraints (as described below), and obtain more favorable terms under other quantitative formulas relating to the finally to a lesser extent, in other Eligible Agriculture Futures Contracts. prices of the Eligible Copper Futures exchange traded futures contracts that An example of more favorable terms Contracts developed by SummerHaven are economically identical or would be where the aggregate costs to Indexing. USCUI’s positions in Copper substantially similar to the Benchmark USAI from investing in other Eligible Interests will be rebalanced on a Component Copper Futures Contracts if Agriculture Futures Contracts or Other monthly basis in order to track the one or more other Eligible Copper Agriculture-Related Investments changing nature of the Copper Index. Futures Contracts is not available in USCUI will seek to achieve its (including actual or expected direct order to comply with regulatory investment objective by investing to the costs such as the costs to buy, hold, or requirements. An example of such fullest extent possible in the Benchmark sell such investments, as well as regulatory requirements would be if Component Copper Futures Contracts, indirect costs such as opportunity costs) USCUI is required by law or regulation, which are the Eligible Copper Futures were less than the costs of investing in or by one of its regulators, including a Contracts that at any given time make Benchmark Component Agriculture futures exchange, to reduce its position up the Copper Index. Then if Futures Contracts. Only after USAI in one or more Benchmark Component constrained by regulatory requirements becomes subject to position limits in (described below) or in view of market Copper Futures Contracts to the any Eligible Agriculture Futures conditions (described below), USCUI applicable position limit or to a Contract will USAI invest in Other will invest next in other Eligible Copper specified accountability level for such Agriculture-Related Investments to Futures Contracts, and finally to a lesser contracts, USCUI’s assets could be replicate exposure to the Eligible extent, in other exchange-traded futures invested in one or more other Eligible Agriculture Futures Contract that is contracts that are economically identical Copper Futures Contracts. If one or position-limited. Generally, USAI will or substantially similar to the more such Eligible Copper Futures only invest in this manner in other Benchmark Component Copper Futures Contracts were unavailable or Eligible Agriculture Futures Contracts or Contracts if one or more other Eligible economically impracticable, USCUI Other Agriculture-Related Investments Copper Futures Contracts is not could invest in Other Copper-Related if it results in materially more favorable available. When USCUI has invested to Investments that are intended to terms, and if such investments result in the fullest extent possible in exchange- replicate the return on the Copper Index a specific benefit for USAI or its traded futures contracts, USCUI may or particular Benchmark Component shareholders, such as being able to more then invest in other contracts and Copper Futures Contracts. Another closely track its benchmark. instruments based on the Benchmark example would be if, because USCUI’s assets were reaching higher levels, it C. USCUI Component Copper Futures Contracts, other Eligible Copper Futures Contracts exceeded position limits, accountability USCUI’s trading advisor is or copper, such as cash-settled options, levels or other regulatory limits and, to SummerHaven. The Sponsor expects to forward contracts, cleared swap avoid triggering such limits or levels, it manage USCUI’s investments directly, contracts and swap contracts other than invested in one or more other Eligible using the trading advisory services of cleared swap contracts. Other exchange- Copper Futures Contracts to the extent SummerHaven for guidance with traded futures contracts that are practicable and then in Other Copper- respect to the Copper Index and the economically identical or substantially Related Investments. Sponsor’s selection of investments on similar to the Benchmark Component When investing in Other Copper- behalf of USCUI. The Sponsor, Copper Futures Contracts and other Related Investments, USCUI will first SummerHaven Indexing and contracts and instruments based on the invest in other exchange traded futures SummerHaven are not affiliated with a Benchmark Component Copper Futures contracts that are economically identical broker-dealer and are subject to or substantially similar to the procedures designed to prevent the use 13 The Copper Index is owned and maintained by Benchmark Component Copper Futures and dissemination of material SummerHaven Indexing and calculated and Contracts, other Eligible Copper Futures nonpublic information regarding the published by the Exchange. Contracts, and then in cash-settled Copper Index or USCUI’s portfolio.12 14 More information about the Copper Index is available in the Notice and also may be obtained options, forward contracts, cleared swap from SummerHaven Indexing’s Web site at http:// contracts and swap contracts other than 12 See supra note 6. www.summerhavenindex.com. cleared swap contracts.

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Market Conditions. As also noted with the requirements of Section 6(b)(5) Units will be calculated by the above, there may be market conditions of the Act,17 which requires, among Administrator once a day and will be that could cause USCUI to invest in other things, that the Exchange’s rules disseminated daily to all market other Eligible Copper Futures Contracts be designed to prevent fraudulent and participants after 4 p.m. E.T. The Funds that are based on the same metal as the manipulative acts and practices, to will provide Web site disclosure of futures contracts subject to such market promote just and equitable principles of portfolio holdings daily and will conditions (as described below). One trade, to foster cooperation and include, as applicable, the names and such type of market condition would be coordination with persons engaged in value (in U.S. dollars) of financial where demand for Benchmark facilitating transactions in securities, to instruments and characteristics of such Component Copper Futures Contracts remove impediments to and perfect the instruments and cash equivalents, and exceeded supply and as a result USCUI mechanism of a free and open market amount of cash held in the portfolios of was able to obtain more favorable terms and a national market system, and, in the Funds. The closing prices and under other Eligible Copper Futures general, to protect investors and the settlement prices of the futures contracts Contracts. An example of more public interest. The Commission notes also are readily available from the Web favorable terms would be where the that the Funds and the Units must sites of the relevant futures exchanges, aggregate costs to USCUI from investing comply with the requirements of NYSE automated quotation systems, published in other Eligible Copper Futures Arca Equities Rule 8.200 and or other public sources, or on-line Contracts (including actual or expected Commentary .02 thereto to be listed and information services such as Bloomberg direct costs such as the costs to buy, traded on the Exchange. or Reuters. Complete real-time data for hold, or sell such investments, as well The Commission finds that the the futures contracts is available by as indirect costs such as opportunity proposal to list and trade the Units on subscription from Reuters and costs) were less than the costs of the Exchange is consistent with Section Bloomberg. The relevant futures investing in Benchmark Component 11A(a)(1)(C)(iii) of the Act,18 which sets exchanges also provide delayed futures Copper Futures Contracts. Only after forth Congress’s finding that it is in the information on current and past trading USCUI becomes subject to position public interest and appropriate for the sessions and market news free of charge limits in any Eligible Copper Futures protection of investors and the on their respective Web sites. The Contract will USCUI invest in Other maintenance of fair and orderly markets specific contract specifications for the Copper-Related Investments to replicate to assure the availability to brokers, futures contracts are also available on exposure to the Eligible Copper Futures dealers, and investors of information such Web sites, as well as other Contract that is position-limited. with respect to quotations for, and financial informational sources. Generally, USCUI will only invest in transactions in, securities. Quotation Information regarding exchange-traded this manner in other Eligible Copper and last-sale information for the Units cash-settled options and cleared swap Futures Contracts or Other Copper- will be available via the Consolidated contracts will be available from the Related Investments if it results in Tape Association high-speed line, and applicable exchanges and major market materially more favorable terms, and if the underlying index levels will be data vendors. such investments result in a specific disseminated by the Exchange and will The Commission further believes that benefit for USCUI or its shareholders, be updated at least every 15 seconds the proposal to list and trade the Units such as being able to more closely track during NYSE Arca Core Trading Hours, is reasonably designed to promote fair its benchmark. from 9:30 a.m. E.T. to 4 p.m. E.T., disclosure of information that may be Additional details regarding the Trust, except for the period between the close necessary to price the Units Units, trading policies of the Funds, of trading of all applicable futures appropriately and to prevent trading creations and redemptions of the Units, contracts on futures exchanges and the when a reasonable degree of investment risks, Benchmark close of the NYSE Arca Core Trading transparency cannot be assured. If the performance, NAV calculation, the Session, at which point the underlying Exchange becomes aware that the NAV dissemination and availability of index values will be static.19 In with respect to the Units is not information about the underlying assets, addition, the Indicative Fund Value disseminated to all market participants trading halts, applicable trading rules, (‘‘IFV’’) for each Fund will be at the same time, it will halt trading in surveillance, and the Information disseminated on a per-Unit basis by the the Units until such time as the NAV is Bulletin, among other things, can be Exchange at least every 15 seconds available to all market participants. found in the Notice and/or the during the NYSE Arca Core Trading Further, the Exchange represents that it 15 Registration Statement, as applicable. Session.20 The NAV for the Funds’ may halt trading during the day in which an interruption to the III. Discussion and Commission’s 17 dissemination of the IFV or the value of Findings 15 U.S.C. 78f(b)(5). 18 15 U.S.C. 78k–1(a)(1)(C)(iii). the underlying futures contracts occurs. After careful review, the Commission 19 In addition, the closing prices and settlement If the interruption to the dissemination finds that the proposed rule change to prices of the futures contracts held by the Funds are of the IFV or the value of the underlying list and trade the Units of the Funds is readily available from the Web sites of the relevant futures contracts persists past the consistent with the requirements of futures exchanges, automated quotation systems, published or other public sources, or on-line trading day in which it occurred, the Section 6 of the Act and the rules and information services such as Bloomberg or Reuters. Exchange will halt trading no later than regulations thereunder applicable to a The relevant futures exchanges also provide national securities exchange.16 In delayed futures information on current and past NYSE Arca, there will be a gap in time at the particular, the Commission finds that trading sessions and market news free of charge on beginning and/or the end of each day during which the proposed rule change is consistent their respective Web sites. Units will be traded on NYSE Arca, but real-time 20 The normal trading hours of the relevant futures exchange trading prices for Applicable futures exchanges vary, with some ending their Benchmark Component Futures Contracts traded on 15 See Notice and Registration Statement, supra trading hours before the close of the Core Trading such futures exchanges will not be available. As a notes 3 and 4, respectively. Session on NYSE Arca (for example, the normal result, during those gaps there will be no update to 16 In approving this proposed rule change, the trading hours of the NYMEX are 10 a.m. E.T. to 2:30 the IFV. A static IFV will be disseminated between Commission notes that it has considered the p.m. E.T.). When a Fund holds applicable the close of trading of all applicable Futures proposed rule’s impact on efficiency, competition, Benchmark Component Futures Contracts from Contracts on futures exchanges and the close of the and capital formation. See 15 U.S.C. 78c(f). futures exchanges with different trading hours than NYSE Arca Core Trading Session.

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the beginning of the trading day monitor Exchange trading of the Units regulations thereunder applicable to a following the interruption. In addition, in all trading sessions and to deter and national securities exchange. the Web site disclosure of the portfolio detect violations of Exchange rules and IV. Conclusion composition of each Fund will occur at applicable federal securities laws. the same time as the disclosure by the (4) With respect to the Funds’ futures It is therefore ordered, pursuant to 28 Sponsor of the portfolio composition to contracts traded on exchanges, not more Section 19(b)(2) of the Act, that the authorized participants so that all than 10% of the weight of such futures proposed rule change (SR–NYSEArca– market participants are provided contracts in the aggregate shall consist 2011–63) be, and it hereby is, approved. portfolio composition information at the of components whose principal trading For the Commission, by the Division of same time. Therefore, the same portfolio market is not a member of the Trading and Markets, pursuant to delegated information will be provided on the Intermarket Surveillance Group or is a authority.29 public Web site as well as in electronic market with which the Exchange does Kevin M. O’Neill, files provided to authorized purchasers. not have a comprehensive surveillance Deputy Secretary. Accordingly, each investor will have sharing agreement. [FR Doc. 2011–27698 Filed 10–25–11; 8:45 am] access to the current portfolio (5) Prior to the commencement of BILLING CODE 8011–01–P composition of the Funds through each trading, the Exchange will inform its Fund’s Web site. The Exchange may halt ETP Holders in an Information Bulletin trading in the Units if trading is not of the special characteristics and risks SECURITIES AND EXCHANGE occurring in the underlying futures associated with trading the Units. COMMISSION contracts or if other unusual conditions Specifically, the Information Bulletin [Release No. 34–65599; File No. SR–FINRA– or circumstances detrimental to the will discuss the following: (a) The risks 2011–043] maintenance of a fair and orderly involved in trading the Units during the market are present.21 In addition, the Opening and Late Trading Sessions Self-Regulatory Organizations; Exchange represents that the Sponsor, when an updated IFV will not be Financial Industry Regulatory SummerHaven Indexing and calculated or publicly disseminated; (b) Authority, Inc.; Order Approving SummerHaven are not affiliated with a the procedures for purchases and Proposed Rule Change To Amend broker-dealer and are subject to redemptions of Units in creation baskets FINRA Rule 0160 (Definitions in FINRA procedures designed to prevent the use and redemption baskets (and that Units By-Laws) and dissemination of material are not individually redeemable); (c) October 20, 2011. nonpublic information regarding the NYSE Arca Equities Rule 9.2(a), which underlying index levels or the Funds’ imposes a duty of due diligence on its I. Introduction portfolios. Lastly, the trading of the ETP Holders to learn the essential facts On August 31, 2011, Financial Units will be subject to NYSE Arca relating to every customer prior to Industry Regulatory Authority, Inc. Equities Rule 8.200, Commentary .02(e), trading the Units; (d) how information (‘‘FINRA’’) (f/k/a National Association which sets forth certain restrictions on regarding the IFV is disseminated; (e) of Securities Dealers (‘‘NASD’’)) filed ETP Holders 22 acting as registered the requirement that ETP Holders 23 with the Securities and Exchange Market Makers in Trust Issued deliver a prospectus to investors Commission (‘‘Commission’’), pursuant Receipts to facilitate surveillance. purchasing newly issued Units prior to to Section 19(b)(1) of the Securities The Exchange has represented that or concurrently with the confirmation of Exchange Act of 1934 (‘‘Act’’) 1 and Rule the Units are deemed to be equity a transaction; and (f) trading 19b–4 thereunder,2 a proposed rule securities, thus rendering trading in the information. change to amend FINRA Rule 1060 Units subject to the Exchange’s existing (6) A minimum of 100,000 Units for (Definitions in FINRA By-Laws). The rules governing the trading of equity each Fund will be outstanding as of the proposed rule change was published for securities. In support of this proposal, start of trading on the Exchange. comment in the Federal Register on the Exchange has made representations, (7) With respect to application of Rule September 16, 2011.3 The Commission including: 24 (1) The Funds will be subject to the 10A–3 under the Act, the Trust relies received no comments on the proposal. on the exception contained in Rule This order approves the proposed rule criteria in NYSE Arca Equities Rule 25 8.200 and Commentary .02 thereto for 10A–3(c)(7). change. initial and continued listing of the This approval order is based on the II. Description of the Proposal Exchange’s representations.26 Units. FINRA is proposing to amend FINRA (2) The Exchange has appropriate For the foregoing reasons, the Rule 0160 (Definitions in FINRA By- rules to facilitate transactions in the Commission finds that the proposed Laws). As part of the process of Units during all trading sessions. rule change is consistent with Section (3) The Exchange’s surveillance 6(b)(5) of the Act 27 and the rules and developing the new consolidated procedures are adequate to properly rulebook (‘‘Consolidated FINRA Rulebook’’),4 the proposed rule change 24 17 CFR 240.10A–3. 21 With respect to trading halts, the Exchange may 25 17 CFR 240.10A–3(c)(7). 28 15 U.S.C. 78s(b)(2). consider other relevant factors in exercising its 26 The Commission notes that it does not regulate 29 discretion to halt or suspend trading in the Units the market for futures in which the Fund plans to 17 CFR 200.30–3(a)(12). of the Funds. Trading in the Units of the Funds will take positions, which is the responsibility of the 1 15 U.S.C. 78s(b)(1). be subject to halts caused by extraordinary market Commodity Futures Trading Commission (‘‘CFTC’’). 2 17 CFR 240.19b-4. volatility pursuant to the Exchange’s circuit breaker The CFTC has the authority to set limits on the 3 See Securities Exchange Act Release No. 65313 rules in NYSE Arca Equities Rule 7.12. Trading also positions that any person may take in futures. These (September 12, 2011), 76 FR 57784 (‘‘Notice’’). may be halted because of market conditions or for limits may be directly set by the CFTC or by the 4 The current FINRA rulebook consists of (1) reasons that, in the view of the Exchange, make markets on which the futures are traded. The FINRA Rules; (2) NASD Rules; and (3) rules trading in the Units inadvisable. Commission has no role in establishing position incorporated from NYSE (‘‘Incorporated NYSE 22 See NYSE Arca Equities Rule 1.1(n) (defining limits on futures, even though such limits could Rules’’) (together, the NASD Rules and Incorporated ETP Holder). impact an exchange-traded product that is under NYSE Rules are referred to as the ‘‘Transitional 23 See NYSE Arca Equities Rule 1.1(u) (defining the jurisdiction of the Commission. Rulebook’’). While the NASD Rules generally apply Market Maker). 27 15 U.S.C. 78f(b)(5). to all FINRA members, the Incorporated NYSE

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will amend FINRA Rule 0160. The prevent fraudulent and manipulative contact the Commission at (202) 203– proposed rule change will transfer acts and practices, to promote just and 7463 or [email protected]. To certain defined terms from NASD Rule equitable principles of trade, and, in attend, contact the RAND Corporation 0120 (Definitions) to FINRA Rule 0160, general, to protect investors and the by phone at (412) 683–2300 ext 4906 or subject to certain amendments, as well public interest. The Commission e-mail to [email protected] and as add new defined terms to reflect the believes that the proposed rule change provide your full name, citizenship conventions of the Consolidated FINRA will provide clarity with respect to the (U.S. citizenship is not required to Rulebook.5 The proposed rule change defined terms for the Consolidated attend), and institutional/organizational will also eliminate as unnecessary or FINRA Rulebook by transferring certain affiliation. duplicative certain definitions defined terms from NASD Rule 0120 to The United States Advisory contained in NASD Rule 0120. In FINRA Rule 0160 (subject to certain Commission on Public Diplomacy addition, the proposed rule change will amendments), adding new defined appraises U.S. Government activities eliminate NASD Rule 0120 from the terms to FINRA Rule 0160 to reflect the intended to understand, inform, and current FINRA rulebook.6 conventions of the Consolidated FINRA influence foreign publics. The Advisory The proposed rule change will also Rulebook and eliminating as Commission may conduct studies, transfer certain terms with either no or unnecessary or duplicative certain inquiries, and meetings, as it deems minor substantive changes to FINRA definitions contained in NASD Rule necessary. It may assemble and Rule 0160, as well as make minor and 0120. disseminate information and issue conforming changes to NASD Rule reports and other publications, subject IV. Conclusion 0120(f)(2) and (f)(3) and FINRA Rule to the approval of the Chairperson, in 0160(b)(3)(B) and (3)(C). The proposed It is therefore ordered, pursuant to consultation with the Executive rule change will also add defined terms Section 19(b)(2) of the Act,10 that the Director. The Advisory Commission to FINRA Rule 0160 because such terms proposed rule change (SR–FINRA– may undertake foreign travel in pursuit are used throughout the Consolidated 2011–043) be, and it hereby is, of its studies and coordinate, sponsor, or FINRA Rulebook.7 Although the approved. oversee projects, studies, events, or proposed rule change will not other activities that it deems desirable For the Commission, by the Division of and necessary in fulfilling its functions. incorporate certain defined terms in Trading and Markets, pursuant to delegated NASD Rule 0120, FINRA represents that authority.11 The Commission consists of seven members appointed by the President, by this will not eliminate any substantive Kevin M. O’Neill, FINRA requirements.8 and with the advice and consent of the Deputy Secretary. Senate. The members of the FINRA will announce the [FR Doc. 2011–27697 Filed 10–25–11; 8:45 am] implementation date of the proposed Commission shall represent the public BILLING CODE 8011–01–P rule change in a Regulatory Notice to be interest and shall be selected from a published no later than 90 days cross section of educational, following this Commission approval. communications, cultural, scientific, The effective date will be no later than DEPARTMENT OF STATE technical, public service, labor, 150 days following this Commission [Public Notice 7650] business, and professional backgrounds. approval. Not more than four members shall be U.S. Advisory Commission on Public from any one political party. The III. Discussion and Commission Diplomacy; Notice of Meeting President designates a member to chair Findings the Commission. After careful review, the Commission The U.S. Advisory Commission on The current members of the finds that the proposed rule change is Public Diplomacy will hold a public Commission are: Mr. William Hybl of consistent with Section 15A(b)(6) of the meeting on November 29, 2011, in Santa Colorado, Chairman; Ambassador Act,9 which requires, among other Monica, CA, in partnership with the Lyndon Olson of Texas, Vice Chairman; things, that FINRA rules be designed to RAND Corporation. The meeting will Ambassador Penne Korth-Peacock of take place at the RAND offices at 1176 Texas; Ms. Lezlee Westine of Virginia; Rules apply only to those members of FINRA that Main Street in Santa Monica, CA, in the and, Mr. Sim Farar of California. Two are also members of the NYSE. The FINRA Rules Forum Auditorium. The meeting will seats on the Commission are currently apply to all FINRA members, unless such rules begin at 9 a.m. and end at 3 p.m. (doors vacant. have a more limited application by their terms. For open for registration and continental The following individual has been more information about the rulebook consolidation nominated to the Commission but process, see Information Notice, March 12, 2008 breakfast at 8:30 a.m.). (Rulebook Consolidation Process). For convenience, The topic is narratives: what they are, awaits Senate confirmation as of this the Incorporated NYSE Rules are referred to as the how they are shaped and countered. writing: Anne Wedner of Illinois. NYSE Rules. The conference will delve into the The Advisory Commission was 5 FINRA Rule 0160 would be reorganized so that impact on narratives of actions and originally established under Section 604 the defined terms are arranged alphabetically, as amended. words (primarily U.S. but also others if of the United States Information and 6 Notwithstanding the proposed transfer of certain lessons for us are clearly articulated), Exchange Act of 1948, as amended (22 defined terms from NASD Rule 0120 to FINRA Rule and the impact of environmental factors. U.S.C. 1469) and Section 8 of 0160 in the Consolidated FINRA Rulebook, the This meeting is open to the public, Reorganization Plan Numbered 2 of defined terms in FINRA Rule 0160 would continue 1977. The U.S. Advisory Commission to apply equally to both the Transitional Rulebook Members and staff of Congress, the State and the Consolidated FINRA Rulebook, as Department, Defense Department, the on Public Diplomacy is authorized by applicable. See also Securities Exchange Act media, and other governmental and Public Law 101–246 (2009), 22 U.S.C. Release No. 58643 (September 25, 2008), 73 FR non-governmental organizations. To 6553, and has been further authorized 57174 (October 1, 2008) (Order Approving SR– through November 18, 2011. In the FINRA–2008–021), discussing ‘‘Rules of General request further information, or to Applicability.’’ request reasonable accommodation, absence of subsequent legislation 7 See Notice at 57785. extending the authority for the 8 Id. 10 15 U.S.C. 78s(b)(2). Commission, this meeting will be 9 15 U.S.C. 78o–3(b)(6). 11 17 CFR 200.30–3(a)(12). cancelled.

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Dated: October 17, 2011. are necessary to manage the various SUMMARY: In accordance with the Jamice M. Clayton, approvals issued by the organization Paperwork Reduction Act of 1995, FAA Administrative Assistant, U.S. Department of and to document approvals issued and invites public comments about our State. must be maintained in order to address intention to request the Office of [FR Doc. 2011–27732 Filed 10–25–11; 8:45 am] potential future safety issues. Management and Budget (OMB) BILLING CODE 4710–11–P Respondents: Approximately 83 approval to renew an information applicants. collection. Respondents to this survey Frequency: Information is collected are owners of general aviation aircraft. DEPARTMENT OF TRANSPORTATION on occasion. This information is used by FAA, NTSB, Estimated Average Burden per and other government agencies, the Federal Aviation Administration Response: 41.7 hours. aviation industry, and others for safety Estimated Total Annual Burden: assessment, planning, forecasting, cost/ Agency Information Collection 5,158 hours. benefit analysis, and to target areas for Activities; Requests for Comments: ADDRESSES: Interested persons are research. Clearance of Renewed Approval of invited to submit written comments on DATES: Written comments should be Information Collection; Organization the proposed information collection to submitted by December 27, 2011. Designation Authorization the Office of Information and Regulatory FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Aviation Affairs, Office of Management and Kathy DePaepe at (405) 954–9362, or by Administration (FAA), DOT. Budget. Comments should be addressed e-mail at: Kathy A. DePaepe @faa.gov. to the attention of the Desk Officer, ACTION: Notice and request for SUPPLEMENTARY INFORMATION: Department of Transportation/FAA, and comments. _ OMB Control Number: 2120–0060. sent via electronic mail to oira Title: General Aviation and Air Taxi SUMMARY: In accordance with the [email protected], or faxed to Activity and Avionics Survey. Paperwork Reduction Act of 1995, FAA (202) 395–6974, or mailed to the Office Form Numbers: There are no FAA invites public comments about our of Information and Regulatory Affairs, forms associated with this collection. intention to request the Office of Office of Management and Budget, Type of Review: Renewal of an Management and Budget (OMB) Docket Library, Room 10102, 725 17th information collection. approval to renew an information Street, NW., Washington, DC 20503. Background: Title 49, United States collection. The Federal Register Notice Public Comments Invited: You are Code, empowers the Secretary of with a 60-day comment period soliciting asked to comment on any aspect of this Transportation to collect and comments on the following collection of information collection, including (a) disseminate information relative to civil information was published on August Whether the proposed collection of aeronautics, to study the possibilities for 24, 2011, vol. 76, no. 164, page 53023– information is necessary for FAA’s development of air commerce and the 53024. This collection involves performance; (b) the accuracy of the aeronautical industries, and to make organizations applying to perform estimated burden; (c) ways for FAA to long-range plans for, and formulate certification functions on behalf of the enhance the quality, utility and clarity policy with respect to, the orderly FAA, including approving data and of the information collection; and (d) development and use of the navigable issuing various aircraft and organization ways that the burden could be airspace, radar installations and all certificates. minimized without reducing the quality other aids for air navigation. DATES: Written comments should be of the collected information. The agency Respondents to this survey are owners submitted by November 25, 2011. will summarize and/or include your of general aviation aircraft. This FOR FURTHER INFORMATION CONTACT: comments in the request for OMB’s information is used by FAA, NTSB, and Kathy DePaepe at (405) 954–9362, or by clearance of this information collection. other government agencies, the aviation e-mail at: Kathy A. DePaepe @faa.gov. Issued in Washington, DC, on October 20, industry, and others for safety SUPPLEMENTARY INFORMATION: 2011. assessment, planning, forecasting, cost/ OMB Control Number: 2120–0704. Albert R. Spence, benefit analysis, and to target areas for Title: Organization Designation FAA Assistant Information Collection research. Authorization. Clearance Officer, IT Enterprises Business Respondents: Approximately 83,500 Form Numbers: FAA Forms 8100–11, Services Division, AES–200. owners of general aviation aircraft. 8100–12, 8100–13. [FR Doc. 2011–27712 Filed 10–25–11; 8:45 am] Frequency: Information is collected Type of Review: Renewal of an BILLING CODE 4910–13–P annually. information collection. Estimated Average Burden per Background: Subpart D to part 183 Response: 20 minutes. allows the FAA to appoint organizations DEPARTMENT OF TRANSPORTATION Estimated Total Annual Burden: as representatives of the administrator. 13,000 hours. As authorized, these organizations Federal Aviation Administration ADDRESSES: Send comments to the perform certification functions on behalf FAA at the following address: Ms. Kathy of the FAA. Applications are submitted Agency Information Collection DePaepe, Room 126B, Federal Aviation to the appropriate FAA office and are Activities; Requests for Comments: Administration, AES–200, 6500 S. reviewed by the FAA to determine Clearance of Renewed Approval of MacArthur Blvd, Oklahoma City, OK whether the applicant meets the Information Collection; General 73169. requirements necessary to be authorized Aviation and Air Taxi Activity and Public Comments Invited: You are as a representative of the Administrator. Avionics Survey asked to comment on any aspect of this Procedures manuals are submitted and AGENCY: Federal Aviation information collection, including (a) approved by the FAA as a means to Administration (FAA), DOT. Whether the proposed collection of ensure that the correct processes are information is necessary for FAA’s ACTION: Notice and request for utilized when performing functions on performance; (b) the accuracy of the comments. behalf of the FAA. These requirements estimated burden; (c) ways for FAA to

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enhance the quality, utility and clarity package is made to the appropriate 53025. The collection involves of the information collection; and (d) Federal Aviation Administration (FAA) requirements for certain repair stations ways that the burden could be Aircraft Certification Office by an to provide documentation showing that minimized without reducing the quality aircraft/product manufacturer/modifier. persons handling hazmat for of the collected information. The agency Respondents: Approximately 2,558 transportation have been trained will summarize and/or include your manufacturers/modifiers. following DOT guidelines. comments in the request for OMB’s Frequency: Information is collected DATES: Written comments should be clearance of this information collection. on occasion. submitted by November 25, 2011. Estimated Average Burden per Issued in Washington, DC on October 20, FOR FURTHER INFORMATION CONTACT: 2011. Response: 7.35 hours. Kathy DePaepe at (405) 954–9362, or by Estimated Total Annual Burden: Albert R. Spence, e-mail at: Kathy A. DePaepe @faa.gov. 18,815 hours. FAA Assistant Information Collection SUPPLEMENTARY INFORMATION: Clearance Officer, IT Enterprises Business ADDRESSES: Send comments to the FAA OMB Control Number: 2120–0705. Services Division, AES–200. at the following address: Ms. Kathy Title: Hazardous Materials Training [FR Doc. 2011–27628 Filed 10–25–11; 8:45 am] DePaepe, Room 126B, Federal Aviation Requirements. Administration, AES–200, 6500 S. BILLING CODE 4910–13–P Form Numbers: There are no FAA MacArthur Blvd., Oklahoma City, OK forms associated with this collection. 73169. Type of Review: Renewal of an DEPARTMENT OF TRANSPORTATION Public Comments Invited: You are information collection. asked to comment on any aspect of this Background: The FAA, as prescribed Federal Aviation Administration information collection, including (a) in 14 CFR parts 121 and 135, requires Whether the proposed collection of certificate holders to submit manuals Agency Information Collection information is necessary for FAA’s and hazmat training programs, or Activities; Requests for Comments: performance; (b) the accuracy of the revisions to an approved hazmat Clearance of Renewed Approval of estimated burden; (c) ways for FAA to training program to obtain initial and Information Collection; Type enhance the quality, utility and clarity final approval as part of the FAA Certification Procedures for Changed of the information collection; and (d) certification process. Original Products ways that the burden could be certification is completed in accordance AGENCY: Federal Aviation minimized without reducing the quality with 14 CFR part 119. Continuing Administration (FAA), DOT. of the collected information. The agency certification is completed in accordance will summarize and/or include your ACTION: Notice and request for with part 121 and part 135. The FAA comments in the request for OMB’s comments. uses the approval process to determine clearance of this information collection. compliance of the hazmat training SUMMARY: In accordance with the Issued in Washington, DC on October 19, programs with the applicable Paperwork Reduction Act of 1995, FAA 2011. regulations, national policies and safe invites public comments about our Albert R. Spence, operating practices. The FAA must intention to request the Office of FAA Assistant Information Collection ensure that the documents adequately Management and Budget (OMB) Clearance Officer, IT Enterprises Business establish safe operating procedures. approval to renew an information Services Division, AES–200. Respondents: Approximately 2,772 collection. 14 CFR part 21 may require [FR Doc. 2011–27635 Filed 10–25–11; 8:45 am] operators. applicants to demonstrate compliance BILLING CODE 4910–13–P Frequency: Information is collected with the latest regulations in effect on on occasion. the date of application for amended Estimated Average Burden per Type Certificates (TC) or Supplemental DEPARTMENT OF TRANSPORTATION Response: 7 hours. TCs for aeronautical products. Estimated Total Annual Burden: DATES: Written comments should be Federal Aviation Administration 6,900 hours. submitted by December 27, 2011. ADDRESSES:Interested persons are Agency Information Collection invited to submit written comments on FOR FURTHER INFORMATION CONTACT: Activities; Requests for Comments: the proposed information collection to Kathy DePaepe at (405) 954–9362, or by Clearance of Renewed Approval of the Office of Information and Regulatory e-mail at: Kathy A. DePaepe @faa.gov. Information Collection; Hazardous Affairs, Office of Management and SUPPLEMENTARY INFORMATION: Materials Training Requirements OMB Control Number: 2120–0657. Budget. Comments should be addressed Title: Type Certification Procedures AGENCY: Federal Aviation to the attention of the Desk Officer, for Changed Products. Administration (FAA), DOT. Department of Transportation/FAA, and _ Form Numbers: There are no FAA ACTION: Notice and request for sent via electronic mail to oira forms associated with this collection. comments. [email protected], or faxed to Type of Review: Renewal of an (202) 395–6974, or mailed to the Office information collection. SUMMARY: In accordance with the of Information and Regulatory Affairs, Background: 14 CFR part 21 requires Paperwork Reduction Act of 1995, FAA Office of Management and Budget, that, with certain exceptions, all invites public comments about our Docket Library, Room 10102, 725 17th aviation product changes comply with intention to request the Office of Street, NW., Washington, DC 20503. the latest airworthiness standards when Management and Budget (OMB) Public Comments Invited: You are determining the certification basis for approval to renew an information asked to comment on any aspect of this aeronautical products. This process is collection. The Federal Register Notice information collection, including (a) intended to increase safety by applying with a 60-day comment period soliciting Whether the proposed collection of the latest regulations where practicable. comments on the following collection of information is necessary for FAA’s A certification application request, in information was published on August performance; (b) the accuracy of the letter form, and a supporting data 24, 2011, vol. 76, no. 164, page 53024– estimated burden; (c) ways for FAA to

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enhance the quality, utility and clarity Respondents: Approximately 61 approval to renew an information of the information collection; and (d) applicants. collection. The Federal Register Notice ways that the burden could be Frequency: Information is collected with a 60-day comment period soliciting minimized without reducing the quality on occasion. comments on the following collection of of the collected information. The agency Estimated Average Burden per information was published on August will summarize and/or include your Response: 4 hours. 24, 2011, vol. 76, no. 164, page 53025. comments in the request for OMB’s Estimated Total Annual Burden: 616 The Airport Safety Data Program clearance of this information collection. hours. involves the collection and Issued in Washington, DC, on October 20, ADDRESSES: Interested persons are dissemination of civil aeronautics 2011. invited to submit written comments on information. Albert R. Spence, the proposed information collection to DATES: Written comments should be FAA Assistant Information Collection the Office of Information and Regulatory submitted by November 25, 2011. Affairs, Office of Management and Clearance Officer, IT Enterprises Business FOR FURTHER INFORMATION CONTACT: Budget. Comments should be addressed Services Division, AES–200. Kathy DePaepe at (405) 954–9362, or by to the attention of the Desk Officer, [FR Doc. 2011–27713 Filed 10–25–11; 8:45 am] e-mail at: Kathy A. DePaepe @faa.gov. BILLING CODE 4910–13–P Department of Transportation/FAA, and sent via electronic mail to SUPPLEMENTARY INFORMATION: [email protected], or faxed OMB Control Number: 2120–0015. Title: FAA Airport Master Record. DEPARTMENT OF TRANSPORTATION to (202) 395–6974, or mailed to the Form Numbers: FAA Forms 5010–1, Office of Information and Regulatory 5010–2, 5010–3, 5010–5. Federal Aviation Administration Affairs, Office of Management and Type of Review: Renewal of an Budget, Docket Library, Room 10102, Agency Information Collection information collection. 725 17th Street, NW., Washington, DC Background: 49 U.S.C. 329(b) Activities; Requests for Comments: 20503. empowers and directs the Secretary of Clearance of Renewed Approval of Public Comments Invited: You are Transportation to collect and Information Collection; Aviation asked to comment on any aspect of this disseminate information on civil Insurance information collection, including (a) aeronautics. Aeronautical information is AGENCY: Federal Aviation Whether the proposed collection of required to be collected by the FAA in Administration (FAA), DOT. information is necessary for FAA’s order to carry out agency missions such performance; (b) the accuracy of the ACTION: Notice and request for as those related to aviation flying safety, estimated burden; (c) ways for FAA to comments. flight planning, airport engineering and enhance the quality, utility and clarity federal grants analysis, aeronautical SUMMARY: In accordance with the of the information collection; and (d) chart and flight information Paperwork Reduction Act of 1995, FAA ways that the burden could be publications, and the promotion of air invites public comments about our minimized without reducing the quality commerce as required by statute. intention to request the Office of of the collected information. The agency Respondents: Approximately 19,800 Management and Budget (OMB) will summarize and/or include your airport owners/managers and state approval to renew an information comments in the request for OMB’s inspectors. collection. The Federal Register Notice clearance of this information collection. Frequency: Information is collected with a 60-day comment period soliciting Issued in Washington, DC, on October 20, on occasion. comments on the following collection of 2011. Estimated Average Burden per information was published on August Albert R. Spence, Response: 1 hour. 24, 2011, vol. 76, no. 164, page 53022– FAA Assistant Information Collection Estimated Total Annual Burden: 53023. The requested information is Clearance Officer, IT Enterprises Business 8,870 hours. included in air carriers applications for Services Division, AES–200. ADDRESSES: Interested persons are insurance when insurance is not [FR Doc. 2011–27710 Filed 10–25–11; 8:45 am] invited to submit written comments on available from private sources. BILLING CODE 4910–13–P the proposed information collection to DATES: Written comments should be the Office of Information and Regulatory submitted by November 25, 2011. Affairs, Office of Management and FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF TRANSPORTATION Budget. Comments should be addressed Kathy DePaepe at (405) 954–9362, or by to the attention of the Desk Officer, e-mail at: Kathy A. DePaepe @faa.gov. Federal Aviation Administration Department of Transportation/FAA, and sent via electronic mail to SUPPLEMENTARY INFORMATION: OMB Agency Information Collection [email protected], or faxed Control Number: 2120–0514. Activities: Requests for Comments; to (202) 395–6974, or mailed to the Title: Aviation Insurance. Clearance of Renewed Approval of Office of Information and Regulatory Form Numbers: There are no FAA Information Collection: FAA Airport Affairs, Office of Management and forms associated with this collection. Master Record Type of Review: Renewal of an Budget, Docket Library, Room 10102, information collection. AGENCY: Federal Aviation 725 17th Street, NW., Washington, DC Background: The information Administration (FAA), DOT. 20503. submitted by applicants for insurance ACTION: Notice and request for Public Comments Invited: You are under Chapter 443 of Title 49 U.S.C. is comments. asked to comment on any aspect of this used by the FAA to identify the information collection, including (a) eligibility of parties to be insured, the SUMMARY: In accordance with the Whether the proposed collection of amount of coverage required, and Paperwork Reduction Act of 1995, FAA information is necessary for FAA’s insurance premiums. Without collection invites public comments about our performance; (b) the accuracy of the of this information, the FAA would not intention to request the Office of estimated burden; (c) ways for FAA to be able to issue required insurance. Management and Budget (OMB) enhance the quality, utility and clarity

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of the information collection; and (d) checking required to perform instructor licensees have complied with financial ways that the burden could be and check airmen functions. responsibility requirements (including minimized without reducing the quality Respondents: Approximately 3,000 maximum probable loss determination) of the collected information. The agency check airmen and flight instructors. as set forth in FAA regulations. will summarize and/or include your Frequency: Information is collected DATES: Written comments should be comments in the request for OMB’s on occasion. submitted by November 25, 2011. clearance of this information collection. Estimated Average Burden per FOR FURTHER INFORMATION CONTACT: Response: 15 seconds. Issued in Washington, DC, on October 20, Kathy DePaepe at (405) 954–9362, or by Estimated Total Annual Burden: 13 2011. e-mail at: Kathy A. DePaepe @faa.gov. hours. Albert R. Spence, SUPPLEMENTARY INFORMATION: ADDRESSES: FAA Assistant Information Collection Send comments to the FAA OMB Control Number: 2120–0601. Clearance Officer, IT Enterprises Business at the following address: Ms. Kathy Title: Financial Responsibility for Services Division, AES–200. DePaepe, Room 126B, Federal Aviation Licensed Launch Activities. [FR Doc. 2011–27709 Filed 10–25–11; 8:45 am] Administration, AES–200, 6500 S. Form Numbers: There are no FAA MacArthur Blvd, Oklahoma City, OK BILLING CODE 4910–13–P forms associated with this collection. 73169. Type of Review: Renewal of an Public Comments Invited: You are information collection. DEPARTMENT OF TRANSPORTATION asked to comment on any aspect of this Background: This collection is information collection, including applicable upon concurrence of requests Federal Aviation Administration (a) Whether the proposed collection of for conducting commercial launch information is necessary for FAA’s operations as prescribed in 14 CFR, Agency Information Collection performance; (b) the accuracy of the Parts 401, et al., Commercial Space Activities; Requests for Comments: estimated burden; (c) ways for FAA to Transportation Licensing Regulation. A Clearance of Renewed Approval of enhance the quality, utility and clarity commercial space launch services Information Collection; Training and of the information collection; and provider must complete the Launch Qualification Requirements for Check (d) ways that the burden could be Operators License, Launch-Specific Airmen and Flight Instructors minimized without reducing the quality License or Experimental Permit in order of the collected information. The agency AGENCY: Federal Aviation to gain authorization for conducting will summarize and/or include your Administration (FAA), DOT. commercial launch operations. comments in the request for OMB’s Respondents: 6 commercial space ACTION: Notice and request for clearance of this information collection. launch services providers. comments. Dated: Issued in Washington, DC on Frequency: Information is collected SUMMARY: In accordance with the October 20, 2011. on occasion. Paperwork Reduction Act of 1995, FAA Albert R. Spence, Estimated Average Burden per invites public comments about our FAA Assistant Information Collection Response: 100 hours. intention to request the Office of Clearance Officer, IT Enterprises Business Estimated Total Annual Burden: 600 Management and Budget (OMB) Services Division, AES–200. hours. approval to renew an information [FR Doc. 2011–27632 Filed 10–25–11; 8:45 am] ADDRESSES: Interested persons are collection. The rule allows some BILLING CODE 4910–13–P invited to submit written comments on experienced pilots who would the proposed information collection to otherwise qualify as flight instructors or the Office of Information and Regulatory check airmen, but who are not DEPARTMENT OF TRANSPORTATION Affairs, Office of Management and medically eligible to hold the requisite Budget. Comments should be addressed Federal Aviation Administration medical certificate, to perform flight to the attention of the Desk Officer, Department of Transportation/FAA, and instructor or check airmen functions in Agency Information Collection sent via electronic mail to a simulator. Activities; Requests for Comments: [email protected], or faxed DATES: Written comments should be Clearance of Renewed Approval of to (202) 395–6974, or mailed to the submitted by December 27, 2011. Information Collection; Financial Office of Information and Regulatory Responsibility for Licensed Launch FOR FURTHER INFORMATION CONTACT: Affairs, Office of Management and Activities Kathy DePaepe at (405) 954–9362, or by Budget, Docket Library, Room 10102, e-mail at: [email protected]. AGENCY: Federal Aviation 725 17th Street, NW., Washington, DC SUPPLEMENTARY INFORMATION: Administration (FAA), DOT. 20503. OMB Control Number: 2120–0600. ACTION: Notice and request for Public Comments Invited: You are Title: Training and Qualification comments. asked to comment on any aspect of this Requirements for Check Airmen and information collection, including (a) Flight Instructors SUMMARY: In accordance with the Whether the proposed collection of Form Numbers: There are no FAA Paperwork Reduction Act of 1995, FAA information is necessary for FAA’s forms associated with this collection. invites public comments about our performance; (b) the accuracy of the Type of Review: Renewal of an intention to request the Office of estimated burden; (c) ways for FAA to information collection. Management and Budget (OMB) enhance the quality, utility and clarity Background: Federal Aviation approval to renew an information of the information collection; and (d) Regulations (FAR) Parts 121.411(d), collection. The Federal Register Notice ways that the burden could be 121.412(d), 135.337(d), and 135.338(d) with a 60-day comment period soliciting minimized without reducing the quality require the collection of this data. This comments on the following collection of of the collected information. The agency collection is necessary to insure that information was published on August will summarize and/or include your instructors and check airmen have 24, 2011, vol. 76, no. 164, page 53024. comments in the request for OMB’s completed necessary training and Information is used to determine if clearance of this information collection.

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Issued in Washington, DC, on October 20, • Presentation of FRAC/OC Changes Attendance is open to the interested 2011. and Approval public but limited to space availability. Albert R. Spence, • IP60/IP61–12B/DO–178B (Object With the approval of the chairman, FAA Assistant Information Collection Oriented and RT), Post FRAC Changes members of the public may present oral Clearance Officer, IT Enterprises Business • IP58/IP59 (Model Based): Post statements at the meeting. Persons Services Division, AES–200. FRAC Changes wishing to present statements or obtain [FR Doc. 2011–27711 Filed 10–25–11; 8:45 am] • Lunch information should contact the person BILLING CODE 4910–13–P • Presentation of FRAC/OC Changes listed in the FOR FURTHER INFORMATION and Approval CONTACT section. Members of the public • IP58/IP59 (Model Based): Post may present a written statement to the DEPARTMENT OF TRANSPORTATION FRAC Changes committee at any time. • P52/IP53 (Clarifications): Post Federal Aviation Administration Issued in Washington, DC, on October 20, FRAC Changes 2011. • Break-out Sessions Eighteenth Meeting: RTCA Special Robert L. Bostiga, • IP52—Clarifications Committee 205/EUROCAE WG–71: Manager, RTCA Advisory Committee. • IP60—Object Oriented Software Considerations in • IP58—Model Based [FR Doc. 2011–27708 Filed 10–25–11; 8:45 am] Aeronautical Systems • Others as Required BILLING CODE 4910–13–P AGENCY: Federal Aviation November 16, 2011 Administration (FAA), U.S. Department DEPARTMENT OF TRANSPORTATION of Transportation (DOT). • Break-out Sessions • ACTION: Notice of RTCA Special IP52—Clarifications Federal Aviation Administration • IP60—Object Oriented Committee 205/EUROCAE WG–71 • IP58—Model Based Eighth Meeting: RTCA Special meeting: Software Considerations in • Others as required Committee 222 Inmarsat Aeronautical Aeronautical Systems. • Presentation of any Further Mobile Satellite (Route) Services SUMMARY: The FAA is issuing this notice Corrections and Approval to advise the public of a meeting of • IP52, 58 or 60 AGENCY: Federal Aviation RTCA Special Committee 205/ • Lunch Administration (FAA), U.S. Department EUROCAE WG–71: Software • Presentation of any Further of Transportation (DOT). Considerations in Aeronautical Systems Corrections and Approval ACTION: Notice of RTCA Special Agenda for the 18th meeting. • IP52, 58 or 60 Committee 222, Inmarsat Aeronautical DATES: The meeting will be held • Break-out Sessions Mobile Satellite (Route) Services November 15–18, 2011, from 8:30 a.m. • IP52—Clarifications meeting. to 5 p.m. • IP60—Object Oriented • SUMMARY: The FAA is issuing this notice ADDRESSES: The meeting will be held at IP58—Model Based • Others as required to advise the public of a meeting of Embry-Riddle Aeronautical University RTCA Special Committee 222, Inmarsat Instructional Center Auditorium, Clyde November 17, 2011 Aeronautical Mobile Satellite (Route) Morris Boulevard, Daytona Beach, FL • Services for the Eighth Meeting. 32218. Break-out Sessions (as required to work comments) DATES: The meeting will be held FOR FURTHER INFORMATION CONTACT: The • IP58\8—Model based Design November 17, 2011, from 1–5 p.m. RTCA Secretariat, 1150 18th Street, • IP60—Object Oriented ADDRESSES: The meeting will be held at NW., Suite 910, Washington, DC 20036, • IP52/IP53—FAQs et al. Inmarsat, 1101 Connecticut Avenue, or by telephone at (202) 833–9339, fax • Presentations of any further NW., Suite 1200, Washington, DC at (202) 833–9434, or Web site at Corrections and Approval 20036. http://www.rtca.org. • IP52—Model based Design FOR FURTHER INFORMATION CONTACT: The SUPPLEMENTARY INFORMATION: Pursuant • IP58—Object Oriented RTCA Secretariat, 1150 18th Street, to section 10(a)(2) of the Federal • IP60—FAQs et al. NW., Suite 910, Washington, DC 20036, Advisory Committee Act (Pub. L. 92– • Lunch or by telephone at (202) 833–9339, fax 463, 5 U.S.C., App.), notice is hereby • Presentations of any further at (202) 833–9434, or Web site at given for a Special Committee 205/ Corrections and Approval http://www.rtca.org. EUROCAE WG–71, Software • IP52—Model based Design Considerations in Aeronautical Systems. • IP58—Object Oriented SUPPLEMENTARY INFORMATION: Pursuant The agenda will include the following: • IP60—FAQs et al. to section 10(a) (2) of the Federal • Break-out Sessions Advisory Committee Act (Pub. L. 92– Agenda • IP52—Clarifications 463, 5 U.S.C., App.), notice is hereby November 15, 2011 • IP58—Object Oriented given for a Special Committee 222, • • IP60—Model Based Inmarsat Aeronautical Mobile Satellite Open Plenary Session • (Route) Services. The agenda will • Chairman’s Introductory Remarks Others as Required • include the following: Facilities Review November 18, 2011 • Recognition of the FAA and EASA • Agenda Representatives Presentations of any further • Review of Meeting Agenda Corrections and Approval November 17, 2011 • Review and Approval of • IP52, 58 or 60 • Co-Chair Welcomes & Introductions Seventeenth Meeting Minutes • Summary of results of Voting • Review of Minutes of previous • Road Map to Completion Sessions meeting • Embry-Riddle Aeronautical • Closing Remarks • Review of topics for current agenda University (Host Presentation) • Adjourn • Review of current industry status

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• Review of status from briefing to and follow the instructions for sending transport passengers and provide PMC in March 2011. your comments electronically. medevac services. • Discuss of PMC request to prepare • Mail: Send comments to the Docket [FR Doc. 2011–27735 Filed 10–25–11; 8:45 am] generic GOLD-based document. Management Facility; U.S. Department BILLING CODE 4910–13–P • Discuss update to terms of reference of Transportation, 1200 New Jersey to be submitted to PMC • Avenue, SE., West Building Ground Review of suggested modifications Floor, Room W12–140, Washington, DC DEPARTMENT OF TRANSPORTATION to MOPS (DO–210 and DO–262 SBB 20590. technique-specific) testing and Federal Aviation Administration • Fax: Fax comments to the Docket qualification. [Summary Notice No. PE–2011–48] • Review of any new MASPS Management Facility at 202–493–2251. • material. Hand Delivery: Bring comments to Petition for Exemption; Summary of • Review of any working papers the Docket Management Facility in Petition Received • Discussion of work plan Room W12–140 of the West Building • Discussion of next meeting Ground Floor at 1200 New Jersey AGENCY: Federal Aviation • Adjourn Avenue, SE., Washington, DC, between Administration (FAA), DOT. Attendance is open to the interested 9 a.m. and 5 p.m., Monday through ACTION: Notice of petition for exemption public but limited to space availability. Friday, except Federal holidays. received. With the approval of the chairman, Privacy: We will post all comments members of the public may present oral we receive, without change, to http:// SUMMARY: This notice contains a statements at the meeting. Persons www.regulations.gov, including any summary of a petition seeking relief wishing to present statements or obtain personal information you provide. from specified requirements of 14 CFR. information should contact the person Using the search function of our docket The purpose of this notice is to improve listed in the FOR FURTHER INFORMATION Web site, anyone can find and read the the public’s awareness of, and CONTACT section. Members of the public comments received into any of our participation in, this aspect of FAA’s may present a written statement to the dockets, including the name of the regulatory activities. Neither publication committee at any time. individual sending the comment (or of this notice nor the inclusion or Issued in Washington, DC, on October 21, signing the comment for an association, omission of information in the summary 2011. business, labor union, etc.). You may is intended to affect the legal status of Robert L. Bostiga, review DOT’s complete Privacy Act the petition or its final disposition. Manager, RTCA Advisory Committee. Statement in the Federal Register DATES: Comments on this petition must identify the petition docket number [FR Doc. 2011–27707 Filed 10–25–11; 8:45 am] published on April 11, 2000 (65 FR involved and must be received on or BILLING CODE 4910–13–P 19477–78). Docket: To read background before November 15, 2011. documents or comments received, go to ADDRESSES: You may send comments DEPARTMENT OF TRANSPORTATION http://www.regulations.gov at any time identified by Docket Number FAA– or to the Docket Management Facility in 2011–1129 using any of the following Federal Aviation Administration Room W12–140 of the West Building methods: • Government-wide rulemaking Web [Summary Notice No. PE–2011–47] Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between site: Go to http://www.regulations.gov Petition for Exemption; Summary of 9 a.m. and 5 p.m., Monday through and follow the instructions for sending Petition Received Friday, except Federal holidays. your comments electronically. • Mail: Send comments to the Docket AGENCY: Federal Aviation FOR FURTHER INFORMATION CONTACT: Management Facility; U.S. Department Administration (FAA), DOT. Tyneka L. Thomas, 202–267–7626, or of Transportation, 1200 New Jersey ACTION: Notice of petition for exemption Ralen Gao, 202–267–3168, Office of Avenue, SE., West Building Ground received. Rulemaking, Federal Aviation Floor, Room W12–140, Washington, DC Administration, 800 Independence 20590. SUMMARY: This notice contains a Avenue, SW., Washington, DC 20591. • Fax: Fax comments to the Docket summary of a petition seeking relief This notice is published pursuant to Management Facility at 202–493–2251. from specified requirements of 14 CFR. 14 CFR 11.85. • Hand Delivery: Bring comments to The purpose of this notice is to improve Issued in Washington, DC, on October 21, the Docket Management Facility in the public’s awareness of, and 2011. Room W12–140 of the West Building participation in, this aspect of FAA’s Dennis R. Pratte, Ground Floor at 1200 New Jersey regulatory activities. Neither publication Acting Director, Office of Rulemaking. Avenue, SE., Washington, DC, between of this notice nor the inclusion or 9 a.m. and 5 p.m., Monday through omission of information in the summary Petition for Exemption Friday, except Federal holidays. is intended to affect the legal status of Docket No.: FAA–2011–1084. Privacy: We will post all comments the petitions or their final disposition. we receive, without change, to http:// DATES: Comments on these petitions Petitioner: Era Helicopters, LLC. www.regulations.gov, including any must identify the petition docket Section of 14 CFR Affected: Special personal information you provide. number involved and must be received Federal Aviation Regulations 77. Using the search function of our docket on or before November 15, 2011. Description of Relief Sought: Web site, anyone can find and read the ADDRESSES: You may send comments Era Helicopters, LLC (Era) requests an comments received into any of our identified by Docket Number FAA– exemption from Special Federal dockets, including the name of the 2011–1084 using any of the following Aviation Regulations 77 which would individual sending the comment (or methods: allow Era to operate helicopters as a signing the comment for an association, • Government-wide rulemaking Web contract carrier primarily for oil business, labor union, etc.). You may site: Go to http://www.regulations.gov companies and other potential clients to review DOT’s complete Privacy Act

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Statement in the Federal Register Columbia Ave., Campus Building, Suite Any person may inspect, by published on April 11, 2000 (65 FR 2–260, College Park, GA 30337. appointment, the request in person at 19477–78). In addition, one copy of any the FAA office listed above under FOR Docket: To read background comments submitted to the FAA must FURTHER INFORMATION CONTACT. documents or comments received, go to be mailed or delivered to: Tony N. In addition, any person may, upon http://www.regulations.gov at any time Brown, Halifax County Manager, 10 appointment and request, inspect the or to the Docket Management Facility in North King Street, Halifax, NC 27839. application, notice and other documents Room W12–140 of the West Building FOR FURTHER INFORMATION CONTACT: determined by the FAA to be related to Ground Floor at 1200 New Jersey Larry F. Clark, Assistant Manager, the application in person at the Halifax Avenue, SE., Washington, DC, between Federal Aviation Administration, County Manager’s Office, 10 North King 9 a.m. and 5 p.m., Monday through Atlanta Airports District Office, 1701 Street, Halifax, NC. Friday, except Federal holidays. Columbia Avenue, Campus Building, Issued in College Park, Georgia on October FOR FURTHER INFORMATION CONTACT: Suite 2–260, College Park, GA 30337. 12, 2011. Keira Jones (202) 267–4024, Tyneka The request to release property may Scott L. Seritt, Thomas (202) 267–7626, or David be reviewed, by appointment, in person Manager, FAA Atlanta Airports District Staples (202) 267–4058, Office of at this same location. Office. Rulemaking, Federal Aviation SUPPLEMENTARY INFORMATION: The FAA [FR Doc. 2011–27634 Filed 10–25–11; 8:45 am] Administration, 800 Independence invites public comment on the request BILLING CODE 4910–13–P Avenue, SW., Washington, DC 20591. to release approximately 292 acres of This notice is published pursuant to property known as the Halifax County 14 CFR 11.85. Airport (RZZ) under the provisions of DEPARTMENT OF TRANSPORTATION Issued in Washington, DC, on October 21, 49 U.S.C. 47107(h)(2). In May, 2009, the 2011. Halifax-Northampton Regional Airport National Highway Traffic Safety Dennis R. Pratte, Authority opened the new Halifax- Administration Northampton Regional Airport (IXA) as Acting Director, Office of Rulemaking. Reports, Forms and Record Keeping a replacement for the Halifax County Requirements, Agency Information Petition for Exemption Airport (RZZ). On April 20, 2010, the Collection Activity Under OMB Review Docket No.: FAA–2011–1129. Chairman of the Board of Petitioner: American Airlines. Commissioners of Halifax County and AGENCY: National Highway Traffic Section of 14 CFR Affected: 14 CFR the Mayor of Roanoke Rapids notified Safety Administration, DOT. 60.17(d). the FAA that because of the opening of ACTION: Notice. Description of Relief Sought: the new Halifax-Northampton Regional Petitioner requests relief to allow their Airport and the subsequent SUMMARY: In compliance with the B757 FSTD to be qualified to Level D decommissioning of RZZ that they were Paperwork Reduction Act of 1995 (44 and for the FSTD to remain under its officially requesting a full release of the U.S.C. 3501 et seq.), this notice initial Qualification Test Guide (QTG) affected property from federal announces that the Information criteria described by Advisory Circular obligations. All operations at RZZ have Collection Request (ICR) abstracted (AC) 120–40B. ceased. The FAA has determined that below has been forwarded to the Office [FR Doc. 2011–27738 Filed 10–25–11; 8:45 am] the request to release property at RZZ of Management and Budget (OMB) for BILLING CODE 4910–13–P submitted by the airport sponsors meets review and comment. The ICR describes the procedural requirements of the FAA. the nature of the information collections The release of this property does not and their expected burden. The Federal DEPARTMENT OF TRANSPORTATION and will not impact future aviation Register Notice with a 60-day comment period was published on June 24, 2011 Federal Aviation Administration needs in the region. The FAA may approve the request in whole no sooner [76 FR 37189]. Notice of Request To Release Airport than 30 days after publication of this DATES: Comments must be submitted on Property notice. or before November 25, 2011. FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Aviation The Following Is a Brief Overview of the Request National Highway Traffic Safety Administration (FAA) DOT. Administration, Office of Defects ACTION: Notice of Intent to Rule on The Airport Sponsors are proposing Investigation, 202–493–0210. 1200 New Request to Release Airport Property at the release of the entire airport property Jersey Avenue, SE., W48–221, the Halifax County Airport (RZZ), and associated facilities. The release of Washington, DC 20590. Roanoke Rapids, North Carolina. land is necessary to comply with FAA SUPPLEMENTARY INFORMATION: Grant Assurances that do not allow SUMMARY: The FAA proposes to rule and federally acquired airport property to be National Highway Traffic Safety invites public comment on the release of used for non-aviation purposes. The Administration land at the Halifax County Airport permanent abandonment of the subject (1) Title: Replaceable Light Source (RZZ), Roanoke Rapids, NC under the property will result in the lands of RZZ Dimensional Information Collection, 49 provisions of 49 U.S.C. 47107(h). being changed from aeronautical to CFR part 564. DATES: Comments must be received on nonaeronautical use and release of the OMB Number: 2127–0563. or before November 25, 2011. lands from the conditions of the AIP Type of Request: Extension of a ADDRESSES: Comments on this Grant Agreement Grant Assurances. In currently approved collection. application may be mailed or delivered accordance with 49 U.S.C. Affected Public: Business or other for to the FAA at the following address: 47107(c)(2)(B)(i) and (iii), the Airport profit organizations. Larry F. Clark, Assistant Manager, Sponsor has reinvested an amount equal Abstract: The information to be Federal Aviation Administration, to the fair market value of RZZ in the collected is in response to 49 CFR part Atlanta Airports District Office, 1701 recently-constructed IXA. 564, ‘‘Replaceable Light Source

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Dimensional Information.’’ Persons standard and the compliance testing of Issued in Washington, DC, on October 20, desiring to use newly designed new tractors and trailers will be 2011. replaceable headlamp light sources are complicated. Labeling is also important Nathaniel Beuse, required to submit interchangeability to small trailer manufactures because it Director, Office of Crash Avoidance and performance specifications to the may help them to certify compliance. Standards. agency. After a short agency review to Because wider stripes or material of [FR Doc. 2011–27656 Filed 10–25–11; 8:45 am] assure completeness, the information is lower brightness also can provide the BILLING CODE 4910–59–P placed in a public docket for use by any minimum safety performance, the person who would desire to marking system serves the additional manufacture headlamp light sources for role of identifying the minimum stripe DEPARTMENT OF TRANSPORTATION highway motor vehicles. In Federal width required for retroreflective Motor Vehicle Safety Standard No. 108, brightness of the particular material. National Highway Traffic Safety Lamps, reflective devices and associated Since the differences between the Administration equipment,’’ part 564 submission are brightness grades of suitable [Docket No. NHTSA–2010–0047; Notice 2] referenced as being the source of retroreflective conspicuity material is information regarding the performance not obvious from inspection, the Tireco, Inc., Grant of Petition for and interchangeability information for marking system is necessary for tractor Decision of Inconsequential legal headlamp light sources, whether and trailer manufacturers and repair Noncompliance original equipment or replacement shops to assure compliance and for AGENCY: National Highway Traffic equipment. Thus, the submitted FMCSA to inspect tractors and trailers Safety Administration, DOT. information about headlamp light in use. Permanent labeling is used to sources becomes the basis for identify retroreflective material having ACTION: Grant of Petition for Decision of certification of compliance with safety the minimum properties required for Inconsequential Noncompliance. standards. effective conspicuity of trailers at night. SUMMARY: Tireco, Inc., (Tireco), has Estimated Total Annual Burden: 28. The information enables the FMCSA to Estimated Number of Respondents: 7. determined that approximately 6,170 of make compliance inspections, and it its ‘‘GEO-Trac’’ brand P235/75R15 (2) Title: Compliance Labeling of aids tractor and trailer owners and Retroreflective Materials heavy Trailer passenger car tires, manufactured repairs shops in choosing the correct between June 12, 2009 and August 20, Conspicuity. repair materials for damaged tractors OMB Number: 2127–0569. 2009 by the fabricating manufacturer, Type of Request: Extension of a and trailers. It also aids smaller trailer the Shandong Linglong Tyre Co., Ltd., currently approved collection. manufacturers in certifying compliance and imported into the United States by Affected Public: Business or other for of their products. Tireco, do not comply with paragraph profit organizations. The FMCSA will not be able to S5.5(c) of Federal Motor Vehicle Safety Abstract: Federal Motor Vehicle determine whether trailers are properly Standard (FMVSS) No. 139, New Safety Standard No. 108, ‘‘Lamps equipped during roadside inspections pneumatic radial tires for light vehicles. Reflective Devices, and Associated without labeling. The use of cheaper Tireco has filed an appropriate report Equipment,’’ specifies requirements for and more common reflective materials, pursuant to 49 CFR part 573, Defect and vehicle lighting for the purposes of which are ineffective for the Noncompliance Responsibility and reducing traffic accidents and their application, would be expected in Reports (dated August 31, 2009). tragic results by providing adequate repairs without the labeling Pursuant to 49 U.S.C. 30118(d) and roadway illumination, improved vehicle requirement. 30120(h) and the rule implementing conspicuity, appropriate information Estimated Total Annual Burden: 1. those provisions at 49 CFR part 556, transmission through signal lamps, in Estimated Number of Respondents: 3. Tireco has petitioned for an exemption both day, night, and other conditions of from the notification and remedy ADDRESSES: reduced visibility. For certifications and Send comments, within 30 requirements of 49 U.S.C. chapter 301 identification purposes, the Standard days, to the Office of Information and on the basis that this noncompliance is requires the permanent marking of the Regulatory Affairs, Office of inconsequential to motor vehicle safety. letters ‘‘DOT–C2,’’ ‘‘DOT–C3’’, or ‘‘DOT Management and Budget, 725–17th Notice of receipt of Tireco’s petition –C4’’ at least 3mm high at regular Street, NW., Washington, DC 20503, was published, with a 30-day public intervals on retroreflective sheeting Attention NHTSA Desk Officer. comment period, on April 21, 2010, in material having adequate performance Comments are invited on: Whether the Federal Register (75 FR 20879). No to provide effective trailer conspicuity. the proposed collection of information comments were received. To view the The manufacturers of new tractors is necessary for the proper performance petition and all supporting documents and trailers are required to certify that of the functions of the Department, log onto the Federal Docket their products are equipped with including whether the information will Management System Web site at: retroreflective material complying with have practical utility; the accuracy of http://www.regulations.gov/. Then the requirements of the standard. The the Department’s estimate of the burden follow the online search instructions to Federal Motor Carrier Safety of the proposed information collection; locate docket number ‘‘NHTSA–2010– Administration (FMCSA) enforces this ways to enhance the quality, utility and 0047.’’ and other standards through roadside clarity of the information to be For further information on this inspections of trucks. There is no collected; and ways to minimize the decision, contact Mr. George Gillespie, practical field test for the performance burden of the collection of information Office of Vehicle Safety Compliance, the requirements, and labeling is the only on respondents, including the use of National Highway Traffic Safety objectives way of distinguishing trailer automated collection techniques or Administration (NHTSA), telephone conspicuity grade material from lower other forms of information technology. (202) 366–5299, facsimile (202) 366– performance material. Without labeling, A Comment to OMB is most effective 7002. FMCSA will not be able to enforce the if OMB receives it within 30 days of Affected are approximately 6,170 tires performance requirements of the publication. imported into the United States by

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Tireco who identified the tires as ‘‘Geo- that NHTSA has previously granted tire noncompliance and to remedy the Trac’’ brand P235/75R15 passenger car companies inconsequentiality defect or noncompliance. Therefore, this tires. In consultation with the exemptions relating to errors in the decision only applies to the 3,370 1 fabricating manufacturer, the Shandong marking of maximum inflation pressure. passenger car replacement tires that Linglong Tyre Co., Ltd., Tireco has (See Michelin North America, Inc., 70 Tireco no longer controlled at the time determined that all of the noncompliant FR 10161 (March 2, 2005); Kumho Tire that it determined that a noncompliance tires were manufactured between June Co., Inc., 71 FR 6129 (February 6, 2006); existed. 12, 2009 (Serial Week 24) and August and Michelin North America, Inc., 74 FR In consideration of the foregoing, 20, 2009 (Serial Week 34). A total of 10805 (March 12, 2009). NHTSA has decided that Tireco has met 6,170 these noncompliant tires have Furthermore, Tireco points out three its burden of persuasion that the subject been recovered from its distributors and other substantive factors that support its FMVSS No. 139 labeling dealers and are currently in Tireco’s petition: noncompliances are inconsequential to possession for relabeling. The remaining • The subject tires meet or exceed all of motor vehicle safety. Accordingly, tires (approximately 3,370) are still in the substantive performance requirements of Tireco’s petition is granted and the the hands of Tireco’s customers. FMVSS No. 139. petitioner is exempted from the Tireco explains that the • There have been no complaints regarding obligation of providing notification of, noncompliance is that the markings on this issue from vehicle owners (the incorrect and a remedy for, the subject the non-compliant tires specifying the markings were brought to Tireco’s attention noncompliance under 49 U.S.C. 30118 by one of its distributors). and 30120. maximum inflation pressure in kPa and • in psi are reversed from the order The manufacturer of these tires, Shandong Linglong Tyre Co., Ltd., has Authority: (49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and required by paragraph S5.5.5(c). The corrected the molds at its factory, so that this 501.8) Company said that the maximum noncompliance will not be repeated in inflation pressure should have been current or future production. Issued on: October 20, 2011. marked as ‘‘300 kPa (44 psi)’’ but were Supported by all of the above stated Claude H. Harris, ‘‘inadvertently’’ marked on both reasons, Tireco believes that the Acting Associate Administrator for sidewalls with a maximum inflation described noncompliance of its tires to Enforcement. pressure of ‘‘44 kPa (300 psi).’’ Tireco meet the requirements of FMVSS No. [FR Doc. 2011–27651 Filed 10–25–11; 8:45 am] reported that this noncompliance was 139 is inconsequential to motor vehicle BILLING CODE 4910–59–P brought to their attention on August 19, safety, and that its petition, to exempt 2009 by one of the company’s it from providing recall notification of distributor customers. DEPARTMENT OF TRANSPORTATION Tireco argues that no vehicle operator noncompliance as required by 49 U.S.C. would ever inflate the tires to the 30118 and remedying the recall Surface Transportation Board incorrect pressures that appear on the noncompliance as required by 49 U.S.C. [Docket No. FD 35544] sidewalls of the subject tires, and 30120, should be granted. NHTSA Decision: The agency agrees specifically stated that ‘‘it would be with Tireco that the noncompliance is DesertXpress Enterprises, LLC and virtually impossible to do so.’’ Tireco inconsequential to motor vehicle safety. DesertXpress HSR Corporation— supports this conclusion with the The agency believes that the true Construction and Operation following statements: measure of inconsequentiality to motor Exemption—in Victorville, CA and Las • With respect to the erroneous psi vehicle safety in this case is that there Vegas, NV marking, no commercially available air is no effect of the noncompliances on AGENCY: Surface Transportation Board, compressor used in tire retail stores, at gas the operational safety of vehicles on stations, or for home use has the capacity to DOT. inflate tires to 300 psi, and consumers would which these tires are mounted. In the ACTION: Notice of construction and immediately be aware from their past agency’s judgment, the incorrect operation exemption. experience that a pressure of 300 psi could labeling of the tire inflation information not be correct. will not have any consequential effect SUMMARY: The Board grants an • With respect to the erroneous kPa on motor vehicle safety because it is exemption under 49 U.S.C. 10502 from marking, it [is] extremely unlikely that a extremely unlikely that the consumer the prior approval requirements of 49 consumer would attempt to inflate the tires will inflate the tires to an incorrect U.S.C. 10901 for DesertXpress to 44 kPa, since (1) Drivers in the United pressure. Enterprises, LLC and its subsidiary States almost always utilize the psi parameter The safety of people working in the (DXE) to build and operate a 190-mile rather than kPa value when they inflate their tire retread, repair, and recycling rail line between Victorville, Cal. and tires; and (2) any driver who used the kPa parameter would know that the 44 kPa value industries was also to be considered. As Las Vegas, Nev., in order to provide was not correct, since all passenger car tires with consumers, it is extremely unlikely high-speed passenger rail service. This have a maximum inflation pressure of at least that this noncompliance will cause exemption is subject to environmental 240 kPa. Moreover, even if a consumer were anyone working in those businesses to mitigation conditions and the condition to attempt to inflate the tires to 44 kPa incorrectly inflate these tires in a that DXE build the route designated as (which is equivalent to approximately 7 psi), manner that will cause a measureable environmentally preferable. he or she would immediately be aware that effect on motor vehicle safety. the tires were drastically underinflated, and NHTSA notes that the statutory 1 Tireco’s petition, which was filed under 49 CFR would not be in a drivable state. provisions (49 U.S.C. 30118(d) and part 556, requests an agency decision to exempt Tireco as a manufacturer from the notification and Tireco concludes that the subject non- 30120(h)) that permit manufacturers to recall responsibilities of 49 CFR part 573 for 3, 370 compliance ‘‘cannot result in the tires file petitions for a determination of of the affected tires. However, a decision on this being overloaded, or any other adverse inconsequentiality allow NHTSA to petition cannot relieve distributors and dealers of safety consequence to the tires or to the exempt manufacturers only from the the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into vehicles on which they are mounted.’’ duties found in sections 30118 and interstate commerce of the noncompliant tires Additionally, Tireco cites three cases 30120, respectively, to notify owners, under their control after Tireco notified them that which it believes support its conclusion purchasers, and dealers of a defect or the subject noncompliance existed.

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DATES: The exemption will be effective Title: Employer’s Annual Railroad Abstract: IRS uses Form 990–BL to on November 25, 2011; petitions to Retirement Tax Return. monitor activities of black lung benefit reopen must be filed by November 15, Forms: CT–1, CT–1X. trusts, and to collect excise taxes on 2011. Abstract: Railroad employers are these trusts and certain related persons ADDRESSES: An original and 10 copies of required to file an annual return to if they engage in proscribed activities. all pleadings, referring to Docket No. FD report employer and employee Railroad The tax is figured on Schedule A and 35544, must be filed with the Surface Retirement Tax Act (RRTA). Form attached to Form 990–BL. Form 6069 is Transportation Board, 395 E Street, SW., CT–1 is used for this purpose. IRS uses used by coal mine operators to figure Washington, DC 20423–0001. In the information to insure that the the maximum deduction to a black lung addition, one copy of all pleadings must employer has paid the correct tax. benefit trust. If excess contributions are be served on petitioner’s representative: Respondents: Private Sector: made, IRS uses the form to figure and Linda J. Morgan, Nossaman LLP, 1666 K Businesses or other for-profits. collect the tax on excess contributions. Street, NW., Suite 500, Washington, DC Estimated Total Burden Hours: Respondents: Private Sector: 20006. 39,455. Businesses or other for-profits. Copies of filings will be available for OMB Number: 1545–0003. Estimated Total Burden Hours: 563. viewing at the Board’s Web site. Type of Review: Extension without OMB Number: 1545–0058. FOR FURTHER INFORMATION CONTACT: change of a currently approved Type of Review: Extension without Joseph H. Dettmar at 202–245–0395. collection. change of a currently approved Assistance for the hearing impaired is Title: Application for Employer collection. available through the Federal Identification Number; Solicitud de Title: Application for Recognition of Information Relay Service (FIRS) at 1– Numero de Identificacion Patronal Exemption Under Section 521 of the 800–877–8339. (EIN). Internal Revenue Code. Forms: SS–4, SS–4–PR. Form: 1028. SUPPLEMENTARY INFORMATION: Abstract: Taxpayers are required to Abstract: Farmers’ cooperatives must Additional information is contained in have an identification number for use file Form 1028 to apply for exemption the Board’s decision, which is available on any return, statement, or other from Federal income tax as being on our Web site at: ‘‘http:// document must prepare and file Form organizations described in IRC section www.stb.dot.gov’’. SS–4 or Form SS–4PR (Puerto Rico 521. The information on Form 1028 Decided: October 20, 2011. only) to obtain a number. The provides the basis for determining By the Board, Chairman Elliott, Vice information is used by the IRS and the whether the applicants are exempt. Chairman Begeman, and Commissioner SSA in tax administration and by the Respondents: Private Sector: Mulvey. Bureau of the Census for business Businesses or other for-profits, Farms. Jeffrey Herzig, statistics. Estimated Total Burden Hours: 2,545. Clearance Clerk. Respondents: Private Sector: OMB Number: 1545–0152. [FR Doc. 2011–27679 Filed 10–25–11; 8:45 am] Businesses or other for-profits. Type of Review: Extension without Estimated Total Burden Hours: BILLING CODE 4915–01–P change of a currently approved 15,941,913. collection. OMB Number: 1545–0024. Title: Application for Change in DEPARTMENT OF THE TREASURY Type of Review: Revision of a Accounting Method. currently approved collection. Form: 3115. Submission for OMB Review; Title: Claim for Refund and Request Abstract: Form 3115 is used by Comment Request for Abatement. taxpayers who wish to change their Form: 843. method of computing their taxable October 20, 2011. Abstract: IRC section 6402, 6404, and income. The form is used by the IRS to The Department of the Treasury will sections 301.6404–2, and 301.6404–3 of determine if electing taxpayers have met submit the following public information the regulations, allow for refunds of the requirements and are able to change collection requirements to OMB for taxes (except income taxes) or refund, to the method requested. review and clearance under the abatement, or credit of interest, Respondents: Private Sector: Paperwork Reduction Act of 1995, penalties, and additions to tax in the Businesses or other for-profits. Public Law 104–13 on or after the date event of errors or certain action by the Estimated Total Burden Hours: of publication of this notice. A copy of IRS. Form 843 is used by taxpayers to 929,066. the submissions may be obtained by claim these refunds, credits, or OMB Number: 1545–0216. calling the Treasury Bureau Clearance abatements. Type of Review: Extension without Officer listed. Comments regarding Respondents: Individuals and change of a currently approved these information collections should be Households. collection. addressed to the OMB reviewer listed Estimated Total Burden Hours: Title: International Boycott Report. and to the Treasury PRA Clearance 875,295. Form: 5713 and Schedules A, B, and Officer, Department of the Treasury, OMB Number: 1545–0049. C to Form 5713. 1750 Pennsylvania Avenue, NW., Suite Type of Review: Extension without Abstract: Form 5713 and related 11010, Washington, DC 20220. change of a currently approved Schedules A, B, and C are used by any DATES: Written comments should be collection. entity that has operations in a received on or before November 25, Title: Form 990–BL, Information and ‘‘boycotting’’ country. If that entity 2011 to be assured consideration. Initial Excise Tax Return for Black Lung cooperates with or participates in an Benefit Trusts and Certain Related international boycott it loses a portion Internal Revenue Service (IRS) Persons; Form 6069, Return of Excise of the foreign tax credit, or deferral of OMB Number: 1545–0001. Tax on Excess Contributions to BL FSC and IC–DISC benefits. The IRS uses Type of Review: Revision of a Trust. Form 5713 to determine if any of the currently approved collection. Forms: 990–BL, 6069. above benefits should be lost. The

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information is also used as the basis for However, compensation may be exempt maintain records to determine whether a report to the Congress. from withholding because of a U.S. tax a qualifying designation has been made. Respondents: Private Sector: treaty or personal exemption amount. The affected public are prize and award Businesses or other for-profits. Form 8233 is used to request exemption recipients who seek to exclude the cost Estimated Total Burden Hours: from withholding. of a qualifying prize or award. 69,495. Respondents: Individuals and Respondents: Individuals and OMB Number: 1545–0284. Households. Households. Type of Review: Extension without Estimated Total Burden Hours: Estimated Total Burden Hours: 1,275. change of a currently approved 1,320,000. OMB Number: 1545–1139. collection. OMB Number: 1545–0879. Type of Review: Extension without Title: Application for Determination Type of Review: Extension without change of a currently approved of Employee Stock Ownership Plan. change of a currently approved collection. Form: 5309. collection. Title: PS–264–82 (Final) Adjustments Abstract: Form 5309 is used in Title: IA–195–78 (Final) Certain to Basis of Stock and Indebtedness to conjunction with Form 5300 or Form Returned Magazines, Paperbacks or Shareholders of S Corporations and 5303 when applying for a determination Records. Treatment of Distributions by S letter as to a deferred compensation Abstract: The regulations provide Corporations to Shareholders; REG– plan’s qualification status under section rules relating to an exclusion from gross 144859–04—Section 1367 Regard. 409 or 4975(e)(7) of the Internal income for certain returned Abstract: The regulations provide the Revenue Code. The information is used merchandise. The regulations provide procedures and the statements to be to determine whether the plan qualifies. that in addition to physical return of the filed by S corporations for making the Respondents: Private Sector: merchandise, a written statement listing election provided under section 1368, Businesses or other for-profits. certain information may constitute and by shareholders who choose to Estimated Total Burden Hours: evidence of the return. Taxpayers who reorder items that decrease their basis. 26,975. receive physical evidence of the return Statements required to be filled will be OMB Number: 1545–0723. may, in lieu of retaining physical used to verify that taxpayers are Type of Review: Extension without evidence, retain documentary evidence complying with the requirements change of a currently approved of the return. Taxpayers in the trade or imposed by Congress. collection. business of selling magazines, Respondents: Private Sector: Title: T.D. 8043—Manufacturers paperbacks, or records, who elect to use Businesses or other for-profits. Excise Taxes and Sporting Goods and a certain method of accounting, are Estimated Total Burden Hours: 450. Firearms and Other Administrative affected. OMB Number: 1545–1269. Provisions of Special Application to Respondents: Private Sector: Type of Review: Extension without Manufacturers and Retailers Excise Businesses or other for-profits. change of a currently approved Taxes. Estimated Total Burden Hours: 8,125. collection. Abstract: This document contains OMB Number: 1545–0922. Title: T.D. 8461—Nuclear final regulations which revise and Type of Review: Extension without Decommissioning Fund Qualification update the regulations on manufacturers change of a currently approved Requirements. excise taxes on sporting goods and collection. Abstract: This document contains firearms and other administrative Title: Form 8329, Lender’s final regulations relating to the provisions especially applicable to Information Return for Mortgage Credit qualification requirements of a nuclear manufacturers and retailers excise taxes. Certificates (MCCs); Form 8330, Issuer’s decommissioning fund. Pursuant to These amendments revise and update Quarterly Information Return for former section 468A(e)(4)(C) of the Part 48 to achieve greater clarity and Mortgage Credit Certificates (MCCs). Internal Revenue Code, current conform the regulations to numerous Forms: 8329, 8330. regulations require that nuclear amendments to the Internal Revenue Abstract: Form 8329 is used by decommissioning funds invest directly Code of 1954 made after 1964. These lending institutions and Form 8330 is in permissible assets and permitted two regulations provide necessary guidance used by state and local governments to or more such funds to combine assets to the public for compliance with the report on mortgage credit certificates for investment purposes. The law. (MCCs) authorized under IRC Section Comprehensive National Energy Policy Respondents: Private Sector: 25. IRS matches the information Act of 1992 repealed the investment Businesses or other for-profits. supplied by lenders and issuers to restriction contained in section Estimated Total Burden Hours: ensure that the credit is computed 468A(e)(4)(C). These final regulations 475,000. properly. amend the existing regulations to reflect OMB Number: 1545–0795. Respondents: Private Sector: the statutory change. Type of Review: Extension without Businesses or other for-profits. Respondents: Private Sector: change of a currently approved Estimated Total Burden Hours: Businesses or other for-profits. collection. 73,720. Estimated Total Burden Hours: 150. Title: Exemption From Withholding OMB Number: 1545–1100. OMB Number: 1545–1375. on Compensation for Independent (and Type of Review: Extension without Type of Review: Extension without Certain Dependent) Personal Services of change of a currently approved change of a currently approved a Nonresident Alien Individual. collection. collection. Form: 8233. Title: REG–209106–89 (NPRM) Title: T.D. 8537—Carryover of Passive Abstract: Compensation paid to a Changes With Respect to Prizes and Activity Losses and Credits and At Risk nonresident alien (NRA) individual for Awards and Employee Achievement Losses to Bankruptcy Estates of independent personal services (self- Awards. Individuals. employment) is generally subject to Abstract: This regulation requires Abstract: This document contains 30% withholding or graduated rates. recipients of prizes and awards to final regulations relating to the

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application of carryover of passive completely terminated all of their U.S. requirements for such trusts. The final activity losses and credits and at risk trade or business within the meaning of regulations also provide that the losses to the bankruptcy estates of Temporary Regulations section 1.884– governing instruments of such trusts individuals. The final regulations affect 2T(a) during the tax year or (b) must prohibit the sale of a residence individual taxpayers who file transferred their U.S. assets to a held in the trust to the grantor of the bankruptcy petitions under chapter 7 or domestic corporation in a transaction trust, the grantor’s spouse, or an entity chapter 11 of title 11 of the United described in Code section 381(a), if the controlled by the grantor or the grantor’s States Code and have passive activity foreign corporation was engaged in a spouse. losses and credits under section 469 or U.S. trade or business at that time. Respondents: Individuals and losses under section 465. Respondents: Private Sector: Households. Respondents: Individuals and Businesses or other for-profits. Estimated Total Burden Hours: 625. Households. Estimated Total Burden Hours: OMB Number: 1545–1486. Estimated Total Burden Hours: 100. 22,500. Type of Review: Extension without OMB Number: 1545–1381. OMB Number: 1545–1409. change of a currently approved Type of Review: Extension without Type of Review: Extension without collection. change of a currently approved change of a currently approved Title T.D. 8697—Simplification of collection. collection. Entity Classification Rules. Title: T.D. 8546—Limitations on Title: Election to Use Different Abstract: This regulation provides Corporate Net Operating Loss. Annualization Periods for Corporate rules to allow certain unincorporated Abstract: This document contains Estimated Tax. business organizations to elect to be final income tax regulations providing Form: 8842. treated as corporations or partnerships rules for allocating net operating loss or Abstract: Form 8842 is used by for federal tax purposes. The election is taxable income, and net capital loss or corporations (including S corporations), made by filing Form 8832, Entity gain, within the taxable year in which tax-exempt organizations subject to the Classification Election. The information a loss corporation has an ownership unrelated business income tax, and collected on the election will be used to change under section 382 of the Internal private foundations to annually elect the verify the classification of electing Revenue Code of 1986. These use of an annualization period in organizations. regulations permit the loss corporation section 6655(e)(2)(c)(i) or (ii) for Respondents: Private Sector: to elect to allocate these amounts purpose of figuring the corporation’s Businesses or other for-profits. between the period ending on the estimated tax payments under the Estimated Total Burden Hours: 1. change date and the period beginning annualized income installment method. OMB Number: 1545–1491. on the day after the change date as if its Respondents: Private Sector: Type of Review: Extension without books were closed on the change date. Businesses or other for-profits. change of a currently approved Respondents: Private Sector: Estimated Total Burden Hours: 4,335. collection. Businesses or other for-profits. OMB Number: 1545–1435. Title T.D. 8746—Amortizable Bond Estimated Total Burden Hours: 200. Type of Review: Extension without Premium. OMB Number: 1545–1393. change of a currently approved Abstract: This document contains Type of Review: Extension without collection. final regulations relating to the federal change of a currently approved Title: TD 8706—Electronic Filing of income tax treatment of bond premium collection. Form W–4. and bond issuance premium. The Title: EE–14–81 (NPRM) Deductions Abstract: This document contains regulations reflect changes to the law and Reductions in Earnings and Profits final regulations relating to Form W–4, made by the Tax Reform Act of 1986 (or Accumulated Profits) With Respect Employee’s Withholding Allowance and the Technical and Miscellaneous to Certain Foreign Deferred Certificate. The final regulations Revenue Act of 1988. The regulations Compensation Plans Maintained by authorize employers to establish will provide needed guidance to holders Certain Foreign Corporations or by electronic systems for use by employees and issuers of debt instruments. Foreign Branches of Domestic in filing their Forms W–4. The Respondents: Private Sector: Corporations. regulations provide employers and Businesses or other for-profits. Abstract: The regulation provides employees with guidance necessary to Estimated Total Burden Hours: 7,500. guidance regarding the limitations on comply with the law. The regulations OMB Number: 1545–1493. deductions and adjustments to earnings affect employers that establish Type of Review: Extension without and profits (or accumulated profits) for electronic systems and their employees. change of a currently approved certain foreign deferred compensation Respondents: Private Sector: collection. plans. Respondents will be Businesses or other for-profits. Title T.D. 8684—Treatment of Gain multinational corporations. Estimated Total Burden Hours: From the Disposition of Interest in Respondents: Private Sector: 40,000. Certain Natural Resource Recapture Businesses or other for-profits. OMB Number: 1545–1485. Property by S Corporations and Their Estimated Total Burden Hours: 200. Type of Review: Extension without Shareholders. OMB Number: 1545–1407. change of a currently approved Abstract: This document contains Type of Review: Extension without collection. final regulations relating to the tax change of a currently approved Title T.D. 8743—Sale of Residence treatment by S Corporations and their collection. From Qualified Personal Residence shareholders of gain from the Title: Consent To Extend the Time to Trust. disposition by an S corporation (and a Assess the Branch Profits Tax Under Abstract: This document contains corporation that was formerly an S Regulations Sections 1.884–2(a) and (c). final regulations permitting the corporation) of certain natural resource Form: 8848. reformation of a personal residence trust recapture property (section 1254 Abstract: Form 8848 is used by or a qualified personal residence trust in property after enactment of the Tax foreign corporations that have (a) order to comply with the applicable Reform Act of 1986 and oil, gas, or

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geothermal property before enactment of OMB Number: 1545–1633. Estimated Total Burden Hours: the Tax Reform Act of 1986), and also Type of Review: Extension without 12,500. rules relating to the disposition of stock change of a currently approved OMB Number: 1545–1646. in an S corporation that holds certain collection. Type of Review: Extension without natural resource recapture property. Title: T.D. 8802—Certain Asset change of a currently approved Changes to the applicable tax law were Transfers to a Tax-Exempt Entity. collection. made by the Tax Reform Act of 1986, Abstract: This document contains Title: T.D. 8851—Return Requirement and the Subchapter S Revision Act of final regulations that implement for United States Persons who acquire 1982. The regulations provide the provisions of the Tax Reform Act of or dispose of an interest in a foreign public with guidance in complying with 1986 and the Technical and partnership, or whose proportional the changed tax laws. Miscellaneous Revenue Act of 1988. interest in a foreign partnership Respondents: Private Sector: The final regulations generally affect a changes. Businesses or other for-profits. taxable corporation that transfers all or Abstract: This document contains Estimated Total Burden Hours: 1,000. substantially all of its assets to a tax- final regulations under section 6046A of OMB Number: 1545–1496. exempt entity or converts from a taxable the Internal Revenue Code relating to Type of Review: Extension without corporation to a tax-exempt entity in a the requirement that United States change of a currently approved transaction other than a liquidation, and persons, in certain circumstances, file a collection. generally require the taxable corporation return if they acquire or dispose of an Title: REG–209673–93 Mark to Market to recognize gain or loss as if it had sold interest in a foreign partnership, or if for Dealers in Securities (TD 8700 the assets transferred at fair market their proportional interest in a foreign (final)). value. partnership changes. The burden of Abstract: Under section 1.475(b)–4, Respondents: Private Sector: Not-for- complying with the collection of the information required to be recorded profit institutions. information is reported on Form 8865. is required by the IRS to determine Estimated Total Burden Hours: 125. Respondents: Private Sector: whether exemption from mark-to- OMB Number: 1545–1641. Businesses or other for-profits. market treatment is properly claimed, Type of Review: Extension without Estimated Total Burden Hours: 1. and will be used to make that change of a currently approved OMB Number: 1545–1649. determination upon audit of taxpayer’s collection. books and records. Also, under section Title: Rev. Proc. 99–17—Mark to Type of Review: Extension without 1.475(c)–1(a)(3)(iii), the information is Market Election for Commodities change of a currently approved necessary for the Service to determine Dealers and Securities and Commodities collection. whether a consolidated group has Traders. Title: Rev. Proc. 99–21—Disability elected to disregard inter-member Abstract: The revenue procedure Suspension. transactions in determining a member’s prescribes the time and manner for Abstract: The information is needed status as a dealer in securities. dealers in commodities and traders in to establish a claim that a taxpayer was Respondents: Private Sector: securities or commodities to elect to use financially disabled for purposes of Businesses or other for-profits. the mark-to-market method of section 6511(h) of the Internal Revenue Estimated Total Burden Hours: 2,950. accounting under Sec. 475(e) or (f) of Code (which was added by section 3203 OMB Number: 1545–1581. the Internal Revenue Code. The of the Internal Revenue Service Type of Review: Extension without collections of information in sections 5 Restructuring and Reform Act of 1998). change of a currently approved and 6 of this revenue procedure are Under section 6511(h), the statute of collection. required by the IRS in order to facilitate limitations on claims for credit or Title: T.D. 8812—Continuation monitoring taxpayers changing refund is suspended for any period of an Coverage Requirements Applicable to accounting methods resulting from individual taxpayer’s life during which Group Health Plans. making the elections under Sec. 475(e) the taxpayer is unable to manage his or Abstract: The Consolidated Omnibus or (f). her financial affairs because of a Budget Reconciliation Act of 1985 Respondents: Private Sector: medically determinable mental or (COBRA) added health care Businesses or other for-profits. physical impairment, if the impairment continuation requirements that apply to Estimated Total Burden Hours: 500. can be expected to result in death, or group health plans. Coverage required to OMB Number: 1545–1643. has lasted (or can be expected to last) for be provided under those requirements is Type of Review: Extension without a continuous period of not less than 12 referred to as COBRA continuation change of a currently approved months. Section 6511(h)(2)(A) requires coverage. This document contains final collection. that proof of the taxpayer’s financial regulations based on these two sets of Title: REG–209484–87 (TD 8814 final) disability be furnished to the Internal proposed regulations. The final Federal Insurance Contributions Act Revenue Service. regulations also reflect statutory (FICA) Taxation of Amounts Under Respondents: Individuals and amendments to the COBRA Employee Benefit Plans. Households. continuation coverage requirements Abstract: This regulation provides Estimated Total Burden Hours: since COBRA was enacted. The guidance as to when amounts deferred 24,100. regulations will generally affect under or paid from a nonqualified OMB Number: 1545–1654. sponsors of and participants in group deferred compensation plan are taken Type of Review: Extension without health plans and they provide plan into account as wages for purposes of change of a currently approved sponsors and plan administrators with the employment taxes imposed by the collection. guidance necessary to comply with the Federal Insurance Contributions Act Title: T.D. 8902—Capital Gains, law. (FICA). Section 31.3121(v)(2)–1(a)(2) Partnership and Subchapter S, and Respondents: Private Sector: requires that the material terms of a plan Trust Provisions. Businesses or other for-profits. be set forth in writing. Abstract: This document contains Estimated Total Burden Hours: Respondents: Private Sector: final regulations relating to sales or 404,640. Businesses or other for-profits. exchanges of interests in partnerships, S

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corporations, and trusts. The regulations Type of Review: Extension without qualified equity investment entitling the interpret the look-through provisions of change of a currently approved taxpayer to claim the new markets tax section 1(h), added by section 311 of the collection. credits; and (2) each holder of a Taxpayer Relief Act of 1997 and Title: Amended Quarterly Federal qualified equity investment, including amended by sections 5001 and 6005(d) Excise Tax Return. all prior holders of that investment that of the Internal Revenue Service Form: 720X. a recapture event has occurred. CDE’s Restructuring and Reform Act of 1998, Abstract: Form 720X is used to make must comply with such reporting and explain the rules relating to the adjustments to correct errors on form requirements to the Secretary as the division of the holding period of a 720 filed for previous quarters. It can be Secretary may prescribe. partnership interest. The regulations filed by itself or it can be attached to Respondents: Private Sector: affect partnerships, partners, S any subsequent Form 720. Code section Businesses or other for-profits. corporations, S corporation 6416(d) allows taxpayers to take a credit Estimated Total Burden Hours: 210. shareholders, trusts, and trust on a subsequent return rather than filing OMB Number: 1545–1767. beneficiaries. a refund claim. Type of Review: Extension without Respondents: Private Sector: Respondents: Private Sector: change of a currently approved Businesses or other for-profits. Businesses or other for-profits. collection. Estimated Total Burden Hours: 1. Estimated Total Burden Hours: Title: T.D. 8976—Dollar-Value LIFO OMB Number: 1545–1655 152,460. Regulations; Inventory Price Index Type of Review: Extension without OMB Number: 1545–1762. Computation Method. change of a currently approved Type of Review: Extension without Abstract: This document contains collection. change of a currently approved final regulations under section 472 of Title: T.D. 8861—Private Foundation collection. the Internal Revenue Code that relate to Disclosure Rules. Title: Direct Deposit of Corporate Tax accounting for inventories under the Abstract: This document contains Refund. last-in, first-out (LIFO) method. The final regulations that amend the Form: 8050. final regulations provide guidance regulations relating to the public Abstract: File Form 8050 to request regarding methods of valuing dollar- disclosure requirements described in that the IRS deposit a corporate income value LIFO pools and affect persons section 6104(d) of the Internal Revenue tax refund (including a refund of $1 who elect to use the dollar-value LIFO Code. These final regulations implement million or more) directly into an and inventory price index computation changes made by the Tax and Trade account at any U.S. bank or other (IPIC) methods or who receive dollar- Relief Extension Act of 1998, which financial institution (such as a mutual value LIFO inventories in certain extended to private foundations the fund or brokerage firm) that accepts nonrecognition transactions. same rules regarding public disclosure direct deposits. Respondents: Private Sector: Respondents: Private Sector: of annual information returns that apply Businesses or other for-profits. Businesses or other for-profits. to other tax-exempt organizations. These Estimated Total Burden Hours: 1. final regulations provide guidance for Estimated Total Burden Hours: OMB Number: 1545–1768. private foundations required to make 348,600. Type of Review: Extension without copies of applications for recognition of OMB Number: 1545–1763. change of a currently approved exemption and annual information Type of Review: Extension without collection. returns available for public inspection change of a currently approved Title: Revenue Procedure 2003–84, and to comply with requests for copies collection. Optional Election to Make Monthly Sec. of those documents. Title: Direct Deposit of Refund of $1 706 Allocations. Respondents: Private Sector: Not-for- Million or more. Abstract: This revenue procedure profit institutions. Form: 8302. allows certain partnerships with money Abstract: This form is used to request market fund partners to make an Estimated Total Burden Hours: a deposit of a tax refund of $1 million optional election to close the 32,596. or more directly into an account at any partnership’s books on a monthly basis OMB Number: 1545–1658. U.S. bank or other financial institution. with respect to the money market fund Type of Review: Extension without Respondents: Private Sector: partners. change of a currently approved Businesses or other for-profits. Respondents: Private Sector: collection. Estimated Total Burden Hours: 1,088. Businesses or other for-profits. Title: T.D. 8940—Purchase Price OMB Number: 1545–1765. Estimated Total Burden Hours: 500. Allocations in Deemed Actual Asset Type of Review: Extension without OMB Number: 1545–1773. Acquisitions. change of a currently approved Type of Review: Extension without Abstract: This document contains collection. change of a currently approved final regulations relating to deemed and Title: T.D. 9171—New Markets Tax collection. actual asset acquisitions under sections Credit. Title: Revenue Procedure 2002–23, 338 and 1060. The final regulations Abstract: The regulations provide Taxation of Canadian Retirement Plans affect sellers and buyers of corporate guidance for taxpayers claiming the new Under U.S.-Canada Income Tax Treaty. stock that are eligible to elect to treat the markets tax credit under section 45D of Abstract: This Revenue Procedure transaction as a deemed asset the Internal Revenue Code. The provides guidance for the application by acquisition. The final regulations also reporting requirements in the U.S. citizens and residents of the U.S.- affect sellers and buyers of assets that regulations require a qualified Canada Income Tax Treaty, as amended constitute a trade or business. community development entity (CDE) to by the 1995 protocol, in order to defer Respondents: Private Sector: provide written notice to: (1) Any U.S. Income taxes on income accrued in Businesses or other for-profits. taxpayer who acquires an equity certain Canadian retirement plans. Estimated Total Burden Hours: 25. investment in the CDE at its original Respondents: Individuals and OMB Number: 1545–1759. issue that the equity investment is a Households.

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Estimated Total Burden Hours: compute their interest accruals and any additional space for capturing 10,000. imputed transfers for tax purposes. additional information. OMB Number: 1545–1776. Respondents: Private Sector: Respondents: Individuals and Type of Review: Extension without Businesses or other for-profits. Households. change of a currently approved Estimated Total Burden Hours: Estimated Total Burden Hours: 6,203. collection. 32,500. OMB Number: 1545–1924. Title: U.S. Income Tax Return for OMB Number: 1545–1794. Type of Review: Extension without Electing Alaska Native Settlement Type of Review: Extension without change of a currently approved Trusts. change of a currently approved collection. Form: 1041–N. collection. Title: Biodiesel Fuels Credit. Abstract: An Alaska Native Title: T.D. 9088—Compensatory Stock Form: 12114. Settlement Trust (ANST) may elect Options Under Section 482. Abstract: IRC section 40A provides a under section 646 to have the special Abstract: This document contains credit for biodiesel or qualified income tax treatment of that section final regulations that provide guidance biodiesel mixtures. IRC section 38(b)(17) apply to the trust and its beneficiaries. regarding the application of the rules of allows a nonrefundable income tax This one-time election is made by filing section 482 governing qualified cost credit for businesses that sell or use Form 1041–N and the form is used by sharing arrangements. These regulations biodiesel. Form 8864 is used to figure the ANST to report its income, etc., and provide guidance regarding the the credits. Respondents: Private Sector: to compute and pay any income tax. treatment of stock-based compensation for purposes of the rules governing Businesses or other for-profits. Form 1041–N is also used for the special Estimated Total Burden Hours: 310. information reporting requirements that qualified cost sharing arrangements and OMB Number: 1545–1926. apply to ANST’s. for purposes of the comparability factors Type of Review: Extension without Respondents: Private Sector: to be considered under the comparable change of a currently approved Businesses or other for-profits. profits method. collection. Estimated Total Burden Hours: 680. Respondents: Private Sector: Businesses or other for-profits. Title: Notice 2005–10, Domestic OMB Number: 1545–1783. Reinvestment Plans and Other Guidance Type of Review: Extension without Estimated Total Burden Hours: 2,000. OMB Number: 1545–1919. under Section 965. change of a currently approved Abstract: This document provides Type of Review: Extension without collection. guidance under new section 965 change of a currently approved Title: TD 8989—Guidance Necessary enacted by the American Jobs Creation collection. to Facilitate Electronic Tax Act of 2004 (Pub. L.108–357). In Administration. Title: Prior Government Service Information. general, and subject to limitations and Abstract: The regulations provide a conditions, section 965(a) provides that regulatory statement of IRS authority to Form: 12854. Abstract: This product is used to a corporation that is a U.S. shareholder prescribe what return information or identify applicants who have had prior of a controlled foreign corporation (CFC) documentation must be filed with a government services in order to request may elect, for one taxable year, an 85 return, statement or other document the OPF from federal records and to percent dividends received deduction required to be made under any identify possible pay setting issues. (DRD) with respect to certain cash provision of the internal revenue laws Respondents: Individuals and dividends it receives from its CFC’s. or regulations. In addition, the Households. Section 965(f) provides that taxpayers regulations eliminate regulatory Estimated Total Burden Hours: 6,230. may elect the application of section 965 impediments to electronic filing of Form OMB Number: 1545–1920. for either the taxpayer’s last taxable year 1040. Type of Review: Extension without which begins before October 22, 2004, Respondents: Individuals and change of a currently approved or the taxpayer’s first taxable year to Households. collection. which the taxpayer intends to elect Estimated Total Burden Hours: 1. Title: Notice Regarding Repayment of section 965 to apply prior to the OMB Number: 1545–1792. a Buyout Prior to Re-employment with issuance of Form 8895, the election Type of Review: Extension without the Federal Government. must be made on a statement that is change of a currently approved Form: 12311. attached to its timely-filed tax return collection. Abstract: This form outlines the (including extensions) for such taxable Title: REG–164754–01 (Final) Split- regulations requiring those employees year. In addition, because the taxpayer Dollar Life Insurance Arrangements. being rehired by the government and must establish to the satisfaction of the Abstract: The proposed regulations received a buyout from their previous Commissioner that it has satisfied the provide guidance for loans made job to make repayment of the buyout conditions to take the DRD, the taxpayer pursuant to a split-dollar life insurance before they will be hired again. is required under this guidance to report arrangement. To obtain a particular Respondents: Individuals and specified information and provide treatment under the regulations for Households. specified documentation. certain split- dollar loans, the parties to Estimated Total Burden Hours: 2,757. Respondents: Private Sector: the loan must make a written OMB Number: 1545–1921. Businesses or other for-profits. representation, which must be kept as Type of Review: Extension without Estimated Total Burden Hours: part of their books and records and a change of a currently approved 3,750,000. copy filed with their federal income tax collection. OMB Number: 1545–1927. returns. In addition, if a split-dollar loan Title: Continuation Sheet for Item #16 Type of Review: Extension without provides for contingent payments, the (Additional Information) OF–306, change of a currently approved lender must produce a projected Declaration for Federal Employment. collection. payment schedule for the loan and give Form: 12114. Title: IRS e-file Electronic Funds the borrower a copy of the schedule. Abstract: Form 12114 is used as a Withdrawal Authorization for Form This schedule is used by parties to continuation to the OF–306 to provide 7004.

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Form: 8878–A. SUMMARY: This is Supplement No. 2 to Questions concerning this Notice may Abstract: Form 8878–A is used by a the Treasury Department Circular 570, be directed to the U.S. Department of corporate officer or agent and an 2011 Revision, published July 1, 2011, the Treasury, Financial Management electronic return originator (ERO) to use at 76 FR 38892. Service, Financial Accounting and a personal identification number (PIN) FOR FURTHER INFORMATION CONTACT: Services Division, Surety Bond Branch, to authorize an electronic funds Surety Bond Branch at (202) 874–6850. 3700 East-West Highway, Room 6F01, withdrawal for a tax payment made Hyattsville, MD 20782. with a request to extend the filing due SUPPLEMENTARY INFORMATION: A Dated: October 7, 2011. date for a corporate income tax return. Certificate of Authority as an acceptable Respondents: Private Sector: surety on Federal bonds is hereby Laura Carrico, Businesses or other for-profits. issued under 31 U.S.C. 9305 to the Director, Financial Accounting and Services Estimated Total Burden Hours: following company: Western National Division. 505,400. Mutual Insurance Company (NA1C # [FR Doc. 2011–27539 Filed 10–25–11; 8:45 am] Bureau Clearance Officer: Yvette 15377). Business Address: P.O. Box BILLING CODE 4810–35–M Lawrence, Internal Revenue Service, 1463, Minneapolis, MN 55440. Phone: 1111 Constitution Avenue, NW., (952) 835–5350. Underwriting Washington, DC 20224; (202) 927–4374. Limitation b/: $24,552,000. Surety DEPARTMENT OF THE TREASURY OMB Reviewer: Shagufta Ahmed, Licenses Cl: IL, IA, MN, NE, ND, OR, Office of Management and Budget, New SD, WI. Incorporated In: Minnesota. Internal Revenue Service Executive Office Building, Room 10235, Federal bond-approving officers Washington, DC 20503; (202) 395–7873. should annotate their reference copies Quarterly Publication of Individuals, Who Have Chosen To Expatriate, as Dawn D. Wolfgang, of the Treasury Circular 570 (‘‘Circular’’), 2011 Revision, to reflect Required by Section 6039G Treasury PRA Clearance Officer. this addition. [FR Doc. 2011–27671 Filed 10–25–11; 8:45 am] AGENCY: Internal Revenue Service (IRS), Certificates of Authority expire on BILLING CODE 4830–01–P Treasury. June 30th each year, unless revoked prior to that date. The Certificates are ACTION: Notice. DEPARTMENT OF THE TREASURY subject to subsequent annual renewal as long as the companies remain qualified SUMMARY: This notice is provided in Fiscal Service (see 31 CFR part 223). A list of qualified accordance with IRC section 6039G, as companies is published annually as of amended, by the Health Insurance Surety Companies Acceptable on July 1st in the Circular, which outlines Portability and Accountability Act Federal Bonds: Western National details as to the underwriting (HIPPA) of 1996. This listing contains Mutual Insurance Company limitations, areas in which companies the name of each individual losing their are licensed to transact surety business, AGENCY: Financial Management Service, United States citizenship (within the Fiscal Service, Department of the and other information. meaning of section 877(a) or 877A) with Treasury. The Circular may be viewed and respect to whom the Secretary received downloaded through the Internet at information during the quarter ending ACTION: Notice. http://www.fms.treas.gov/c570. September 30, 2011.

Last name First name Middle name/initials

ABRAHAM GABRIELLE TONY ADUSUMILLI PANDURANGA R AGUILAR MARIA L AHMAD IBRAHEEM MUSTAFA AJAMI RAMI MOHAMAD ALEXIOU ANDREW CHRISTOPHER ALIREZA MISHAEL FAHD ALTOE SUSANNE NICOLE AMITTAI DEKEL AMRINE DOUGLAS SCOTT ANDREWS PHILIP NEWTON AOKI HISAE ARP WILLIAM FRED ARYA JAI ARYA ROHINI ASHKENAZY ALEXANDRA INGA ATKINSON EVON ST PATRICK CULLITON AUERBACH MELINA AVERY THOMAS YUL BAER JULIAN JULIUS BAGGETT SUSAN BANKES FLORA JUNE BARBALACO STEPHEN BATES LIAM ROBERT BAXTER CALEB CHRISTOPHER BERG SHANE DAVID BERNARD STEVEN JACQUES BERTSCHI HANSPETER ANDREA BINER ALFRED ALEXANDER P BIRDWELL NATALIE

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Last name First name Middle name/initials

BLANK JASON MARSHALL BLIN JEAN BOEY MARK FREDERICK BONNARD BARBIER CARINE AYMONE BORTHEN JUST CHRISTPHER WESTCOTT BOTNAR RENE M BRIDGES STEPHEN JACK BRONIMANN ANDREA JANE BROWER LAWRENCE EDWARD BRUNNER STEPHAN CONRAD BURKHARDT ROBERT RYAN CALCAGNITI FRANCISCO CARLIN ALEXIS ANNE CASPERS FLORIAN BENJAMIN CHAE BRANDON JAE CHAE JENNIFER ANN CHAMPETIER VINCENT CHAN VIOLA K CHEE GLENN WEN HAN CHEN ANDY PAUL CHEN EUNICE JOY CHEN MAX HAN-LI CHENG HUAYI CHEONG TIMOTHY HSIA WEN CHEUNG SIN TING ALICE CHIANG ANDREW YU-CHING CHIU GEORGIANA KONG SUIT CHO ALEXANDER HAN CHOI SUN YOUNG CHOONG CAROLINE VICTORIA CHOU PATRICK JAMES CHOU TOM CHI-KWAN CHRISTENSON DEBORAH CHRISTENSON STEPHEN V CHUA CHOON MUI CHUA KEVIN WEI QIANG CHUNG JUDY CLUBB BRYCE STEVEN COFFEY ROSALIND M COHEN CLAUDE SOL CONGER RONALD EUGENE CONWAY KATE COTTON JUDITH F CSAPO JOHN FRANK D’AMATO MARCELO DASKALOVIC MONIQUE DAWSON HEIDI KATHRYN DE MORANVILLE CLAUDE V C SELLIERS DE PAIVA JULIA SOUZA DEAN JANET TERESA DEBLESER ALEXANDER DENTON CHRIS EDWARD DEURING ALEXANDER ALBERT DI DONATO ROBERTO DOERHOLT DOROTHE DORRES LOSCH PAULA MICHELLE DREVER RONALD DU YUXIANG DUBE BRENDA MARIE DUBE MICHEL DUGU NANXUN NATHAN DUIMICH RITSUKO EASTON ANDREW EASTON ELIZABETH EGBERTS JAN H ELARDO MARK ALLEN ELKIN SARAH ELLIOTT SUSAN EMERSON CATHERINE E EMERSON DAVID ENDZWEIG ELIZABETH ERB PRISCA REGINA EVESTAFF HATIM SALIM FAKHOURIE SHAHINE ELIZABETH

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Last name First name Middle name/initials

FANG HENRY H L FARSTAD ANNE CHRISTINE FENG DAI FINDANI ROBERT M FISCHER JOAN DORIS FRAZIER TATTAYA FRIES ANNA- CORINNA FUSE TETSUHARU GALBRAITH JOSEPH BENSON GANG DINESH GANN HEIDI CAROL GARCIA TERCIO B GASS VERENA LIPP GHAI CHINTU GIBSON LORRAINE FRANCES GONZALES REX BRUCE GRABER IRENE KLARA GRACIE JAMES S GRACIE KATHERINE J GRANOV ADI GREEN KATHERINE LOUISA GREER BUEFORD D GRIFFITHS DAVID THOMAS GRIMM CHRISTOPH GRIMM KATJA GULINO SAYAN HABIB OK YO HACKETT PAMELA D. J. HALL NATALIE JUDITH HAMI AMIR HAMI HOSSEIN HAN JIAHUAI HANICK SUZIE HANSEN MICHAEL LEIF HANSSON KARL STEFAN HARRIGAN TERRY TOLEDO CARADINE HART MARIANNE DANIELE HARVEY BRUCE E HASSAN ADRIAN HAYDEN RICHARD MICHAEL HEALEY EDWARD JAMES HEALEY SARAH ANGELA HELM EVA HERRMANN MARTINE S HESS CLINTON A HESSER BORIS A HEUBACH JOHANN GABRIEL HEUSS STELLA IRENE GERTRUD HICKERSBERGER JOSEF ADRIAN HILLESLAND SONJA KARIN LYNCH HIRAO HIROKAZU HO JASON HON SUM HO SALENA CHI KIT HOLLENSTEIN PETER HOLLENSTEIN URSULA HONG RICK KWANGBUM HOON ELIZABETH LI-PING HOU HSIEN LIANG HSU MIKE HSU ZE-YI HU KE IN KEUN WOO ISA NOOR LIZA MD JAFFER OMER JAGGI MCCOY ISABELLE MARY JARDINE KATHERINE ALLEN JOHNSON ANTHONY W JOHNSON RICHARD M JOHNSON RUTH JOSEPH CHANG CHO YAM KANEKO TAIZO KANG QIAO KANSEKINE BETTY KAWKABANI JAMES ROBERT

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Last name First name Middle name/initials

KAZMI KRISTINA ZEHRA KIANG LILLIAN SHIN PING KIM CHONG AE KIM JULIA KIM WILLIAM KINGMAN MARCUS KOENIG JENNIFER RENEE KONST SOLVEIG KORZINEK ROBERT JAMES KRAUSE MARTIN WERNER KUSCHILL TIMOTHY JOHN KWAK PAUL LAGIER DIANE LUCE LAL DEEPAK K LANDAU JENNIFER MAY LANDI TOMMASO LANG VICENTE C LANGHAM ELAINE GRACE LAU DOROTHY WAN HANG LAU KIMBERLY SIU YAN KAIULANI LAU LUCY LAUBE WERNER JOHN LAULUND HENRIK LEE HAE WON LEE HAN YOUNG LEE KAI FU LEE SHEN LING LEE YONG YE LEES MARIA ADELAIDA BIBI LEO LIONEL LERCHBAUMER ANDREAS JOSEF LEUENBERGER STEPHAN DAVID LEUNG ANDREA TSE-HING LEUNG SUSAN O LEWIS TODD GRAHAM LI BRYAN CHEE KEUNG LI LYDIA KWAN LIEBMANN BRAD HUNTER LIM LILLAN YUXIAN LIM VIVIAN YUJING LIN CHARLYN LINCKE THOMAS ROBERT LING PHYLLIS T LO ALEXANDER CHUN HIM LOWENHARDT SANNE LUKAC SAVA R LUTHI MAJA CHRISTINA MA YUWEI MAC HALE LAURA JANE MACFARLAND FREDERIK CHARLES MAHON ALEXANDRA ROSE MANINA GEORGE MANSOUR MICHAEL MAOR DROR MAPLE JOHN RANDALL MARINCEK BORIS CHRISTIAN MARSHALL PAUL DUNCAN MATSUNO SATOSHI MC DANIEL CRISTINA ELENA MCCOY RAINER FRANZ MEDEIROS PATRICIA FARIA VASCONCELLOS MEHES ERIKA MEIER WALTER SUSANNE MELVIN STEPHEN JENKINS MEYER BARBARA JEAN MII MITSUKO MII NOBUO MOLKO ALBERT MONAUNI CHRISTIAN KARL MONAUNI CHRISTINE G MONNIER CHARLES EDWARD MONNIER SUSAN HEFFNER MORITZ ERIKA MORITZ GUNNAR H

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Last name First name Middle name/initials

MURPHY MICHAEL N MUSE RODNEY CHADWICK NA EDWARD YOON NADRAG KARIN NADRAG ROLF PETER NARWANI AMIT ARJAN NEWMAN BRIAN MICHAEL NG KEILEM NIEM CHRISTINE CHEN NIETO ANTONIO L NITSCHE MARC ERIC NORSTEBO ASTRID CHRISTINE OKHAI LEYLA JIHAN ONG JASMINE ANGIE OTHON-LEVIN AURA PALMER EDWARD LEWIS PAN ANDY KUO-AN PAN THOMAS PANGBURN STEVEN PAPIN JOHN PHILLIP PARK JAMES PARK KYUNG SOOK PATTY ELAINE FLORENCE PIKE JOE B PIKE KATHRYN ANNE PIKE LAURA A PISTOR LUDGER PORTER TINA DENISE POSEN KEVIN PREET GARY V QUEEN BRENDA JANE QUEK SARAH YING HUI QUINN EMMA JANE VICTORIA REDDING THURSTAN LAM REED KUN TIN RICHARD NANCY G RICHTER CHRISTOPHER L RICHTER YVONNE RIGBY DAVID KEITH RILEY MICHAEL SHAWN RITCHIE AARON ROBERT THANKE ROBERTSON PENNY SAMANTHA ROGER CHRISTINE LEE ROSS ANNE ROSS ROBERT RUEGG JOSEF NICKOLAUS RUEGG URSULA MARIA RUTLEDGE TRACY MARIE SACHS ALEXANDER CLAUS SACHS PHILIPP GUNTER MOHSEN SAGENKAHN DAVA ILISE SALAM SAED SANNAREDDY RAVINDRA B SAP JAN M SCHAUFELBERGER HENRI SCHAUFELBERGER MARGRIT SCHNEIDER ANETTE SCHNEIDER MANFRED OTTO SCHROEDER PETER L SCHRURS ALBERT MAURICE SCHWARZ MARKUS WILLIAM SCOTT JUNE E SCOTT ROBERT P SCOTT SUSAN ANN SEBBA HENRIETTA AMY SEIF- ELYAZAL HATEM SAID SEILERN HENRY OGDEN SENEFF ELIZABETH VICTORIA SHATTAN COLIN MICHAEL SHELTON SCOTT H SHI YIGONG SHIA LOVE SHIPP TIMOTHY R SHIUE YEONG RUEY

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Last name First name Middle name/initials

SHOKROLLAHI MOHAMMAD AMIN SIDERMAN PETER M SIMON KENNETH ROBERT SIMPSON DERMOT MATTHEW SMINKEY (AKA SMINKEY, TAKUMA) PAUL SOLA JOHN BEN SOLARES SIGMUND JOSEPH SON KENNY HO STAVRINOU ALEXANDROS IASONAS STELLING DONALD KAY STILTNER MI RYUNG STOKES GWYNETH EVELYN STOPFORD ROBERT WOODMAN SU TSUNG HSUAN SUBRAMANIAM SUBITHA SUTTON RICHARD DODGE SUZUKI AKIKO SUZUKI KAZUNORI SZABO EILEEN ROSE TABATZNIK RISA TABATZNIK SETH BENJAMIN TAGAMI MARIKO K TANNER NICOLE CAROLINE THAM SALOON THE E DELORES THOMPSON ALDIN EUGENE TIZARD ROBERT TRAUB ANJA TRIMBLE PETER W TSE MAXIMILIEN HONG LIN TSO REBECCA MAN CHI ULIVI JUAN ARMANDO URBANC PETER VLADIMIR VALDEZ LANCE ORMAND VAN DER GRACHT DE ROMMERSWAEL PHILIPPE GUY J. VARGAS ASTRID PRAG VAUGHAN GREGORY JEROME VOSSEN EMILY SUZANNE WAIBEL SIGOURNEY WALKER DOUGLAS GORDON WALLEY AMANDA CLARE WALTER FELIX PAUL WALZ GERD WAN SANDY SAN-MING WANG DAVID TSUNG-HO WANG WENNING WARMINGTON CLIFFORD EVERALD ERROL WEBER SONJA HELENE WERREN MARKUS PAUL WILDE OSAMU WILLCOCK KENNETH MILNER WINGERT MICHAEL L WINGERT MONICA WITSCHI MARION RUTH WOLF LINDA WONG BYRON ANDREW WONG CHING TONG WONG DEREK SHU LUEN WONG KATHLEEN WONG PHYLLIS PO-YAN WOU LYNDON LIEN-SUN WU BIN WU HUI-YEN WU KE ISABELLA XU HUAZHANG YAMAMOTO HARUHISA YANG JUSTIN YANG ROSA YECHIEL JORDANA YOAZ ADIEL MENACHEM YU BING YUEN REGINA SI-HUI YUNG JEFFREY YAN-LEUN ZEIN SOLAIMAN MAZEN

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Last name First name Middle name/initials

ZHAO RUI ZORZINO LUCA ALESSIO ZUCKERBRAUN LOUIS DAVID

Dated: October 12. 2011. DEPARTMENT OF VETERANS 463 (Federal Advisory Committee Act) Ann V. Gaudeli, AFFAIRS that the panels of the Joint Biomedical Manager Team 103, Examinations Laboratory Research and Development Operations—Philadelphia Compliance Joint Biomedical Laboratory Research and Clinical Science Research and Services. and Development and Clinical Science Development Services Scientific Merit [FR Doc. 2011–27570 Filed 10–25–11; 8:45 am] Research and Development Services Review Board will meet from 8 a.m. to Scientific Merit Review Board; Notice 5 p.m. on the dates indicated below: BILLING CODE 4830–01–P of Meetings The Department of Veterans Affairs gives notice under the Public Law 92–

Panel Date(s) Location

Hematology ...... November 16, 2011 ...... The Sheraton Crystal City. Neurobiology-A ...... November 17, 2011 ...... The Sheraton Crystal City. Neurobiology-E ...... November 17, 2011 ...... The Sheraton Crystal City. Endocrinology-B ...... November 18, 2011 ...... The Sheraton Crystal City. Cellular & Molecular Medicine ...... November 21, 2011 ...... The Sheraton Crystal City. Surgery ...... November 22, 2011 ...... The Sheraton Crystal City. Endocrinology-A ...... November 29–30, 2011 ...... The Sheraton Crystal City. Neurobiology-D ...... November 29, 2011 ...... The Sheraton Crystal City. Neurobiology-C ...... December 1–2, 2011 ...... The Sheraton Crystal City. Infectious Diseases-B ...... December 2, 2011 ...... The Sheraton Crystal City. Pulmonary Medicine ...... December 2, 2011 ...... The Sheraton Crystal City. Cardiovascular Studies ...... December 5, 2011 ...... The Sheraton Crystal City. Infectious Diseases-A ...... December 5, 2011 ...... *VA Central Office. Epidemiology ...... December 7, 2011 ...... *VA Central Office. Immunology ...... December 7, 2011 ...... The Sheraton Crystal City. Nephrology ...... December 8, 2011 ...... The Sheraton Crystal City. Oncology ...... December 8–9, 2011 ...... The Sheraton Crystal City. Clinical Research Program ...... December 8–9, 2011 ...... The Sheraton Crystal City. Gastroenterology ...... December 9, 2011 ...... The Sheraton Crystal City. Mental Hlth & Behav Sci-A ...... December 12, 2011 ...... The Sheraton Crystal City. Mental Hlth & Behav Sci-B ...... December 14, 2011 ...... The Sheraton Crystal City. The addresses of the hotel and VA Central Office are: The Sheraton Crystal City, 1800 Jefferson Davis Highway, Arlington, VA. *VA Central Office, 131 M Street, NE., Washington, DC.

Teleconference review, discussion, and evaluation of portions of these panel meetings is in initial and renewal research proposals. accordance with 5 U.S.C., 552b(c) (6) The purpose of the Merit Review The closed portion of each meeting and (9)(B). Those who plan to attend or Board is to provide advice on the involves discussion, examination, would like to obtain a copy of minutes scientific quality, budget, safety and reference to staff and consultant of the panel meetings and rosters of the mission relevance of investigator- critiques of research proposals. During members of the panels should contact initiated research proposals submitted this portion of each meeting, LeRoy G. Frey, Ph.D., Chief, Program for VA merit review consideration. discussions will deal with scientific Proposals submitted for review by the Review (10P9B), Department of Veterans merit of each proposal, qualifications of Affairs, 810 Vermont Avenue, NW., Board involve a wide range of medical personnel conducting the studies, the specialties within the general areas of Washington, DC 20420 at (202) 443– disclosure of which would constitute a 5674. biomedical, behavioral and clinical clearly unwarranted invasion of science research. personal privacy, as well as research Dated: October 21, 2011. The panel meetings will be open to information, the premature disclosure of By Direction of the Secretary. the public for approximately one hour at which could significantly frustrate Vivian Drake, the start of each meeting to discuss the implementation of proposed agency Committee Management Officer. general status of the program. The action regarding such research [FR Doc. 2011–27717 Filed 10–25–11; 8:45 am] remaining portion of each panel meeting proposals. will be closed to the public for the As provided by subsection 10(d) of BILLING CODE P Public Law 92–463, as amended, closing

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Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions; Proposed Rule

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DEPARTMENT OF THE INTERIOR period October 1, 2010, through Species-specific information and September 30, 2011. materials we receive will be available Fish and Wildlife Service We request additional status for public inspection by appointment, information that may be available for during normal business hours, at the 50 CFR Part 17 the 244 candidate species identified in appropriate Regional Office listed below this CNOR. [Docket No. FWS–R9–ES–2011–0061; MO– under Request for Information in 9221050083–B2] DATES: We will accept information on SUPPLEMENTARY INFORMATION. General any of the species in this Candidate information we receive will be available Endangered and Threatened Wildlife Notice of Review at any time. at the Office of Communications and and Plants; Review of Native Species ADDRESSES: This notice is available on Candidate Conservation, Arlington, VA That Are Candidates for Listing as the Internet at http:// (see address under FOR FURTHER Endangered or Threatened; Annual www.regulations.gov and http:// INFORMATION CONTACT). Notice of Findings on Resubmitted www.fws.gov/endangered/what-e-do/ Candidate Notice of Review Petitions; Annual Description of cnor.html. Species assessment forms Progress on Listing Actions with information and references on a Background particular candidate species’ range, AGENCY: Fish and Wildlife Service, The Endangered Species Act of 1973, status, habitat needs, and listing priority Interior. as amended (16 U.S.C. 1531 et seq.) assignment are available for review at (ESA), requires that we identify species ACTION: Notice of review. the appropriate Regional Office listed of wildlife and plants that are SUMMARY: In this Candidate Notice of below in SUPPLEMENTARY INFORMATION or endangered or threatened, based on the Review (CNOR), we, the U.S. Fish and at the Office of Communications and best available scientific and commercial Wildlife Service (Service), present an Candidate Conservation, Arlington, VA information. As defined in section 3 of updated list of plant and animal species (see address under FOR FURTHER the ESA, an endangered species is any INFORMATION CONTACT), or on our Web species which is in danger of extinction native to the United States that we _ regard as candidates for or have site (http://ecos.fws.gov/tess public/ throughout all or a significant portion of proposed for addition to the Lists of pub/SpeciesReport.do?listingType= its range, and a threatened species is Endangered and Threatened Wildlife C&mapstatus=1). Please submit any any species which is likely to become and Plants under the Endangered new information, materials, comments, an endangered species within the Species Act of 1973, as amended. or questions of a general nature on this foreseeable future throughout all or a Identification of candidate species can notice to the Arlington, VA, address significant portion of its range. Through assist environmental planning efforts by listed under FOR FURTHER INFORMATION the Federal rulemaking process, we add providing advance notice of potential CONTACT. Please submit any new species that meet these definitions to listings, allowing landowners and information, materials, comments, or the List of Endangered and Threatened resource managers to alleviate threats questions pertaining to a particular Wildlife at 50 CFR 17.11 or the List of and thereby possibly remove the need to species to the address of the Endangered Endangered and Threatened Plants at 50 list species as endangered or threatened. Species Coordinator in the appropriate CFR 17.12. As part of this program, we Even if we subsequently list a candidate Regional Office listed in SUPPLEMENTARY maintain a list of species that we regard species, the early notice provided here INFORMATION. as candidates for listing. A candidate could result in more options for species FOR FURTHER INFORMATION CONTACT: The species is one for which we have on file management and recovery by prompting Endangered Species Coordinator(s) in sufficient information on biological candidate conservation measures to the appropriate Regional Office(s), or vulnerability and threats to support a alleviate threats to the species. Chief, Office of Communications and proposal to list as endangered or The CNOR summarizes the status and Candidate Conservation, U.S. Fish and threatened, but for which preparation threats that we evaluated in order to Wildlife Service, 4401 N. Fairfax Drive, and publication of a proposal is determine that species qualify as Room 420, Arlington, VA 22203 precluded by higher priority listing candidates and to assign a listing (telephone 703–358–2171). Persons who actions. We may identify a species as a priority number (LPN) to each species or use a telecommunications device for the candidate for listing after we have to determine that species should be deaf (TDD) may call the Federal conducted an evaluation of its status on removed from candidate status. Information Relay Service (FIRS) at our own initiative, or after we have Additional material that we relied on is 800–877–8339. made a positive finding on a petition to available in the Species Assessment and SUPPLEMENTARY INFORMATION: We list a species, in particular we have Listing Priority Assignment Forms request additional status information found that listing is warranted but (species assessment forms) for each that may be available for any of the precluded by other higher priority candidate species. candidate species identified in this listing action (see the Petition Findings Overall, this CNOR recognizes three CNOR. We will consider this section, below). new candidates, changes the LPN for information to monitor changes in the We maintain this list of candidates for seven candidates, and removes three status or LPN of candidate species and a variety of reasons: To notify the public species from candidate status. to manage candidates as we prepare that these species are facing threats to Combined with other decisions for listing documents and future revisions their survival; to provide advance individual species that were published to the notice of review. We also request knowledge of potential listings that separately from this CNOR in the past information on additional species to could affect decisions of environmental year, the current number of species that consider including as candidates as we planners and developers; to provide are candidates for listing is 244. prepare future updates of this notice. information that may stimulate and This document also includes our You may submit your information guide conservation efforts that will findings on resubmitted petitions and concerning this notice in general or for remove or reduce threats to these describes our progress in revising the any of the species included in this species and possibly make listing Lists of Endangered and Threatened notice by one of the methods listed in unnecessary; to request input from Wildlife and Plants (Lists) during the the ADDRESSES section. interested parties to help us identify

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those candidate species that may not shorter timescale (once the threats are included in this notice as a candidate is require protection under the ESA or imminent) than for species with lower one for which we have sufficient additional species that may require the magnitude threats. Because we do not information to prepare a proposed rule ESA’s protections; and to request routinely quantify how likely or how to list it because it is in danger of necessary information for setting soon extinction would be expected to extinction or likely to become priorities for preparing listing proposals. occur absent listing, we must evaluate endangered within the foreseeable We strongly encourage collaborative factors that contribute to the likelihood future throughout all or a significant conservation efforts for candidate and time scale for extinction. We portion of its range. species, and offer technical and therefore consider information such as: For more information on the process financial assistance to facilitate such The number of populations or extent of and standards used in assigning LPNs, efforts. For additional information range of the species affected by the a copy of the 1983 guidance is available regarding such assistance, please threat(s) or both; the biological on our Web site at: http://www.fws.gov/ contact the appropriate Regional Office significance of the affected endangered/esa-library/pdf/48fr43098- listed under Request for Information or population(s), taking into consideration 43105.pdf. For more information on the visit our Web site, http://www.fws.gov/ the life-history characteristics of the LPN assigned to a particular species, the endangered/what-we-do/cca.html. species and its current abundance and species assessment for each candidate distribution; whether the threats affect contains the LPN chart and a rationale Previous Notices of Review the species in only a portion of its range, for the determination of the magnitude We have been publishing candidate and if so the likelihood of persistence of and immediacy of threat(s) and notices of review (CNOR) since 1975. the species in the unaffected portions; assignment of the LPN; that information The most recent CNOR (prior to this the severity of the effects and the is summarized in this CNOR. CNOR) was published on November 10, rapidity with which they have caused or This revised notice supersedes all 2010 (75 FR 69222). CNORs published are likely to cause mortality to previous animal, plant, and combined since 1994 are available on our Web individuals and accompanying declines candidate notices of review. site, http://www.fws.gov/endangered/ in population levels; whether the effects Summary of This CNOR what-we-do/cnor.html. For copies of are likely to be permanent; and the CNORs published prior to 1994, please extent to which any ongoing Since publication of the previous contact the Office of Communications conservation efforts reduce the severity CNOR on November 10, 2010 (75 FR and Candidate Conservation (see FOR of the threat. 69222), we reviewed the available FURTHER INFORMATION CONTACT section As used in our priority-ranking information on candidate species to above). system, immediacy of threat is ensure that a proposed listing is On September 21, 1983, we published categorized as either ‘‘imminent’’ or justified for each species, and guidance for assigning an LPN for each ‘‘nonimminent’’ and is based on when reevaluated the relative LPN assigned to candidate species (48 FR 43098). Using the threats will begin. If a threat is each species. We also evaluated the this guidance, we assign each candidate currently occurring or likely to occur in need to emergency-list any of these an LPN of 1 to 12, depending on the the very near future, we classify the species, particularly species with high magnitude of threats, immediacy of threat as imminent. Determining the priorities (i.e., species with LPNs of 1, threats, and taxonomic status; the lower immediacy of threats helps ensure that 2, or 3). This review and reevaluation the LPN, the higher the listing priority species facing actual, identifiable threats ensures that we focus conservation (that is, a species with an LPN of 1 are given priority for listing proposals efforts on those species at greatest risk would have the highest listing priority). over those for which threats are only first. Section 4(h)(3) of the ESA (15 U.S.C. potential or species that are intrinsically In addition to reviewing candidate 1533(h)(3)) requires the Secretary to vulnerable to certain types of threats but species since publication of the last establish guidelines for such a priority- are not known to be presently facing CNOR, we have worked on numerous ranking guidance system. As explained such threats. findings in response to petitions to list below, in using this system we first Our priority ranking system has three species, and on proposed and final categorize based on the magnitude of categories for taxonomic status: Species determinations for rules to list species the threat(s), then by the immediacy of that are the sole members of a genus; under the ESA. Some of these findings the threat(s), and finally by taxonomic full species (in genera that have more and determinations have been status. than one species); and subspecies and completed and published in the Federal Under this priority-ranking system, distinct population segments of Register, while work on others is still magnitude of threat can be either ‘‘high’’ vertebrate species (DPS). under way (see Preclusion and or ‘‘moderate to low.’’ This criterion The result of the ranking system is Expeditious Progress, below, for details). helps ensure that the species facing the that we assign each candidate a listing Based on our review of the best greatest threats to their continued priority number of 1 to 12. For example, available scientific and commercial existence receive the highest listing if the threat(s) is of high magnitude, information, with this CNOR we priority. It is important to recognize that with immediacy classified as imminent, identify 3 new candidate species (see all candidate species face threats to their the listable entity is assigned an LPN of New Candidates, below), change the continued existence, so the magnitude 1, 2, or 3 based on its taxonomic status LPN for 7 candidates (see Listing of threats is in relative terms. For all (i.e., a species that is the only member Priority Changes in Candidates, below) candidate species, the threats are of of its genus would be assigned to the and determine that a listing proposal is sufficiently high magnitude to put them LPN 1 category, a full species to LPN 2, not warranted for 3 species and thus in danger of extinction, or make them and a subspecies or DPS would be remove them from candidate status (see likely to become in danger of extinction assigned to LPN 3). In summary, the Candidate Removals, below). Combined in the foreseeable future. But for species LPN ranking system provides a basis for with the other decisions published with higher magnitude threats, the making decisions about the relative separately from this CNOR for threats have a greater likelihood of priority for preparing a proposed rule to individual species that previously were bringing about extinction or are list a given species. No matter which candidates, a total of 244 species expected to bring about extinction on a LPN we assign to a species, each species (including 104 plant and 140 animal

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species) are now candidates awaiting as a result of separate petition findings However, these impoundments closely preparation of rules proposing their published in the Federal Register. replicate beaver-pond habitat, and it is listing. These 244 species, along with plausible that the species was once a Mammals the 48 species currently proposed for faunal component of beaver ponds. The listing (includes 4 species proposed for Pacific walrus (Odobenus rosmarus species may also have once inhabited listing due to similarity in appearance), divergens)—We previously announced backwater and other sluggish portions of are included in Table 1. candidate status for this species, and the main channel of lower Cape Fear Table 2 lists the changes from the described the reasons and data on River. previous CNOR, and includes 14 species which the finding was based, in a Beaver-pond habitat was eliminated identified in the previous CNOR as separate warranted-but-precluded 12- for several decades throughout much of either proposed for listing or classified month petition finding published on the lower Cape Fear River as a result of as candidates that are no longer in those February 10, 2011 (76 FR 7634). the extirpation of the North American beaver due to trapping and hunting categories. This includes nine species Reptiles for which we published a final listing during the 19th and early 20th Gopher tortoise, eastern population rule, one species for which we centuries. This, together with draining (Gopherus polyphemus)—We published an emergency listing rule, and destruction of beaver ponds for previously announced candidate status one species for which we published a development, agriculture, and other for this species, and described the withdrawal of a proposed rule, plus the purposes, is believed to have led to a reasons and data on which the finding three species that we have determined significant decline in the snail’s habitat. was based, in a separate warranted-but- do not meet the definition of Also, dredging and deepening of the precluded 12-month petition finding endangered or threatened and therefore Cape Fear River channel, which began published on July 27, 2011 (76 FR do not warrant listing. We have as early as 1822, and opening of the 45130). removed these species from candidate Atlantic Intercoastal Waterway (through Snow’s Cut) in 1930 for navigational status in this CNOR. Also included in Amphibians purposes have caused saltwater Table 2 are three species for which we Striped newt (Notophthalmus intrusion, altered the diversity and published an emergency listing rule due perstriatus)—We previously announced abundance of aquatic vegetation, and to similarity in appearance; these three candidate status for this species, and changed flows and current patterns far species were not previously candidate described the reasons and data on up the river channel and its lower species. which the finding was based, in a tributaries. Under these circumstances, New Candidates separate warranted-but-precluded 12- the magnificent ramshorn could have month petition finding published on survived only in areas of tributary Below we present a brief summary of June 7, 2011 (76 FR 32911). streams not affected by salt water one new snail (magnificent ramshorn), Snails intrusion and other changes, such as the one new insect (Poweshiek skipperling), millponds protected from saltwater and one new plant candidate Magnificent ramshorn (Planorbella intrusion by their dams. The species is (Streptanthus bracteatus), which are magnifica)—The following summary is believed to have been eliminated from additions to this year’s CNOR. Complete based on information in our files. No the millponds from which it has been information, including references, can new information was provided in the recorded due to saltwater intrusion be found in the species assessment petition received on April 20, 2010 during severe storms (Hurricane Fran) forms. You may obtain a copy of these (after we initiated our assessment of this and drought conditions, increased input forms from the Regional Office having species). The magnificent ramshorn is a of nutrients and other pollutants from the lead for the species, or from our Web freshwater snail in the family development activities adversely _ site (http://ecos.fws.gov/tess public/ Planorbidae (Pilsbry 1903). It is the affecting water quality/chemistry and pub/SpeciesReport.do?listingType=C& largest North American snail in this leading to increased nuisance aquatic mapstatus=1). For these species, we family. The magnificent ramshorn is plant and algae growth, and efforts, find that we have on file sufficient endemic to the lower Cape Fear River harmful to the snail, by landowners to information on biological vulnerability basin, North Carolina. The species has control nuisance plant and algae and threats to support a proposal to list been recorded from only four sites in growth. as endangered or threatened, but that the lower Cape Fear River Basin in New While efforts have been made to preparation and publication of a Hanover and Brunswick Counties, North restore habitat for the magnificent proposal is precluded by higher priority Carolina, but is believed to be extirpated ramshorn at one of the sites known to listing actions (i.e., it met our definition from all four of these sites. The only have previously supported the species, of a candidate species). We also note known surviving population is a captive all of the sites known to have previously below that 18 other species—Pacific population, comprised of approximately supported the snail continue to be walrus, gopher tortoise (eastern 100 adults, being maintained and affected or threatened by most of the population), striped newt, 7 species of propagated by a private biologist. same factors (i.e., saltwater intrusion Hawaiian yellow-faced bees (Hylaeus Available information indicates that and other water quality degradation, anthracinus, H. assimulans, H. facilis, suitable habitat for the species is nuisance aquatic plant control, storms, H. hilaris, H. kuakea, H. longiceps, and restricted to relatively shallow, sea level rise, etc.) believed to have H. mana), Hermes copper butterfly, Mt. sheltered portions of still or sluggish, resulted in extirpation of the species Charleston blue butterfly, Puerto Rican freshwater bodies with an abundance from the wild. Currently, only a single harlequin butterfly, Boechera pusilla and diversity of submerged aquatic captive population of the species is (Fremont County rockcress), Eriogonum vegetation and a circumneutral pH (pH known to exist. Although this captive soredium (Frisco buckwheat), Lepidium within the range of 6.8–7.5). The only population of the species has been ostleri (Ostler’s peppergrass), Pinus known records for the species are post- maintained since 1993, a single albicaulis (whitebark pine), Trifolium 1900 and are from manmade millponds catastrophic event, such as a severe friscanum (Frisco clover)—were constructed in the 1700s to provide a storm, disease, or predator infestation, identified as candidates earlier this year freshwater source for rice agriculture. affecting this captive population could

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result in extinction of the species. Wahpeton Sioux Tribe, and private surveys and monitoring data, seed- Accordingly, the magnitude of the organizations (e.g., The Nature collection data, and scientific threats to the species’ survival is high. Conservancy) protect and manage some publications. Bracted twistflower, an The threats are ongoing and therefore Poweshiek skipperling sites. Careful and annual herbaceous plant of the imminent. Thus, we have assigned an considered management is always Brassicaceae (mustard family), is LPN of 2 to this species. necessary to ensure its persistence, even endemic to a small portion of the at protected sites. The species may be Insects Edwards Plateau of Texas. From 1989 to secure at a few sites where public and 2010, 32 populations have been Hawaiian yellow-faced bees (Hylaeus private landowners manage native documented in five counties; of these, anthracinus, H. assimulans, H. facilis, prairie in ways that conserve Poweshiek 15 populations remain with intact H. hilaris, H. kuakea, H. longiceps, and skipperling, but approximately one- H. mana)—We previously announced habitat, 9 persist in degraded or quarter of the inhabited sites are partially destroyed habitats, and 8 are candidate status for these species, and privately owned with little or no presumed extirpated. Only 9 of the described the reasons and data on protection. A few private sites are intact populations occur in protected which the finding was based, in a protected from conversion by separate warranted-but-precluded 12- easements, but these do not preclude natural areas. month petition finding published on adverse effects from overgrazing. The The continued survival of bracted September 6, 2011 (76 FR 55170). threats are such that the Poweshiek twistflower is imminently threatened by Hermes copper butterfly skipperling warrants listing; the threats habitat destruction from urban (Hermelycaena [Lycaena] hermes)—We are high in magnitude because habitat development, severe herbivory from previously announced candidate status degradation and other stressors has very dense herds of white-tailed deer, for this species, and described the resulted in sharp declines in the and the increased density of woody reasons and data on which the finding western portion of its range which plant cover. Additional ongoing threats was based, in a separate warranted-but- contains more than 90 percent of the include erosion and trampling from foot precluded 12-month petition finding species site records. We assigned this and mountain-bike trails, a pathogenic published on April 14, 2011 (76 FR species an LPN of 2 to reflect the fungus of unknown origin, and 20918). ongoing, and therefore, imminent Mt. Charleston blue butterfly insufficient protection by existing threats to the species’ habitat and sharp regulations. Furthermore, due to the (Plebejus shasta charlestonensis)—We population declines documented previously announced candidate status small size and isolation of remaining recently, especially in Iowa and populations and lack of gene flow for this species, and described the Minnesota. reasons and data on which the finding between them, several populations are was based, in a separate warranted-but- Flowering Plants now inbred and may have insufficient precluded 12-month petition finding Boechera pusilla (Fremont County genetic diversity for long-term survival. published on March 8, 2011 (76 FR rockcress) —We previously announced The consistent failure of pilot 12667). candidate status for this species, and reintroduction efforts has so far Puerto Rican harlequin butterfly described the reasons and data on prevented the augmentation and (Atlantea tulita)—We previously which the finding was based, in a reintroduction of populations in announced candidate status for this separate warranted-but-precluded 12- protected, managed sites. Optimal species, and described the reasons and month petition finding published on vegetation management of bracted data on which the finding was based, in June 9, 2011 (76 FR 33924). twistflower populations may be a separate warranted-but-precluded 12- Eriogonum soredium (Frisco incompatible with the management of month petition finding published on buckwheat)—We previously announced golden-cheeked warbler nesting habitat. May 31, 2011 (76 FR 31282). candidate status for this species, and The species is potentially threatened by Poweshiek skipperling (Oarisma described the reasons and data on as-yet unknown impacts of climate poweshiek) —The following summary is which the finding was based, in a change. The Service has established a based on information contained in our separate warranted-but-precluded 12- voluntary Memorandum of Agreement files. The Poweshiek skipperling is a month petition finding published on with Texas Parks and Wildlife small butterfly that currently inhabits February 23, 2011 (76 FR 10166). Department, the City of Austin, Travis high-quality tallgrass prairie in Iowa, Lepidium ostleri (Ostler’s County, the Lower Colorado River Minnesota, North Dakota, South Dakota, peppergrass)—We previously Authority, and the Lady Bird Johnson and Wisconsin and prairie fens in announced candidate status for this Wildflower Center to protect bracted Michigan; it also occurs in the province species, and described the reasons and twistflower and its habitats on tracts of of Manitoba, Canada. The species is data on which the finding was based, in Balcones Canyonlands Preserve. The presumed to be extirpated from Illinois a separate warranted-but-precluded 12- threats to bracted twistflower are of and Indiana and from many sites within month petition finding published on moderate magnitude, and are ongoing occupied States. February 23, 2011 (76 FR 10166). and, therefore, imminent. We find that The Poweshiek skipperling is Pinus albicaulis (whitebark pine)— bracted twistflower is warranted for threatened by degradation of its native We previously announced candidate listing throughout all of its range and prairie habitat by overgrazing, invasive status for this species, and described the assigned it an LPN of 8. species, gravel mining, and herbicide reasons and data on which the finding applications; inbreeding, population was based, in a separate warranted-but- Trifolium friscanum (Frisco clover)— isolation, and prescribed fire threaten precluded 12-month petition finding We previously announced candidate some populations. Prairie succeeds to published on July 19, 2011 (76 FR status for this species, and described the shrubland or forest without periodic 42631). reasons and data on which the finding fire, grazing, or mowing; thus, the Streptanthus bracteatus (bracted was based, in a separate warranted-but- species is also threatened at sites where twistflower)—The following summary is precluded 12-month petition finding such disturbances are not applied. The based on information obtained from our published on February 23, 2011 (76 FR Service, State agencies, the Sisseton- files, on-line herbarium databases, 10166).

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Listing Priority Changes in Candidates Based on new information, the focus Arizona, Colorado, Kansas, Louisiana, We reviewed the LPN for all of our concern has shifted to the low Minnesota, Montana, Nebraska, New candidate species and are changing the reproductive success of Kittlitz’s Mexico, North Dakota, Oklahoma, South numbers for the following species murrelet. Our concern is based on three Dakota, Texas, Canada, and Mexico. The discussed below. Some of the changes lines of reasoning: at the locations Sprague’s pipit is a small grassland bird reflect actual changes in either the where we have the most complete characterized by its high flight display magnitude or immediacy of the threats. information, Agattu and Kodiak Islands, and otherwise very secretive behavior. For some species, the LPN change nest success is very low (less than 10 Sprague’s pipits are strongly tied to reflects efforts to ensure national percent); few juvenile birds have been native prairie (land which has never documented; and there are indications been plowed) throughout their life consistency as well as closer adherence that few females (approximately 10 cycle. to the 1983 guidelines in assigning these percent) are breeding in spite of the fact Threats to this species include: numbers, rather than an actual change (based on blood chemistry) that Habitat loss and conversion, habitat in the nature of the threats. approximately 90 percent appear to be fragmentation on the breeding grounds, Birds physiologically prepared to breed. energy development, roads, and inadequacy of existing regulatory Kittlitz’s murrelet (Brachyramphus Although the implications of these mechanisms. Only 15 to 18 percent of brevirostris)—The following summary is results are serious, we must temper our the historical breeding habitat in the based on information contained in our concern with the knowledge that the United States remains due to prairie files and the petition we received on results are limited to small parts of the habitat loss and fragmentation. The May 9, 2001. Kittlitz’s murrelet is a murrelet’s range and for a long-lived Breeding Bird Survey and Christmas small diving seabird that inhabits bird, we have data for relatively few Bird Count both show a 40-year decline Alaskan coastal waters discontinuously, years. Consequently, we conclude that the magnitude of this threat is moderate. of 73 to 79 percent (3.23 to 4.1 percent from Point Lay south to northern For a K-selected species such as annually). We anticipate that prairie portions of southeast Alaska, west to the Kittlitz’s murrelet, loss of the adults is habitat will continue to be converted tip of the Aleutian Islands, and the particularly important, and we have and fragmented. Most of the breeding eastern coastline of Russia. During the identified several sources of adult range, including those areas where breeding season, most Kittlitz’s mortality such as hydrocarbon grassland habitat still remains, has been murrelets are associated with tidewater contamination, entanglement in gillnets, identified as a prime area for wind glaciers, but breeding has also been and predation. Although none of these energy development, and an oil and gas documented throughout their range in sources of mortality alone rises to the boom is occurring in the central part of areas where glaciers no longer exist. We level of a threat, in total, the chronic, the breeding range in the United States concluded in the past that the loss of low-level loss of adults, in combination and Canada. On the wintering range, tidewater glaciers was a threat to the with evidence that a small proportion of conversion of grassland to agriculture species and the magnitude of that threat the population is breeding, and the low and other uses appears to be was high because of the rate of change reproductive success lead us to accelerating. We recently announced in the glaciers. There is no doubt that conclude that it will be difficult for this candidate status for Sprague’s pipit in a tidewater glaciers are receding most species to maintain a stable population warranted-but-precluded 12-month likely due to climate change. It is also level or rebound from a stochastic event petition finding published on clear that in one part of their range, that causes population loss. The September 15, 2010 (75 FR 56028). Kittlitz’s murrelets are associated with magnitude of threat from these sources Because of an error in our original GIS glacially influenced waters during the is low to moderate, depending on events analysis of the magnitude of the threats summer breeding period. What is that occur in a given year (number and (as presented in our 12-month finding), unclear is the nature of the association location of oil spills/ship wrecks, we have now determined that the and if these areas are more important to number and location of gillnets). magnitude of threats is moderate as a the Kittlitz’s murrelet’s population For these reasons, this year, our focus smaller area of the range is affected by viability than other areas. Nests have shifted from the loss of glaciers to poor the threats, thereby reducing the effect been documented throughout their reproductive success. Poor nest success of the threats to a lower level. Thus, we range; what is unknown is if nest (as opposed to adult mortality) could be are changing the LPN of the Sprague’s survival is better near glaciers. Although the underlying reason for the population pipit from a 2 to an 8. we know that Kittlitz’s murrelet habitat decline, and if it is occurring rangewide, will continue to be modified as glaciers the population would be expected to Reptiles continue to recede, we currently do not continue to decline. Currently, our most Eastern massasauga rattlesnake have evidence that this modification detailed nest information comes from (Sistrurus catenatus)—Until 2011, the will lead to conditions that will lead to Agattu and Kodiak Islands. Whether eastern massasauga was considered one a population-level decline. these locations and the timeframe of three recognized subspecies of In the past we had a high level of observed are representative of the massasauga. Recent information concern over the population decline and rangewide situation is unknown; indicates that the eastern massasauga its magnitude. Although we still therefore, we have determined that represents a distinct species, and we conclude that the population has threat magnitude is moderate, not high. recognize it as such beginning in 2011. declined, based on ongoing analyses, Because the identified threats are It is a small, thick-bodied rattlesnake the magnitude of the decline is much currently occurring, they are imminent. that occupies shallow wetlands and less certain. Work is currently underway Thus, we are changing the LPN from a adjacent upland habitat in portions of to evaluate past surveys and the status 2 to an 8. Illinois, Indiana, Iowa, Michigan, and trend of Kittlitz’s murrelet across its Sprague’s pipit (Anthus spragueii)— Minnesota, New York, Ohio, range. We anticipate that our ability to The following summary is based on Pennsylvania, Wisconsin, and Ontario. evaluate trends and population size will information contained in our files and Populations in Missouri, formerly be greatly improved when these projects in the petition we received on October included within the previously are completed and published. 15, 2008. This species occurs in recognized subspecies of eastern

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massasauga, are now considered to be should be recognized as a species rather from candidate status. In consideration the western massasauga, Sistrurus than a subspecies. of these conservation efforts and the tergeminus tergeminus. overall threat level to the species, we Amphibians Although the current range of S. determined the magnitude of existing catenatus resembles the species’ Relict leopard frog (Lithobates onca) threats is moderate to low. However, historical range, the geographic (formerly in Rana)—The following because water development and other distribution has been restricted by the summary is based on information habitat effects, presence of introduced loss of the species from much of the area contained in our files. Natural relict predators, presence of chytrid fungus, within the boundaries of that range. leopard frog populations occur in two limited distribution, small population Approximately 40 percent of the general areas in Nevada: near the size, and climate change are ongoing or counties that were historically occupied Overton Arm area of Lake Mead and will occur in the near future, the threats by S. catenatus no longer support the Black Canyon below Lake Mead. These are imminent. The discovery of chytrid species. Sistrurus catenatus is currently two areas include a small fraction of the fungus in relict leopard frogs in 2010 is listed as endangered in every State and historical distribution of the species. Its a new and potentially serious threat. province in which it occurs, except for historical range included springs, Therefore, we changed the LPN from an Michigan where it is designated as a streams, and wetlands within the Virgin 11 to an 8 for this species. River drainage downstream from the species of special concern. Each State Snails and Canadian province across the range vicinity of Hurricane, Utah; along the Muddy River, Nevada; and along the Huachuca springsnail (Pyrgulopsis of S. catenatus has lost more than 30 Colorado River from its confluence with thompsoni)—The following is based on percent, and for the majority more than the Virgin River downstream to Black information contained in our files. No 50 percent, of their historical Canyon below Lake Mead, Nevada and new information was provided in the populations. Furthermore, less than 35 Arizona. petition received on May 11, 2004. The percent of the remaining populations Factors contributing to the decline of Huachuca springsnail inhabits are considered secure. Approximately the species include alteration, loss, and approximately 19 springs in 59 percent of the remaining S. catenatus degradation of aquatic habitat due to southeastern Arizona and two springs in populations occur wholly or in part on water developments and Sonora, Mexico. The springsnail is public land, and Statewide and site- impoundments, and scouring and typically found in shallow water specific Candidate Conservation erosion; changes in plant communities habitats, often in rocky seeps at the Agreements with Assurances (CCAAs) that result in dense growth and the spring source. Potential threats include are currently being developed for many prevalence of vegetation; introduced habitat modification and destruction of these areas in Iowa, Illinois, predators; climate change; and through catastrophic wildfire and Michigan, and Wisconsin. In 2004, a stochastic events. The presence of unmanaged grazing. Overall, the threats Candidate Conservation Agreement chytrid fungus in relict leopard frogs at are low in magnitude because threats (CCA) with the Lake County Forest Lower Blue Point Spring in 2010 are not occurring throughout the range Preserve District in Illinois was warrants further evaluation of the threat of the species uniformly and not all completed. In 2005, a CCA with the of disease to the relict leopard frog. The populations would likely be affected Forest Preserve District of Cook County size of natural and translocated simultaneously by the known threats. in Illinois was completed. In 2006, a populations is small, and therefore these The available information indicates that CCAA with the Ohio Department of populations are vulnerable to stochastic threats are not currently ongoing in or Natural Resources Division of Natural events, such as floods and wildfire. adjacent to occupied habitats. Areas and Preserves was completed for Climate change that results in reduced Accordingly, threats are nonimminent. Rome State Nature Preserve in spring flow, habitat loss, and increased Therefore, we are reducing the LPN Ashtabula County. prevalence of wildfire would adversely from an 8 to an 11 for this species. The magnitude of threats is moderate affect relict leopard frog populations. at this time. However, a recently In 2005, the National Park Service, in Insects completed extinction risk model, and cooperation with the Fish and Wildlife Meltwater lednian stonefly (Lednia information provided by species Service and other Federal, State, and tumana)—The following summary is experts, indicates that other populations local partners, developed a conservation based on information contained in our are likely to suffer additional losses in agreement and strategy intended to files and in the petition we received on abundance and genetic diversity and improve the status of the species July 30, 2007. This species is an aquatic some will likely be extirpated unless through prescribed management actions insect in the order Plecoptera threats are removed in the near future. and protection. Conservation actions (stoneflies). Stoneflies are primarily Declines have continued or may be identified in the agreement and strategy associated with clean, cool streams and accelerating in several States. Thus, we include captive rearing of tadpoles for rivers. Eggs and nymphs (juveniles) of are monitoring the status of this species translocation and refugium populations, the meltwater lednian stonefly are to determine if a change in listing habitat and natural history studies, found in high-elevation, alpine, and priority is warranted. Threats of habitat habitat enhancement, population and subalpine streams, most typically in modification, habitat succession, habitat monitoring, and translocation. locations closely linked to glacial incompatible land management New sites within the historical range of runoff. The species is generally practices, illegal collection for the pet the species have been successfully restricted to streams with mean summer trade, and human persecution are established with captive-reared frogs. water temperature less than 10 °C (50 ongoing and imminent threats to many Conservation is proceeding under the °F). Adults emerge from the nymph remaining populations, particularly agreement and strategy; however, stage and mate in streamside vegetation. those inhabiting private lands. We do additional time is needed to determine The only known meltwater lednian not believe emergency listing is whether or not the agreement and stonefly occurrences are within Glacier warranted. We are changing the LPN strategy will be effective in eliminating National Park (NP), Montana. Climate from a 9 to an 8, reflecting the recent or reducing the threats to the point that change, and the associated effects of information indicating that this snake the relict leopard frog can be removed glacier loss (with glaciers predicted to

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be gone by 2030), reduced streamflows, magnitude of threats, we changed the geothermal development is unlikely to and increased water temperatures, is LPN for this species from a 2 to an 8. occur within Gila springsnail habitat. expected to significantly reduce the Additionally, the discovery of Candidate Removals occurrence of populations and extent of additional populations in 2008 and suitable habitat for the species in As summarized below, we have 2009 reveals the species is secure from Glacier NP. In addition, the existing evaluated the threats to the following stochastic, habitat-modifying events. regulatory mechanisms do not address species and considered factors that, The distribution of the species and environmental changes due to global individually and in combination, variance in the location of its habitat climate change. We recently announced currently or potentially could pose a reduces the risk of the loss of the candidate status for the meltwater risk to these species and their habitats. species from stochastic, habitat- lednian stonefly in a warranted-but- After a review of the best available modifying events. We have no precluded 12-month petition finding scientific and commercial data, we indication that collection of the species published on April 5, 2011 (76 FR conclude that listing these species is occurring, other than rarely by 18684). We originally assigned the under the Endangered Species Act is not researchers confirming its discovery at species an LPN of 4 based on three warranted because these species are not new springs. Also, as the Gila criteria: (1) The high magnitude of likely to become an endangered species springsnail occurs on Forest Service threat, which is projected to within the foreseeable future throughout land with limited access, we do not substantially reduce the amount of all or a significant portion of their anticipate any future collections for suitable habitat relative to the species’ ranges. Therefore, we find that other purposes. There are no known current range; (2) the low imminence of proposing a rule to list them is not diseases that affect Gila springsnails, the threat based on the lack of warranted, and we no longer consider and no native or nonnative predators documented evidence that populations them to be candidate species for listing. occur at these springs. Additionally, we are being affected by climate change We will continue to monitor the status are not aware of any introduced species now; and (3) the taxonomic status of the of these species and to accept additional at the springs that would affect the species, which was the only described information and comments concerning springsnails. member of its genus (monotypic taxon). this finding. We will reconsider our The effects of future climate change Recently, stonefly specimens discovered determination in the event that new may serve to exacerbate habitat loss in Mount Rainier NP, North Cascades information indicates that the threats to from other factors. However, as we have the species are of a considerably greater NP, and in the Sierra Nevada Mountains determined that the Gila springsnail is magnitude or imminence than identified of California have been formally not threatened with habitat loss, we through assessments of information described as two additional species in cannot predict with any certainty that contained in our files, as summarized the effects of climate change will the Lednia genus—L. borealis and L. here. exacerbate any future habitat concerns sierra—which indicates that the sufficiently to consider climate change, meltwater lednian stonefly is no longer Snails on its own, a threat to the species. in a monotypic genus. Based on this Gila springsnail (Pyrgulopsis gilae)— Therefore, we have determined that new taxonomic information, we are The following summary is based on climate change is not currently a threat changing the LPN of this species from information contained in our files and to the Gila springsnail now or in the a 4 to a 5. the petition we received on November foreseeable future. In conclusion, due to Arachnids 20, 1985. Also see our 12-month the lack of threats to the continued petition finding published in the existence of the Gila springsnail under Warton’s cave meshweaver (Cicurina Federal Register on October 4, 1988 (53 any of the five factors now or in the wartoni)—The following summary is FR 38969). The Gila springsnail is an foreseeable future, we find that the Gila based on information contained in our aquatic species previously known from springsnail does not meet the definition files. No new information was provided 13 populations in New Mexico. Surveys of a threatened or endangered species in the petition received on May 11, conducted in 2008 and 2009 located 37 and no longer warrants listing 2004. Warton’s Cave meshweaver is an additional populations, bringing the throughout all or a significant portion of eyeless, cave-dwelling, unpigmented, known total to 50. its range, and we removed it from the 0.23-inch-long invertebrate known only The long-term persistence of the Gila candidate list. from female specimens. This springsnail is contingent upon New Mexico springsnail (Pyrgulopsis meshweaver is known to occur in only protection of the riparian corridor and thermalis)—The following summary is one cave (Pickle Pit) in Travis County, maintenance of flow to ensure based on information contained in our Texas. Primary threats to the species continuous, oxygenated, flowing water files and the petition received on and its habitat are predation and within the species’ required thermal November 20, 1985. Also see our 12- competition from red-imported fire ants, range. Based on new information, we month petition finding published on surface and subsurface effects from now foresee no threats to the habitat of October 4, 1988 (53 FR 38969). The New polluted runoff from an adjacent the Gila springsnail. Disturbance to the Mexico springsnail is an aquatic species subdivision, unauthorized entry into the species from recreational activity is that was previously known from only area surrounding the cave, and trash occurring rarely, with minimal effects to two separate populations associated dumping that may include toxic the species, and is not likely to become with a series of spring-brook systems materials near the feature. The a threat in the foreseeable future due to along the Gila River in the Gila National magnitude of threats is low to moderate the inaccessibility of the springsnail Forest in Grant County, New Mexico. based on observations made during an populations. Livestock grazing may Subsequent surveys in 2008 and 2009 April 5, 2011, site visit. In addition, have affected Gila springsnails in the discovered 12 additional populations, Pickle Pit occurs in a preserve past, but exclusion of livestock from the for a total of 14 separate populations. established for mitigation for the riparian habitat has removed this threat. The long-term persistence of the New endangered golden-cheeked warbler; Current springsnail populations are Mexico springsnail is contingent upon hence the meshweaver receives some located in areas with minimal fire or protection of the riparian corridor and protection. Due to a reduction in the flood risk. Groundwater use for maintenance of flow to ensure

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continuous, oxygenated, flowing water its range. As a result, we have removed current threats are minimized and within the species’ required thermal it from the candidate list. restricted within the larger range of the range. Based on new information, we species, and future potential threats are Insects now foresee no threats to the habitat of monitored, we find the wekiu bug does the New Mexico springsnail. Wekiu bug (Nysius wekiuicola)—The not meet the definition of a threatened Disturbance to the species from following summary is based on or endangered species and no longer recreational activity is occurring rarely, information contained in our files. No warrants listing throughout all or a with minimal impacts to the species, new information was provided in the significant portion of its range. Thus, we and is not likely to become a threat in petition we received on May 11, 2004. have removed it from candidate status. The wekiu bug belongs to the true bug the foreseeable future due to the Petition Findings inaccessibility of the springsnail family, Lygaeidae, and occurs only on populations. Livestock grazing may the summit of Mauna Kea on the island The ESA provides two mechanisms have affected New Mexico springsnails of Hawaii. The wekiu bug was believed for considering species for listing. One in the past, but exclusion of livestock to be limited in range to six pu’us method allows the Secretary, on his from the riparian habitat has removed (cinder cones) in the summit area and own initiative, to identify species for this threat. Current springsnail was threatened by loss of habitat on listing under the standards of section populations are located in areas with Mauna Kea due to development of 4(a)(1). We implement this through the minimal fire or flood risk. Groundwater observatory facilities, which was candidate program, discussed above. use for geothermal development is believed to be causing a severe decline The second method for listing a species unlikely to occur within New Mexico in its numbers. Surveys and other provides a mechanism for the public to springsnail habitat. Additionally, the studies carried out over the last 11 years petition us to add a species to the Lists. discovery of additional populations in suggest the wekiu bug has a broader The CNOR serves several purposes as 2008 and 2009 reveals the species is distribution on Mauna Kea than part of the petition process: (1) In some secure from stochastic, habitat- previously known. Surveys now instances (in particular, for petitions to modifying events. indicate that the wekiu bug is currently list species that the Service has already found on 16 pu’us. Two of these 16 identified as candidates on its own The distribution of the species and pu’us occur in an area that has initiative), it serves as the petition variance in the location of its habitat undergone development of astronomy finding; (2) it serves as a ‘‘resubmitted’’ reduces the risk of the loss of the observatory facilities. The previous petition finding that the ESA requires species from stochastic, habitat- trend toward loss of habitat due to the Service to make each year; and (3) modifying events. We have no observatory construction has been it documents the Service’s compliance indication that collection of the species curtailed, and no new construction, with the statutory requirement to is occurring, other than rarely by including the currently planned Thirty- monitor the status of species for which researchers confirming its discovery at meter Telescope project, will occur on listing is warranted-but-precluded to new springs. Also, as the New Mexico any pu’u occupied by the species. ascertain if they need emergency listing. springsnail occurs on Forest Service Management of the Mauna Kea summit First, the CNOR serves as a petition land with limited access, we do not area by the Office of Mauna Kea finding in some instances. Under anticipate any future collections for Management includes continued section 4(b)(3)(A), when we receive a other purposes. There are no known monitoring of the wekiu bug and its listing petition, we must determine diseases that affect New Mexico habitat, and scientific studies to assist in within 90 days, to the maximum extent springsnails, and no native or nonnative managing and protecting wekiu bug practicable, whether the petition predators occur at these springs. populations and habitat. The 2000 presents substantial information Additionally, we are not aware of any Mauna Kea Science Reserve indicating that listing may be warranted introduced species at the springs that Management Plan, the Mauna Kea (a ‘‘90-day finding’’). If we make a would affect the springsnails. Comprehensive Management Plan, the positive 90-day finding, we must The effects of future climate change four subplans (natural resources promptly commence a status review of may serve to exacerbate habitat loss management plan, cultural resources the species under section 4(b)(3)(A); we from other factors. However, as we have management plan, decommissioning must then make and publish one of determined that the New Mexico plan, and public access plan), and a three possible findings within 12 springsnail is not threatened with procedure for formal review of new months of the receipt of the petition (a habitat loss, we cannot predict with any projects on Mauna Kea all contribute to ‘‘12-month finding’’): certainty that the effects of climate the protection and conservation of the (1) The petitioned action is not change will exacerbate any future wekiu bug. warranted; habitat concerns sufficiently to consider Studies over the last 11 years also (2) The petitioned action is warranted climate change, on its own, a threat to indicate the wekiu bug has a stable (in which case we are required to the species. Therefore, we have population, and demonstrate that this promptly publish a proposed regulation determined that climate change is not species exhibits extreme variability in to implement the petitioned action; currently a threat to the New Mexico terms of annual densities at any given once we publish a proposed rule for a springsnail now or in the foreseeable site, such that the normal bounds of species, section 4(b)(5) and 4(b)(6) future. natural population variance for this govern further procedures regardless of In conclusion, due to the lack of species are much wider than previously whether we issued the proposal in threats to the continued existence of the understood. Based on our review of the response to a petition); or New Mexico springsnail under any of best available information we no longer (3) The petitioned action is warranted the five factors now or in the foreseeable conclude that threats across the wekiu but (a) the immediate proposal of a future, we find that the New Mexico bug’s expanded range put the species in regulation and final promulgation of a springsnail does not meet the definition danger of extinction. In summary, regulation implementing the petitioned of a threatened or endangered species because the wekiu bug is likely stable in action is precluded by pending and no longer warrants listing numbers, the wekiu bug is more proposals to determine whether any throughout all or a significant portion of widespread than previously believed, species is endangered or threatened, and

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(b) expeditious progress is being made with section 4(b)(3)(B) of the ESA at Table 1, below, which includes the lead to add qualified species to the Lists of least once a year, until we publish a region and the LPN for each species. Endangered or Threatened Wildlife and proposal to list the species or make a Our preclusion determinations are Plants. (We refer to this third option as final not-warranted finding. We make further based upon our budget for listing a ‘‘warranted-but-precluded finding.’’). these annual findings for petitioned activities for unlisted species only, and We define ‘‘candidate species’’ to candidate species through the CNOR. we explain the priority system and why mean those species for which the Third, through undertaking the the work we have accomplished does Service has on file sufficient analysis required to complete the preclude action on listing candidate information on biological vulnerability CNOR, the Service determines if any species. and threat(s) to support issuance of a candidate species needs emergency In preparing this CNOR, we reviewed proposed rule to list, but for which listing. Section 4(b)(3)(C)(iii) of the ESA the current status of, and threats to, the issuance of the proposed rule is requires us to ‘‘implement a system to 204 candidates and 5 listed species for precluded (61 FR 64481; December 5, monitor effectively the status of all which we have received a petition and 1996). This standard for making a species’’ for which we have made a for which we have found listing or species a candidate through our own warranted-but-precluded 12-month reclassification from threatened to initiative is identical to the standard for finding, and to ‘‘make prompt use of the endangered to be warranted but making a warranted-but-precluded 12- [emergency listing] authority [under precluded. Included in this work is our month petition finding on a petition to section 4(b)(7)] to prevent a significant review of the current status of, and list, and we add all petitioned species risk to the well being of any such threats to, the Canada lynx in New for which we have made a warranted- species.’’ The CNOR plays a crucial role Mexico for which we received a petition but-precluded 12-month finding to the in the monitoring system that we have to add that State to the listed range. We candidate list. implemented for all candidate species find that the immediate issuance of a Therefore, all candidate species by providing notice that we are actively proposed rule and timely promulgation identified through our own initiative seeking information regarding the status of a final rule for each of these species already have received the equivalent of of those species. We review all new has been, for the preceding months, and substantial 90-day and warranted-but- information on candidate species as it continues to be, precluded by higher precluded 12-month findings. becomes available, prepare an annual priority listing actions. Additional Nevertheless, we review the status of species assessment form that reflects information that is the basis for this the newly petitioned candidate species monitoring results and other new finding is found in the species and through this CNOR publish specific information, and identify any species assessments and our administrative section 4(b)(3) findings (i.e., substantial for which emergency listing may be record for each species. 90-day and warranted-but-precluded 12- appropriate. If we determine that Our review included updating the month findings) in response to the emergency listing is appropriate for any status of, and threats to, petitioned petitions to list these candidate species. candidate we will make prompt use of candidate or listed species for which we We publish these findings as part of the the emergency listing authority under published findings, under section first CNOR following receipt of the section 4(b)(7). For example, on August 4(b)(3)(B) of the ESA, in the previous petition. On April 20, 2010, we received 10, 2011, we emergency listed the CNOR. We have incorporated new a petition to list the magnificent Miami blue butterfly (76 FR 49542). We information we gathered since the prior ramshorn (see summary above under have been reviewing and will continue finding and, as a result of this review, New Candidates) after we had initiated to review, at least annually, the status of we are making continued warranted- our assessment of this species for every candidate, whether or not we have but-precluded 12-month findings on the candidate status. In addition, the received a petition to list it. Thus, the petitions for these species. following species that were already on CNOR and accompanying species The immediate publication of our candidate list were also included in assessment forms constitute the proposed rules to list these species was this petition: Black Warrior waterdog, Service’s annual finding on the status of precluded by our work on higher sicklefin redhorse, rabbitsfoot, black petitioned species under section priority listing actions, listed below, mudalia, Coleman cave beetle, and 4(b)(3)(C)(i) of the ESA. during the period from October 1, 2010, Solidago plumosa (Yadkin River A number of court decisions have through September 30, 2011. We will goldenrod). The petition did not provide elaborated on the nature and specificity continue to monitor the status of all any new information on these species. of information that must be considered candidate species, including petitioned We published a separate substantial 90- in making and describing the petition species, as new information becomes day finding for all of the above species findings in the CNOR. The CNOR available to determine if a change in on September 27, 2011 (76 FR 59836). published on November 9, 2009 (74 FR status is warranted, including the need As part of this notice, we are making the 57804), describes these court decisions to emergency-list a species under warranted-but-precluded 12-month in further detail. As with previous section 4(b)(7) of the ESA. finding for these species. We have CNORs, we continue to incorporate In addition to identifying petitioned identified the candidate species for information of the nature and specificity candidate species in Table 1 below, we which we received petitions by the code required by the courts. For example, we also present brief summaries of why ‘‘C*’’ in the category column on the left include a description of the reasons why each of these candidates warrants side of Table 1 below. the listing of every petitioned candidate listing. More complete information, Second, the CNOR serves as a species is both warranted and precluded including references, is found in the ‘‘resubmitted’’ petition finding. Section at this time. We make our species assessment forms. You may 4(b)(3)(C)(i) of the ESA requires that determinations of preclusion on a obtain a copy of these forms from the when we make a warranted-but- nationwide basis to ensure that the Regional Office having the lead for the precluded finding on a petition, we are species most in need of listing will be species, or from the Fish and Wildlife to treat such a petition as one that is addressed first and also because we Service’s Internet Web site: http://ecos. resubmitted on the date of such a allocate our listing budget on a fws.gov/tess_public/pub/Species finding. Thus, we must make a 12- nationwide basis (see below). Regional Report.do?listingType=C&mapstatus=1. month petition finding in compliance priorities can also be discerned from As described above, under section 4 of

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the ESA, we may identify and propose final rules. The number of listing on a nationwide basis. Through the species for listing based on the factors actions that we can undertake in a given listing cap, the critical habitat subcap, identified in section 4(a)(1), and section year also is influenced by the and the amount of funds needed to 4 also provides a mechanism for the complexity of those listing actions; that address court-mandated critical habitat public to petition us to add species to is, more complex actions generally are designations, Congress and the courts the Lists of Endangered or Threatened more costly. The median cost for have in effect determined the amount of Wildlife and Plants under the ESA. preparing and publishing a 90-day money available for other listing Below we describe the actions that finding is $39,276; for a 12-month activities nationwide. Therefore, the continue to preclude the immediate finding, $100,690; for a proposed rule funds in the listing cap, other than those proposal and final promulgation of a with critical habitat, $345,000; and for needed to address court-mandated regulation implementing each of the a final listing rule with critical habitat, critical habitat for already listed species, petitioned actions for which we have $305,000. represent the resources we must take made a warranted-but-precluded We cannot spend more than is into consideration when we make our finding, and we describe the appropriated for the Listing Program determinations of preclusion and expeditious progress we are making to without violating the Anti-Deficiency expeditious progress. add qualified species to, and remove Act (see 31 U.S.C. 1341(a)(1)(A)). In Congress identified the availability of species from, the Lists of Endangered or addition, in FY 1998 and for each fiscal resources as the only basis for deferring Threatened Wildlife and Plants. year since then, Congress has placed a the initiation of a rulemaking that is statutory cap on funds which may be warranted. The Conference Report Preclusion and Expeditious Progress expended for the Listing Program, equal accompanying Public Law 97–304, Preclusion is a function of the listing to the amount expressly appropriated which established the current statutory priority of a species in relation to the for that purpose in that fiscal year. This deadlines and the warranted-but- resources that are available and the cost cap was designed to prevent funds precluded finding, states that the and relative priority of competing appropriated for other functions under amendments were ‘‘not intended to demands for those resources. Thus, in the ESA (for example, recovery funds allow the Secretary to delay any given fiscal year (FY), multiple for removing species from the Lists), or commencing the rulemaking process for factors dictate whether it will be for other Service programs, from being any reason other than that the existence possible to undertake work on a listing used for Listing Program actions (see of pending or imminent proposals to list proposal regulation or whether House Report 105–163, 105th Congress, species subject to a greater degree of promulgation of such a proposal is 1st Session, July 1, 1997). threat would make allocation of precluded by higher priority listing Since FY 2002, the Service’s budget resources to such a petition [that is, for actions. has included a critical habitat subcap to a lower-ranking species] unwise.’’ The resources available for listing ensure that some funds are available for Although that statement appeared to actions are determined through the other work in the Listing Program (‘‘The refer specifically to the ‘‘to the annual Congressional appropriations critical habitat designation subcap will maximum extent practicable’’ limitation process. The appropriation for the ensure that some funding is available to on the 90-day deadline for making a Listing Program is available to support address other listing activities’’ (House ‘‘substantial information’’ finding, that work involving the following listing Report No. 107–103, 107th Congress, 1st finding is made at the point when the actions: Proposed and final listing rules; Session, June 19, 2001)). In FY 2002 and Service is deciding whether or not to 90-day and 12-month findings on each year until FY 2006, the Service has commence a status review that will petitions to add species to the Lists of had to use virtually the entire critical determine the degree of threats facing Endangered and Threatened Wildlife habitat subcap to address court- the species, and therefore the analysis and Plants (Lists) or to change the status mandated designations of critical underlying the statement is more of a species from threatened to habitat, and consequently none of the relevant to the use of the warranted-but- endangered; annual ‘‘resubmitted’’ critical habitat subcap funds have been precluded finding, which is made when petition findings on prior warranted- available for other listing activities. In the Service has already determined the but-precluded petition findings as some FYs since 2006, we have been able degree of threats facing the species and required under section 4(b)(3)(C)(i) of to use some of the critical habitat is deciding whether or not to commence the ESA; critical habitat petition subcap funds to fund proposed listing a rulemaking. findings; proposed and final rules determinations for high-priority In FY 2011, on April 15, 2011, designating critical habitat; and candidate species. In other FYs, while Congress passed the Full-Year litigation-related, administrative, and we were unable to use any of the critical Continuing Appropriations Act (Pub. L. program-management functions habitat subcap funds to fund proposed 112–10), which provided funding (including preparing and allocating listing determinations, we did use some through September 30, 2011. The budgets, responding to Congressional of this money to fund the critical habitat Service was provided $20,902,000 for and public inquiries, and conducting portion of some proposed listing the listing program. Of that, the Service public outreach regarding listing and determinations so that the proposed used $9,472,000 for determinations of critical habitat). The work involved in listing determination and proposed critical habitat for already listed species. preparing various listing documents can critical habitat designation could be Also $500,000 was appropriated for be extensive, and may include, but is combined into one rule, thereby being foreign species listings under the ESA. not limited to: Gathering and assessing more efficient in our work. For FY 2011, The Service thus had $10,930,000 the best scientific and commercial data we were again able to use some of the available to fund work in the following available and conducting analyses used critical habitat subcap funds to fund categories: Compliance with court as the basis for our decisions; writing proposed listing determination. orders and court-approved settlement and publishing documents; and We make our determinations of agreements requiring that petition obtaining, reviewing, and evaluating preclusion on a nationwide basis to findings or listing determinations be public comments and peer-review ensure that the species most in need of completed by a specific date; section 4 comments on proposed rules and listing will be addressed first and also (of the ESA) listing actions with incorporating relevant information into because we allocate our listing budget absolute statutory deadlines; essential

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litigation-related, administrative, and Conservation of Nature and Natural In addition, we take into consideration listing program-management functions; Resources (IUCN) Red list status/rank, the availability of staff resources when and high-priority listing actions for Heritage rank (provided by we determine which high-priority some of our candidate species. In FY NatureServe), Heritage threat rank species will receive funding to 2010, the Service received many new (provided by NatureServe), and species minimize the amount of time and petitions and a single petition to list 404 currently with fewer than 50 resources required to complete each species. The receipt of petitions for a individuals, or 4 or fewer populations. listing action. large number of species is consuming Those species with the highest IUCN Based on these prioritization factors, the Service’s listing funding that is not rank (critically endangered), the highest we continue to find that proposals to list dedicated to meeting court-ordered Heritage rank (G1), the highest Heritage the petitioned candidate species commitments. Absent some ability to threat rank (substantial, imminent included in Table 1 are all precluded by balance effort among listing duties threats), and currently with fewer than higher priority listing actions including under existing funding levels, the 50 individuals, or fewer than 4 those with court-ordered and court- Service was only able to initiate a few populations, originally comprised a approved settlement agreements, listing new listing determinations for candidate group of approximately 40 candidate actions with absolute statutory species in FY 2011. species (‘‘Top 40’’). These 40 candidate deadlines, and work on proposed listing In 2009, the responsibility for listing species have had the highest priority to determinations for candidate species foreign species under the ESA was receive funding to work on a proposed with higher listing priorities. transferred from the Division of listing determination. As we work on Scientific Authority, International proposed and final listing rules for those As explained above, a determination Affairs Program, to the Endangered 40 candidates, we apply the ranking that listing is warranted but precluded Species Program. Therefore, starting in criteria to the next group of candidates must also demonstrate that expeditious FY 2010, we used a portion of our with an LPN of 2 and 3 to determine the progress is being made to add and funding to work on the actions next set of highest priority candidate remove qualified species to and from described above for listing actions species. Finally, proposed rules for the Lists of Endangered and Threatened related to foreign species. In FY 2011, reclassification of threatened species to Wildlife and Plants. As with our we allocated $500,000 for work on endangered are lower priority, because ‘‘precluded’’ finding, the evaluation of listing actions for foreign species, which as listed species, they are already whether progress in adding qualified reduced funding available for domestic afforded the protections of the ESA and species to the Lists has been expeditious listing actions. Although there are no implementing regulations. However, for is a function of the resources available foreign species issues included in our efficiency reasons, we may choose to for listing and the competing demands high-priority listing actions (these are work on a proposed rule to reclassify a for those funds. (Although we do not accounted for separately in the Annual species to endangered if we can discuss it in detail here, we are also Notice of Review for foreign species combine this with work that is subject making expeditious progress in published on May 3, 2011 (76 FR to a court-determined deadline. removing species from the list under the 25150)), many actions had statutory or With our workload so much bigger Recovery program in light of the court-approved settlement deadlines, than the amount of funds we have to resource available for delisting, which is thus increasing their priority. The accomplish it, it is important that we be funded by a separate line item in the budget allocations for each specific as efficient as possible in our listing budget of the Endangered Species listing action are identified in the process. Therefore, as we work on Program. During FY 2011, we have Service’s FY 2011 Allocation Table (part proposed rules for the highest priority completed delisting rules for three of our record). species in the next several years, we are species.) Given the limited resources Because of the large number of high- preparing multi-species proposals when available for listing, we find that we priority species, we further ranked the appropriate, and these may include made expeditious progress in FY 2011 candidate species with an LPN of 2 by species with lower priority if they in the Listing Program. This progress using the following extinction-risk type overlap geographically or have the same included preparing and publishing the criteria: International Union for the threats as a species with an LPN of 2. following determinations:

FY 2011 COMPLETED LISTING ACTIONS

Publication date Title Actions FR pages

10/6/2010 ...... Endangered Status for the Altamaha Proposed Listing Endangered ...... 75 FR 61664–61690 Spinymussel and Designation of Critical Habitat. 10/7/2010 ...... 12-Month Finding on a Petition to list the Notice of 12-Month petition finding, Not 75 FR 62070–62095 Sacramento Splittail as Endangered or warranted. Threatened. 10/28/2010 ...... Endangered Status and Designation of Proposed Listing Endangered (uplisting) ... 75 FR 66481–66552 Critical Habitat for Spikedace and Loach Minnow. 11/2/2010 ...... 90-Day Finding on a Petition to List the Notice of 90-day Petition Finding, Not sub- 75 FR 67341–67343 Bay Springs Salamander as Endan- stantial. gered. 11/2/2010 ...... Determination of Endangered Status for Final Listing Endangered ...... 75 FR 67511–67550 the Georgia Pigtoe Mussel, Interrupted Rocksnail, and Rough Hornsnail and Designation of Critical Habitat. 11/2/2010 ...... Listing the Rayed Bean and Snuffbox as Proposed Listing Endangered ...... 75 FR 67551–67583 Endangered.

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FY 2011 COMPLETED LISTING ACTIONS—Continued

Publication date Title Actions FR pages

11/4/2010 ...... 12-Month Finding on a Petition to List Notice of 12-month petition finding, War- 75 FR 67925–67944 Cirsium wrightii (Wright’s Marsh Thistle) ranted but precluded. as Endangered or Threatened. 12/14/2010 ...... Endangered Status for Dunes Sagebrush Proposed Listing Endangered ...... 75 FR 77801–77817 Lizard. 12/14/2010 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 75 FR 78029–78061 North American Wolverine as Endan- ranted but precluded. gered or Threatened. 12/14/2010 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 75 FR 78093–78146 Sonoran Population of the Desert Tor- ranted but precluded. toise as Endangered or Threatened. 12/15/2010 ...... 12-Month Finding on a Petition to List As- Notice of 12-Month petition finding, War- 75 FR 78513–78556 tragalus microcymbus and Astragalus ranted but precluded. schmolliae as Endangered or Threat- ened. 12/28/2010 ...... Listing Seven Brazilian Bird Species as Final Listing Endangered ...... 75 FR 81793–81815 Endangered Throughout Their Range. 1/4/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-day Petition Finding, Not sub- 76 FR 304–311 Red Knot subspecies Calidris canutus stantial. roselaari as Endangered. 1/19/2011 ...... Endangered Status for the Sheepnose Proposed Listing Endangered ...... 76 FR 3392–3420 and Spectaclecase Mussels. 2/10/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 76 FR 7634–7679 Pacific Walrus as Endangered or ranted but precluded. Threatened. 2/17/2011 ...... 90-Day Finding on a Petition To List the Notice of 90-day Petition Finding, Sub- 76 FR 9309–9318 Sand Verbena Moth as Endangered or stantial. Threatened. 2/22/2011 ...... Determination of Threatened Status for Final Listing Threatened ...... 76 FR 9681–9692 the New Zealand-Australia Distinct Pop- ulation Segment of the Southern Rockhopper Penguin. 2/22/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, War- 76 FR 9722–9733 Solanum conocarpum (marron bacora) ranted but precluded. as Endangered. 2/23/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, Not 76 FR 9991–10003 Thorne’s Hairstreak Butterfly as Endan- warranted. gered. 2/23/2011 ...... 12-Month Finding on a Petition to List As- Notice of 12-Month petition finding, War- 76 FR 10166–10203 tragalus hamiltonii, Penstemon flowersii, ranted but precluded & Not Warranted. Eriogonum soredium, Lepidium ostleri, and Trifolium friscanum as Endangered or Threatened. 2/24/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-day Petition Finding, Not sub- 76 FR 10299–10310 Wild Plains Bison or Each of Four Dis- stantial. tinct Population Segments as Threat- ened. 2/24/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-day Petition Finding, Not sub- 76 FR 10310–10319 Unsilvered Fritillary Butterfly as Threat- stantial. ened or Endangered. 3/8/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 76 FR 12667–12683 Mt. Charleston Blue Butterfly as Endan- ranted but precluded. gered or Threatened. 3/8/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-day Petition Finding, Sub- 76 FR 12683–12690 Texas Kangaroo Rat as Endangered or stantial. Threatened. 3/10/2011 ...... Initiation of Status Review for Longfin Notice of Status Review ...... 76 FR 13121–13122 Smelt. 3/15/2011 ...... Withdrawal of Proposed Rule to List the Proposed rule withdrawal ...... 76 FR 14210–14268 Flat-tailed Horned Lizard as Threatened. 3/15/2011 ...... Proposed Threatened Status for the Chiri- Proposed Listing Threatened; Proposed 76 FR 14126–14207 cahua Leopard Frog and Proposed Des- Designation of Critical Habitat. ignation of Critical Habitat. 3/22/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 76 FR 15919–15932 Berry Cave Salamander as Endangered. ranted but precluded. 4/1/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 18138–18143 Spring Pygmy Sunfish as Endangered. stantial. 4/5/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 18684–18701 Bearmouth Mountainsnail, Byrne Resort Warranted and Warranted but precluded. Mountainsnail, and Meltwater Lednian Stonefly as Endangered or Threatened.

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FY 2011 COMPLETED LISTING ACTIONS—Continued

Publication date Title Actions FR pages

4/5/2011 ...... 90-Day Finding on a Petition To List the Notice of 90-Day Petition Finding, Sub- 76 FR 18701–18706 Peary Caribou and Dolphin and Union stantial. population of the Barren-ground Caribou as Endangered or Threatened. 4/12/2011 ...... Proposed Endangered Status for the Proposed Listing Endangered; Proposed 76 FR 20464–20488 Three Forks Springsnail and San Designation of Critical Habitat. Bernardino Springsnail, and Proposed Designation of Critical Habitat. 4/13/2011 ...... 90-Day Finding on a Petition To List Notice of 90-Day Petition Finding, Sub- 76 FR 20613–20622 Spring Mountains Acastus Checkerspot stantial. Butterfly as Endangered. 4/14/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 20911–20918 Prairie Chub as Threatened or Endan- stantial. gered. 4/14/2011 ...... 12-Month Finding on a Petition to List Her- Notice of 12-Month petition finding, War- 76 FR 20918–20939 mes Copper Butterfly as Endangered or ranted but precluded. Threatened. 4/26/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 23256–23265 Arapahoe Snowfly as Endangered or stantial. Threatened. 4/26/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Not 76 FR 23265–23271 Smooth-Billed Ani as Threatened or En- substantial. dangered. 5/12/2011 ...... Withdrawal of the Proposed Rule to List Proposed Rule, Withdrawal ...... 76 FR 27756–27799 the Mountain Plover as Threatened. 5/25/2011 ...... 90-Day Finding on a Petition To List the Notice of 90-Day Petition Finding, Sub- 76 FR 30082–30087 Spot-tailed Earless Lizard as Endan- stantial. gered or Threatened. 5/26/2011 ...... Listing the Salmon-Crested Cockatoo as Final Listing Threatened ...... 76 FR 30758–30780 Threatened Throughout its Range with Special Rule. 5/31/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, War- 76 FR 31282–31294 Puerto Rican Harlequin Butterfly as En- ranted but precluded. dangered. 6/2/2011 ...... 90-Day Finding on a Petition to Reclassify Notice of 90-Day Petition Finding, Sub- 76 FR 31903–31906 the Straight-Horned Markhor (Capra stantial. falconeri jerdoni) of Torghar Hills as Threatened. 6/2/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 31920–31926 Golden-winged Warbler as Endangered stantial. or Threatened. 6/7/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 76 FR 32911–32929 Striped Newt as Threatened. ranted but precluded. 6/9/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, Not 76 FR 33924–33965 Abronia ammophila, Agrostis rossiae, Warranted and Warranted but precluded. Astragalus proimanthus, Boechera (Arabis) pusilla, and Penstemon gibbensii as Threatened or Endangered. 6/21/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Not 76 FR 36049–36053 Utah Population of the Gila Monster as substantial. an Endangered or a Threatened Distinct Population Segment. 6/21/2011 ...... Revised 90-Day Finding on a Petition To Notice of 90-day Petition Finding, Not sub- 76 FR 36053–36068 Reclassify the Utah Prairie Dog From stantial. Threatened to Endangered. 6/28/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, Not 76 FR 37706–37716 Castanea pumila var. ozarkensis as warranted. Threatened or Endangered. 6/29/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 38095–38106 Eastern Small-Footed Bat and the stantial. Northern Long-Eared Bat as Threatened or Endangered. 6/30/2011 ...... 12-Month Finding on a Petition to List a Notice of 12-Month petition finding, Not 76 FR 38504–38532 Distinct Population Segment of the Fish- warranted. er in Its United States Northern Rocky Mountain Range as Endangered or Threatened with Critical Habitat. 7/12/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 40868–40871 Bay Skipper as Threatened or Endan- stantial. gered.

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FY 2011 COMPLETED LISTING ACTIONS—Continued

Publication date Title Actions FR pages

7/19/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, War- 76 FR 42631–42654 Pinus albicaulis as Endangered or ranted but precluded. Threatened with Critical Habitat. 7/19/2011 ...... Petition To List Grand Canyon Cave Notice of 12-Month petition finding, Not 76 FR 42654–42658 Pseudoscorpion. warranted. 7/26/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 44547–44564 Giant Palouse Earthworm (Drilolerius warranted. americanus) as Threatened or Endan- gered. 7/26/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 44566–44569 Frigid Ambersnail as Endangered. warranted. 7/27/2011 ...... Determination of Endangered Status for Final Listing Endangered, Threatened ...... 76 FR 45054–45075 Ipomopsis polyantha (Pagosa Sky- rocket) and Threatened Status for Penstemon debilis (Parachute Beardtongue) and Phacelia submutica (DeBeque Phacelia). 7/27/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, War- 76 FR 45130–45162 Gopher Tortoise as Threatened in the ranted but precluded. Eastern Portion of its Range. 8/2/2011 ...... Proposed Endangered Status for the Proposed Listing Endangered ...... 76 FR 46218–46234 Chupadera Springsnail (Pyrgulopsis chupaderae) and Proposed Designation of Critical Habitat. 8/2/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Not 76 FR 46238–46251 Straight Snowfly and Idaho Snowfly as substantial. Endangered. 8/2/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 46251–46266 Redrock Stonefly as Endangered or warranted. Threatened. 8/2/2011 ...... Listing 23 Species on Oahu as Endan- Proposed Listing Endangered ...... 76 FR 46362–46594 gered and Designating Critical Habitat for 124 Species. 8/4/2011 ...... 90-Day Finding on a Petition To List Six Notice of 90-Day Petition Finding, Not 76 FR 47123–47133 Sand Dune Beetles as Endangered or substantial and substantial. Threatened. 8/9/2011 ...... Endangered Status for the Cumberland Final Listing Endangered ...... 76 FR 48722–48741 Darter, Rush Darter, Yellowcheek Dart- er, Chucky Madtom, and Laurel Dace. 8/9/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 48777–48788 Nueces River and Plateau Shiners as warranted. Threatened or Endangered. 8/9/2011 ...... Four Foreign Parrot Species [crimson Proposed Listing Endangered and Threat- 76 FR 49202–49236 shining parrot, white cockatoo, Phil- ened; Notice of 12-Month petition find- ippine cockatoo, yellow-crested ing, Not warranted. cockatoo]. 8/10/2011 ...... Proposed Listing of the Miami Blue But- Proposed Listing Endangered Similarity of 76 FR 49408–49412 terfly as Endangered, and Proposed Appearance. Listing of the Cassius Blue, Ceraunus Blue, and Nickerbean Blue Butterflies as Threatened Due to Similarity of Appear- ance to the Miami Blue Butterfly. 8/10/2011 ...... 90-Day Finding on a Petition To List the Notice of 90-Day Petition Finding, Sub- 76 FR 49412–49417 Saltmarsh Topminnow as Threatened or stantial. Endangered Under the Endangered Species Act. 8/10/2011 ...... Emergency Listing of the Miami Blue But- Emergency Listing Endangered and Simi- 76 FR 49542–49567 terfly as Endangered, and Emergency larity of Appearance. Listing of the Cassius Blue, Ceraunus Blue, and Nickerbean Blue Butterflies as Threatened Due to Similarity of Appear- ance to the Miami Blue Butterfly. 8/11/2011 ...... Listing Six Foreign Birds as Endangered Final Listing Endangered ...... 76 FR 50052–50080 Throughout Their Range. 8/17/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 50971–50979 Leona’s Little Blue Butterfly as Endan- stantial. gered or Threatened. 9/01/2011 ...... 90-Day Finding on a Petition to List All Notice of 90-Day Petition Finding, Sub- 76 FR 54423–54425 Chimpanzees (Pan troglodytes) as En- stantial. dangered.

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FY 2011 COMPLETED LISTING ACTIONS—Continued

Publication date Title Actions FR pages

9/6/2011 ...... 12-Month Finding on Five Petitions to List Notice of 12-Month petition finding, War- 76 FR 55170–55203 Seven Species of Hawaiian Yellow- ranted but precluded. faced Bees as Endangered. 9/8/2011 ...... 12-Month Petition Finding and Proposed Notice of 12-Month petition finding, War- 76 FR 55623–55638 Listing of Arctostaphylos franciscana as ranted; Proposed Listing Endangered. Endangered. 9/8/2011 ...... 90-Day Finding on a Petition To List the Notice of 90-Day Petition Finding, Not 76 FR 55638–55641 Snowy Plover and Reclassify the Win- substantial. tering Population of Piping Plover. 9/13/2011 ...... 90-Day Finding on a Petition To List the Notice of 90-Day Petition Finding, Sub- 76 FR 56381–56391 Franklin’s Bumble Bee as Endangered. stantial. 9/13/2011 ...... 90-Day Finding on a Petition to List 42 Notice of 90-Day Petition Finding, Sub- 76 FR 56608–56630 Great Basin and Mojave Desert stantial and Not substantial. Springsnails as Threatened or Endan- gered with Critical Habitat. 9/21/2011 ...... 12-Month Finding on a Petition to List Van Notice of 12-Month petition finding, Not 76 FR 58650–58680 Rossem’s Gull-billed Tern as Endan- warranted. gered or Threatened. 9/22/2011 ...... Determination of Endangered Status for Final Listing Endangered ...... 76 FR 58954–58998 Casey’s June Beetle and Designation of Critical Habitat. 9/27/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 59623–59634 Tamaulipan Agapema, Sphingicampa warranted. blanchardi (no common name), and Ursia furtiva (no common name) as En- dangered or Threatened. 9/27/2011 ...... Partial 90-Day Finding on a Petition to List Notice of 90-Day Petition Finding, Sub- 76 FR 59836–59862 404 Species in the Southeastern United stantial. States as Endangered or Threatened With Critical Habitat. 9/29/2011 ...... 90-Day Finding on a Petition to List the Notice of 90-Day Petition Finding, Sub- 76 FR 60431–60444 American Eel as Threatened. stantial. 10/4/2011 ...... 12-Month Finding on a Petition to List the Notice of 12-Month petition finding, Not 76 FR 61298–61307 Lake Sammamish Kokanee Population warranted. of Oncorhynchus nerka as an Endan- gered or Threatened Distinct Population Segment. 10/4/2011 ...... 12-Month Finding on a Petition to List Notice of 12-Month petition finding, Not 76 FR 61307–61321 Calopogon oklahomensis as Threatened warranted. or Endangered. 10/4/2011 ...... 12-Month Finding on a Petition To List the Notice of 12-Month petition finding, Not 76 FR 61321–61330 Amargosa River Population of the Mo- warranted. jave Fringe-toed Lizard as an Endan- gered or Threatened Distinct Population Segment. 10/4/2011 ...... Endangered Status for the Alabama Proposed Listing Endangered ...... 76 FR 61482–61529 Pearlshell, Round Ebonyshell, Southern Sandshell, Southern Kidneyshell, and Choctaw Bean, and Threatened Status for the Tapered Pigtoe, Narrow Pigtoe, and Fuzzy Pigtoe; with Critical Habitat. 10/4/2011 ...... 90-Day Finding on a Petition To List 10 Notice of 90-Day Petition Finding, Sub- 76 FR 61532–61554 Subspecies of Great Basin Butterflies as stantial and Not substantial. Threatened or Endangered with Critical Habitat.

Our expeditious progress also statutory timelines, that is, timelines a lower priority if they overlap included work on listing actions that we required under the ESA. Actions in the geographically or have the same threats funded in FY 2010 and FY 2011 but bottom section of the table are high- as the species with the high priority. have not yet been completed to date. priority listing actions. These actions Including these species together in the These actions are listed below. Actions include work primarily on species with same proposed rule results in in the top section of the table are being an LPN of 2, and, as discussed above, considerable savings in time and conducted under a deadline set by a selection of these species is partially funding, compared to preparing separate court. Actions in the middle section of based on available staff resources, and proposed rules for each of them in the the table are being conducted to meet when appropriate, include species with future.

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ACTIONS FUNDED IN FY 2010 AND FY 2011 BUT NOT YET COMPLETED

Species Action

Actions Subject to Court Order/Settlement Agreement

4 parrot species (military macaw, yellow-billed parrot, red-crowned parrot, scarlet macaw) 5 ...... 12-month petition finding. 4 parrot species (blue-headed macaw, great green macaw, grey-cheeked parakeet, hyacinth 12-month petition finding. macaw) 5. Longfin smelt ...... 12-month petition finding.

Actions With Statutory Deadlines

5 Bird species from Colombia and Ecuador ...... Final listing determination. Queen Charlotte goshawk ...... Final listing determination. Ozark hellbender 4 ...... Final listing determination. Altamaha spinymussel 3 ...... Final listing determination. 6 Birds from Peru & Bolivia ...... Final listing determination. Loggerhead sea turtle (assist National Marine Fisheries Service) 5 ...... Final listing determination. 2 mussels (rayed bean (LPN = 2), snuffbox No LPN) 5 ...... Final listing determination. CA golden trout 4 ...... 12-month petition finding. Black-footed albatross ...... 12-month petition finding. Cactus ferruginous pygmy-owl 1 ...... 12-month petition finding. Northern leopard frog ...... 12-month petition finding. Tehachapi slender salamander ...... 12-month petition finding. Coqui Llanero ...... 12-month petition finding/Proposed list- ing. Dusky tree vole ...... 12-month petition finding. Leatherside chub (from 206 species petition) ...... 12-month petition finding. Platte River caddisfly (from 206 species petition) 5 ...... 12-month petition finding. 3 South Arizona plants (Erigeron piscaticus, Astragalus hypoxylus, Amoreuxia gonzalezii) (from 475 12-month petition finding. species petition). 5 Central Texas mussel species (3 from 475 species petition) ...... 12-month petition finding. 14 parrots (foreign species) ...... 12-month petition finding. Mohave Ground Squirrel 1 ...... 12-month petition finding. Ashy storm-petrel 5 ...... 12-month petition finding. Honduran emerald ...... 12-month petition finding. Eagle Lake trout 1 ...... 90-day petition finding. 32 Pacific Northwest mollusks species (snails and slugs) 1 ...... 90-day petition finding. Spring Mountains checkerspot butterfly ...... 90-day petition finding. 11 of 404 Southeast species ...... 90-day petition finding. Aztec gilia 5 ...... 90-day petition finding. White-tailed ptarmigan 5 ...... 90-day petition finding. San Bernardino flying squirrel 5 ...... 90-day petition finding. Bicknell’s thrush 5 ...... 90-day petition finding. Sonoran talussnail 5 ...... 90-day petition finding. 2 AZ Sky Island plants (Graptopetalum bartrami & Pectis imberbis) 5 ...... 90-day petition finding. I’iwi 5 ...... 90-day petition finding. Humboldt marten ...... 90-day petition finding. Desert massasauga ...... 90-day petition finding. Western glacier stonefly (Zapada glacier) ...... 90-day petition finding. Thermophilic ostracod (Potamocypris hunteri) ...... 90-day petition finding. Sierra Nevada red fox 5 ...... 90-day petition finding. Boreal toad (eastern or southern Rocky Mtn population) 5 ...... 90-day petition finding. Alexander Archipelago wolf 5 ...... 90-day petition finding.

High-Priority Listing Actions

20 Maui-Nui candidate species 2 (17 plants, 3 tree snails) (14 with LPN = 2, 2 with LPN = 3, 3 with Proposed listing. LPN = 8). Umtanum buckwheat (LPN = 2) and white bluffs bladderpod (LPN = 9) 4 ...... Proposed listing. Grotto sculpin (LPN = 2) 4 ...... Proposed listing. 2 Arkansas mussels (Neosho mucket (LPN = 2) & Rabbitsfoot (LPN = 9)) 4 ...... Proposed listing. Diamond darter (LPN = 2) 4 ...... Proposed listing. Gunnison sage-grouse (LPN = 2) 4 ...... Proposed listing. Coral Pink Sand Dunes Tiger Beetle (LPN = 2) 5 ...... Proposed listing. Lesser prairie chicken (LPN = 2) ...... Proposed listing. 4 Texas salamanders (Austin blind salamander (LPN = 2), Salado salamander (LPN = 2), George- Proposed listing. town salamander (LPN = 8), Jollyville Plateau (LPN = 8)) 3. 5 West Texas aquatics (Gonzales Spring Snail (LPN = 2), Diamond Y springsnail (LPN = 2), Phantom Proposed listing. springsnail (LPN = 2), Phantom Cave snail (LPN = 2), Diminutive amphipod (LPN = 2)) 3. 2 Texas plants (Texas golden gladecress (Leavenworthia texana) (LPN = 2), Neches River rose-mal- Proposed listing. low (Hibiscus dasycalyx) (LPN = 2)) 3. 4 AZ plants (Acuna cactus (Echinomastus erectocentrus var. acunensis) (LPN = 3), Fickeisen plains Proposed listing. cactus (Pediocactus peeblesianus fickeiseniae) (LPN = 3), Lemmon fleabane (Erigeron lemmonii) (LPN = 8), Gierisch mallow (Sphaeralcea gierischii) (LPN = 2)) 5.

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ACTIONS FUNDED IN FY 2010 AND FY 2011 BUT NOT YET COMPLETED—Continued

Species Action

FL bonneted bat (LPN = 2) 3 ...... Proposed listing. 3 Southern FL plants (Florida semaphore cactus (Consolea corallicola) (LPN = 2), shellmound Proposed listing. applecactus (Harrisia (=Cereus) aboriginum (=gracilis)) (LPN = 2), Cape Sable thoroughwort (Chromolaena frustrata) (LPN = 2)) 5. 21 Big Island (HI) species 5 (includes 8 candidate species—6 plants & 2 animals; 4 with LPN = 2, 1 Proposed listing. with LPN = 3, 1 with LPN = 4, 2 with LPN = 8). 12 Puget Sound prairie species (9 subspecies of pocket gopher (Thomomys mazama ssp.) (LPN = 3), Proposed listing. streaked horned lark (LPN = 3), Taylor’s checkerspot (LPN = 3), Mardon skipper (LPN = 8)) 3. 2 TN River mussels (fluted kidneyshell (LPN = 2), slabside pearlymussel (LPN = 2)) 5 ...... Proposed listing. Jemez Mountain salamander (LPN = 2) 5 ...... Proposed listing. 1 Funds for listing actions for these species were provided in previous FYs. 2 Although funds for these high-priority listing actions were provided in FY 2008 or 2009, due to the complexity of these actions and competing priorities, these actions are still being developed. 3 Partially funded with FY 2010 funds and FY 2011 funds. 4 Funded with FY 2010 funds. 5 Funded with FY 2011 funds.

We also funded work on resubmitted endangered species. First, as the tables 10–377 (EGS), MDL Docket No. 2165 (D. petitions findings for 204 candidate above show, we are making expeditious DC May 10, 2011), and obtained the species (species petitioned prior to the progress by listing qualified species. In court’s approval. The Service has last CNOR). We did not include new FY 2011, we resolved the status of 29 already begun to implement that work information in our resubmitted petition species that we determined, or had plan, because we completed most of the finding for the Columbia Basin previously determined, qualified for work identified in the above tables in population of the greater sage-grouse in listing; for 27 of those 29 species, the accordance with the schedule set out in this notice, as the significance of the resolution was to add them to the lists that work plan. Columbia Basin DPS to the greater sage- of threatened and endangered species. We have endeavored to make our grouse will require further review and We also proposed to list an additional listing actions as efficient and timely as we will update our finding at a later 45 qualified species. possible, given the requirements of the date (see 75 FR 13910; March 23, 2010). Second, we are making expeditious relevant law and regulations, and We also did not include new progress by working on adding qualified constraints relating to workload and information in our resubmitted petition species to the lists. In FY 2011, we personnel. We are continually findings for the 64 candidate species for worked on developing final listing considering ways to streamline which we are preparing proposed listing determinations for an additional 17 processes or achieve economies of scale, determinations; see summaries below species, and proposed listing rules for such as by batching related actions regarding publication of these another 85 species. Although we have together. Given our limited budget for determinations (these species will not yet completed those actions, we are implementing section 4 of the ESA, the remain on the candidate list until a making expeditious progress towards actions described above collectively proposed listing rule is published). We doing so. constitute expeditious progress. also funded revised 12-month petition Third, we are making expeditious Although we have not been able to findings for the candidate species that progress to add qualified species to the resolve the listing status of many of the we are removing from candidate status, lists by identifying additional species candidates, several programs in the which are being published as part of that qualify for listing. In FY 2011, we Service contribute to the conservation of this CNOR (see Candidate Removals). completed 90-day petition findings for these species. In particular, the Because the majority of these species 480 species, and 12-month petition Candidate Conservation program, which were already candidate species prior to findings for 52 species. Of those 52 is separately budgeted, focuses on our receipt of a petition to list them, we species, we determined that listing of 26 providing technical expertise for had already assessed their status using of the species was warranted but developing conservation strategies and funds from our Candidate Conservation precluded. In FY 2011 we also worked agreements to guide voluntary on-the- Program. We also continue to monitor on 90-day findings for an additional 50 ground conservation work for candidate the status of these species through our species and 12-month findings for an and other at-risk species. The main goal Candidate Conservation Program. The additional 43 species. of this program is to address the threats cost of updating the species assessment Finally, the Service is making facing candidate species. Through this forms and publishing the joint expeditious progress to add qualified program, we work with our partners publication of the CNOR and species to the list by developing and (other Federal agencies, State agencies, resubmitted petition findings is shared beginning to implement a work plan Tribes, local governments, private between the Listing Program and the that establishes a framework and landowners, and private conservation Candidate Conservation Program. schedule for resolving by September 30, organizations) to address the threats to During FY 2011, we also funded work 2016, the status of all of the species that candidate species and other species at- on resubmitted petition findings for the Service had determined to be risk. We are currently working with our uplisting two listed species, for which qualified as of the 2010 Candidate partners to implement voluntary petitions were previously received. Notice of Review. The Service conservation agreements for more than Given the limited resources available submitted such a work plan to the U.S. 140 species covering 5 million acres of for listing, we find that we are making District Court for the District of habitat. In some instances, the sustained expeditious progress to add qualified Columbia in In re Endangered Species implementation of strategically species to the lists of threatened and Act Section 4 Deadline Litigation, No. designed conservation efforts

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culminates in making listing wide array of natural and human and Micronesia, and it is the only unnecessary for species that are factors: low population size, restricted insectivorous bat recorded from a large candidates for listing or for which range, low fecundity, large distances part of this area. The species as a whole listing has been proposed. between occupied locations, and small (E. semicaudata) occurred on several of number of occupied locations. Such the Caroline Islands (Palau, Chuuk, and Findings for Petitioned Candidate factors may make recolonization Pohnpei), Samoa (Independent and Species unlikely if any site is extirpated, and American), the Mariana Islands (Guam Below are updated summaries for may make the species vulnerable to and the Commonwealth of the Northern petitioned candidates for which we extinction due to genetic drift, Mariana Islands (CNMI)), Tonga, Fiji, published findings, under section inbreeding depression, extreme weather and Vanuatu. While populations appear 4(b)(3)(B). We are making continued events, and random or chance changes to be healthy in some locations, mainly warranted-but-precluded 12-month to the environment. Where the species in the Caroline Islands, they have findings on the petitions for these occurs in or near human dwellings or declined substantially in other areas, species (for our revised 12-month structures, it is at risk to persecution, including Independent and American petition findings for species we are removal, and disturbance. Disturbance Samoa, the Mariana Islands, Fiji, and removing from candidate status, see from humans, either intentional or possibly Tonga. Scientists recognize summaries above under ‘‘Candidate inadvertent, can take place at any of the four subspecies: E. s. rotensis, endemic Removals’’). occurrences of this bat on either private to the Mariana Islands (Guam and Mammals or conservation lands. Disturbance of CNMI); E. s. sulcata, occurring in Chuuk maternity roosts is of particular concern and Pohnpei; E. s. palauensis, found in Florida bonneted bat (Eumops due to the low fecundity and small Palau; and E. s. semicaudata, occurring floridanus)—The following summary is population of this species. Pesticide in American and Independent Samoa, based on information in our files. No applications may be affecting its Tonga, Fiji, and Vanuatu. This new information was presented in the foraging base, especially in coastal candidate assessment addresses the petition received on January 29, 2010. areas. distinct population segment (DPS) of E. Endemic to south Florida, this species Due to its overall vulnerability, s. semicaudata that occurs in American has been found at 12 locations, 5 on intense hurricanes are a significant Samoa. private land and 7 on public land. The threat; this threat is expected to E. s. semicaudata historically entire population may number less than continue or increase in the future. occurred in American and Independent a few hundred individuals. Results from Intense storms can cause mortality Samoa, Tonga, Fiji, and Vanuatu. It is a rangewide acoustical survey found a during the storm, exposure to predation extant in Fiji and Tonga, but may be small number of locations where calls immediately following the storm, loss of extirpated from Vanuatu and were recorded, and low numbers of calls roost sites, impacts on foraging areas Independent Samoa. There is some were recorded at each location. Few and insect abundance, and disruption of concern that it is also extirpated from active roost sites are known; all are the maternal period. Prolonged and American Samoa, the location of this artificial (i.e., bat houses). Prolonged repeated periods of cold temperatures DPS, where surveys are currently cold temperatures in January and may have severe impacts on the ongoing to ascertain its status. The February 2010 affected one active roost. population and increase risks from other factors that led to the decline of this Additional cold temperatures occurred threats by weakening individuals, subspecies and the DPS are poorly in south Florida in December 2010. In extirpating colonies, or further reducing understood; however, current threats to the short term, severe and prolonged colony sizes. Although disease is a this subspecies and the DPS include cold events resulted in mortality of at significant threat for other bat species, it habitat loss, predation by introduced least several adult Florida bonneted is not known to be a threat for the species, and its small population size bats. The long-term effects of prolonged Florida bonneted bat at this time. The and distribution, which make the taxon and repeated cold events on the species protection currently afforded the Florida extremely vulnerable to extinction due are not known. Efforts are underway to bonneted bat is limited, provides little to typhoons and similar natural confirm presence at all previously protection to the species’ occupied catastrophes. Thus, since the threats documented sites. Additionally, a study habitat, and includes no provisions to affect the entire DPS, and would likely to determine the northern and southern protect suitable but unoccupied habitat be permanent, the threats are high in extent of the species’ range and estimate within the vicinity of known colony magnitude. The Pacific sheath-tailed bat overall abundance was initiated in 2011. sites. Overall, we find the magnitude of may also be susceptible to disturbance Occurrences are threatened by loss threats is high due to the severity of the to roosting caves. The LPN for E. s. and conversion of habitat to other uses threats to this species. We find that most semicaudata is 3 because the magnitude and habitat alteration (e.g., removal of of the threats are currently occurring of the threats is high; the threats are old trees with cavities, removal of and, consequently, overall, threats are ongoing, and therefore imminent; and manmade structures with suitable imminent. Therefore, we assigned an the taxon is a distinct population roosting sites); this threat is expected to LPN of 2 to this species. segment of a subspecies. continue and increase. Although Pacific sheath-tailed bat, American Pacific sheath-tailed bat (Emballonura occurrences on conservation lands are Samoa DPS (Emballonura semicaudata semicaudata rotensis), Guam and the inherently more protected than those on semicaudata)—The following summary Commonwealth of the Northern Mariana private lands, habitat alteration during is based on information contained in Islands (CNMI)—The following management practices may affect our files. No new information was summary is based on information natural roosting sites even on provided in the petition we received on contained in our files. No new conservation lands if Florida bonneted May 11, 2004. This small bat is a information was provided in the bats are present but undetected. member of the Emballonuridae, an Old petition we received on May 11, 2004. Therefore, occupied and potential World bat family that has an extensive This small bat is a member of the habitat on forested or wooded lands, distribution, primarily in the tropics. Emballonuridae, an Old World bat both private and public, continues to be The Pacific sheath-tailed bat was once family that has an extensive at risk. The species is vulnerable to a common and widespread in Polynesia distribution, primarily in the tropics.

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The Pacific sheath-tailed bat was once the NEC has declined substantially, and historical range, the fisher is believed to common and widespread in Polynesia occurrences have become increasingly be extirpated or reduced to scattered and Micronesia, and it is the only separated. The species’ distribution is individuals from the lower mainland of insectivorous bat recorded from a large fragmented into five apparently isolated British Columbia through Washington part of this area. E. s. rotensis is metapopulations. The area occupied by and northern Oregon and in the central historically known from the Mariana the cottontail has contracted from and northern Sierra Nevada in Islands and formerly occurred on Guam approximately 90,000 sq km to 12,180 California. Native extant populations of and in the CNMI on Rota, Aguiguan, sq km. Surveys indicate that the long- fisher are isolated to the North Coast of Tinian (known from prehistoric records term decline in NEC continues. For California, the Klamath-Siskiyou only), Saipan, and possibly Anatahan example, surveys for the species in 2009 Mountains of northern California and and Maug. Currently, E. s. rotensis documented the presence of NEC in southern Oregon, and the southern appears to be extirpated from all but one only 7 of the 23 New Hampshire Sierra Nevada in California. island in the Mariana archipelago. The locations that were known to be Descendents of a fisher reintroduction single remaining population of this occupied in 2002 and 2003. Similarly, effort also occur in the southern subspecies occurs on Aguiguan, CNMI. surveys in Maine found the species no Cascades in Oregon. The Washington Threats to this subspecies have not longer present in 9 of the 19 towns Department of Fish and Wildlife in changed over the past year. The primary identified in an extensive survey that conjunction with the Olympic National threats to the subspecies are ongoing spanned the years 2000 to 2004. Similar Park has completed the third year of a habitat loss and degradation as a result surveys were conducted during the reintroduction effort as the State’s first of feral goat (Capra hircus) activity on winter of 2010–2011 in Rhode Island, step in implementing their recovery the island of Aguiguan and the taxon’s but the results are not yet available. goals for fisher. The California small population size and limited Rangewide, it is estimated that less than Department of Fish and Game and other distribution. Predation by nonnative one third of the occupied sites occur on collaborators are in the second year of species and human disturbance are also lands in conservation status and fewer their translocation efforts into the potential threats to the subspecies. The than 10 percent are being managed for northern Sierra Nevada. Both of the subspecies is believed near the point early-successional forest species. reintroduction efforts still need several where stochastic events, such as The primary threat to the NEC is loss years to determine if populations are typhoons, are increasingly likely to of habitat through succession and successfully established. Estimates of affect its continued survival. The alteration. Isolation of occupied patches fisher numbers in native populations of disappearance of the remaining by areas of unsuitable habitat and high the West Coast DPS vary widely. A population on Aguiguan would result in predation rates are resulting in local rigorous monitoring program is lacking the extinction of the subspecies. Thus, extirpation of NECs from small patches. for the northern California-southwestern since the threats affect the entire The range of the NEC has contracted by Oregon and southern Oregon Cascades subspecies, and would likely be 75 percent or more since 1960, and populations, making estimates of fisher permanent, the threats are high in current land uses in the region indicate numbers for these two populations magnitude. The LPN for E. s. rotensis that the rate of change, about 2 percent difficult. The fisher monitoring program remains at 3 because the magnitude of range loss per year, will continue. in the southern Sierra Nevada the threats is high; the threats are Additional threats include competition population has provided preliminary ongoing, and therefore imminent; and for food and habitat with introduced estimates indicating no decline in the the taxon is a subspecies. eastern cottontails and large numbers of index of abundance within the New England cottontail (Sylvilagus native white-tailed deer, inadequate monitored portion of the population. transitionalis)—The following summary regulatory mechanisms to protect The two populations of native fisher in is based on information contained in habitat, and mortality from predation. the northern California southern Oregon our files and information received in The magnitude of the threats continues and southern Sierra Nevada are response to our notice published on to be high, because they occur separated by four times the species’ June 30, 2004, when we announced our rangewide and have a negative effect on maximum dispersal distance. The extant 90-day petition finding and initiation of the survival of the species. The threats fisher populations are either small a status review (69 FR 39395). We are imminent because they are ongoing. (southern Sierra Nevada and southern received the petition on August 30, Thus, we retained an LPN of 2 for this 2000. species. Conservation measures that Oregon Cascades) or isolated from one The New England cottontail (NEC) is address the threats to the species are another or both. a medium- to large-sized cottontail being developed. Major threats that fragment or remove rabbit that may reach 1,000 grams in Fisher, West Coast DPS (Martes key elements of fisher habitat include weight, and is one of two species within pennanti)—The following summary is various forest vegetation management the genus Sylvilagus occurring in New based on information in our files and in practices such as timber harvest and England. NEC is considered a habitat the Service’s initial warranted-but- fuels reduction treatments. Other specialist, in so far as it is dependent precluded finding published in the potential major threats in portions of the upon early-successional habitats Federal Register on April 8, 2004 (69 FR range include: Large stand-replacing typically described as thickets. The 18770). The fisher is a carnivore in the wildfires, changes in forest composition species is the only endemic cottontail in family Mustelidae, and is the largest and structure related to the effects of New England. Historically, the NEC member of the genus Martes. climate change, forest and fuels occurred in seven States and ranged Historically, the West Coast population management, and urban and rural from southeastern New York (east of the of the fisher extended south from British development. Threats to fishers that Hudson River) north through the Columbia into western Washington and lead to direct mortality and injury Champlain Valley, southern Vermont, Oregon, and in the North Coast Ranges, include: Collisions with vehicles; the southern half of New Hampshire, Klamath-Siskiyou Mountains, and predation; rodenticides; and viral borne and southern Maine and south Sierra Nevada in California. Because of diseases such as rabies, parvovirus, and throughout Massachusetts, Connecticut, a lack of detections with standardized canine distemper. Existing regulatory and Rhode Island. The current range of survey efforts over much of the fisher’s mechanisms on Federal, State, and

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private lands do not provide sufficient continue to find that listing this species challenged by WildEarth Guardians in protection for the key elements of fisher is warranted but precluded as of the September of 2008. On September 30, habitat, or the certainty that date of publication of this notice. 2010, the Court set aside our 2008 conservation efforts will be effective or However, we are working on a proposed finding and remanded the matter back implemented. The magnitude of threats listing rule that we expect to publish to us for further action. The Court found is high as they occur across the range of prior to making the next annual that we arbitrarily and capriciously the DPS resulting in negative impacts on resubmitted petition 12-month finding. ‘‘determined that something other than fisher distribution and abundance. Canada lynx, within the State of New a species was an endangered or However, the threats are nonimminent Mexico (Lynx canadensis)—In our threatened species which warranted as the greatest long-term risks to the finding of December 17, 2009 (74 FR listing.’’ fisher in its west coast range are the 66937), we determined that adding the In response to the decision of the subsequent ramifications of the isolation lynx in New Mexico to the listing of the Court, we will reevaluate the status of of small populations and their lynx DPS was warranted, because the the Gunnison’s prairie dog and deliver interactions with the listed threats. lynx is now present in the state as a a revised 12-month finding to the Therefore, we assigned an LPN of 6 to result of the Colorado reintroduction Federal Register. However, we are this DPS. effort, and we assigned an LPN of 12 to currently unable to complete a status New Mexico meadow jumping mouse amending the listing of lynx to include review due to budget and workload (Zapus hudsonius luteus)—The New Mexico. We reconfirm that limitations. Furthermore, initiating a following summary is based on assigning an LPN of 12 is appropriate revised status review for the species information contained in our files and based on nonimminent threats of a low would be premature at this time because the petition we received on October 15, magnitude. The threats to the lynx in of a significant ongoing genetics study 2008. The New Mexico meadow New Mexico from human-caused initiated by the Colorado Division of jumping mouse (jumping mouse) is mortality are low in magnitude, because Wildlife (CDOW) addressing Gunnison’s endemic to New Mexico, Arizona, and they do not occur at a level that creates prairie dog taxonomy. CDOW indicates a small area of southern Colorado. The a significant threat to the lynx DPS in preliminarily that this work strongly jumping mouse nests in dry soils but the contiguous United States. We do not supports the existence of genetic uses moist, streamside, dense, riparian/ consider lynx in New Mexico, or its differences between Gunnison’s prairie wetland vegetation. Recent genetic habitat in New Mexico, to be essential dogs in the montane and prairie studies confirm that the New Mexico to the survival or recovery of the DPS; portions of its range indicating that they meadow jumping mouse is a distinct as a result, neither human-caused may constitute two putative subspecies. subspecies from other Zapus hudsonius mortality nor habitat modification in We anticipate the analysis of these data subspecies, confirming the currently New Mexico occurs at a level such that will likely be completed by the fall of accepted subspecies designation. it creates a significant threat to the lynx 2011 and we will evaluate the The threats that have been identified DPS in the contiguous United States. information thereafter. It is critical for are excessive grazing pressure, water Potential impacts to the habitat in New us to consider this potentially use and management, highway Mexico have not been documented to significant taxonomic revision in our reconstruction, development, recreation, threaten lynx, either in New Mexico or revised status review after the CDOW and beaver removal. outside of it. The amount of suitable releases its final genetics report. Since the early to mid-1990s, over 100 habitat for lynx in New Mexico is Gunnison’s prairie dogs will remain a historical localities have been surveyed. considered negligible relative to the candidate within the montane portion of Currently only 25 are believed to be amount of habitat within the listed their range until we complete this extant including 1 in Colorado, 11 in range, and the majority of lynx habitats analysis. New Mexico (including one that is within the contiguous United States are Southern Idaho ground squirrel contiguous with another Colorado already protected by the Act. The (Spermophilus brunneus endemicus)— locality), and 13 in Arizona. Moreover, threats are also nonimminent, because The following summary is based on the highly fragmented nature of its they occur infrequently. Because lynx in information contained in our files. No distribution is also a major contributor the lower 48 are already listed as a DPS new information was provided in the to the vulnerability of this species and and conditions affecting the lynx in petition we received on May 11, 2004. increases the likelihood of very small, New Mexico are neither imminent nor The southern Idaho ground squirrel is isolated populations being extirpated. of sufficient magnitude to pose a threat endemic to four counties in southwest The insufficient number of secure to the lynx DPS throughout the Idaho; its total known range is populations, and the destruction, contiguous United States, the approximately 426,000 hectares modification, or curtailment of its appropriate LPN for this level of (1,050,000 acres). Threats to southern habitat, continue to pose the most magnitude and immediacy of threats is Idaho ground squirrels include: Habitat immediate threats to this species. 12. degradation and fragmentation; direct Because the threats affect the jumping Gunnison’s prairie dog (Cynomys killing from shooting, trapping, or mouse in all but two of the extant gunnisoni)—Gunnison’s prairie dogs poisoning; predation; competition with localities, and the populations are small occur in Arizona, Colorado, New Columbian ground squirrels; and and fragmented, the impact of the Mexico, and Utah. In our February 5, inadequacy of existing regulatory threats on the species is of high severity. 2008, 12-month finding (73 FR 6660), mechanisms. Habitat degradation and Thus, the threats are of a high we determined that listing the Gunnison fragmentation appear to be the primary magnitude. These threats are currently prairie dog was warranted but threats to the species. Nonnative occurring and, therefore, are imminent. precluded, with an LPN of 6, due to annuals now dominate much of this Thus, we continue to assign an LPN of threats in a significant portion of its species’ range, have changed the species 3 to this subspecies. range—the montane portion of the composition of vegetation used as forage Mazama pocket gopher (Thomomys species’ range within Colorado and New for the southern Idaho ground squirrel, mazama ssp. couchi, douglasii, Mexico—where the effects from plague and have altered the fire regime by glacialis, louiei, melanops, pugetensis, and other factors threaten those accelerating the frequency of wildfire. tacomensis, tumuli, yelmensis) — We populations. This finding was Nonnative annuals do not provide

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consistent forage quality for southern Washington ground squirrel habitat in habitats. Wolverines naturally occur at Idaho ground squirrels as compared to portions of its range. Throughout much low densities, and require cold areas the native vegetation. Habitat of its range, Washington ground that maintain deep, persistent snow deterioration, destruction, and squirrels are threatened by the cover into the warm season for fragmentation contribute to the current establishment and spread of invasive successful denning. Within the patchy distribution of southern Idaho plant species, particularly cheatgrass, contiguous United States, which ground squirrels. However, some which alter available cover and food constitutes a DPS, wolverine habitat is human-altered landscapes, such as golf quantity and quality, and increase fire restricted to high-elevation areas in the courses and row crops of alfalfa, seem intervals. Additional threats include West. Their current distribution to provide habitat sufficient to maintain habitat fragmentation, recreational includes functioning populations in the high densities of southern Idaho ground shooting, genetic isolation and drift, and North Cascades Mountains and the squirrels. predation. Potential threats include northern Rocky Mountains, as well as Two candidate conservation disease, drought, and possible populations that have not yet agreements with assurances (CCAAs) competition with related species in reestablished in the southern Rocky have been completed for this species. disturbed habitat at the periphery of Mountains and the Sierra Nevada. The Both CCAAs include conservation their range. In Oregon, some threats are primary threat to this DPS is from measures that minimize ground- being addressed as a result of the State habitat and range loss due to climate disturbing activities, allow for the listing of this species, and by warming. Climate changes are predicted investigation of methods to restore implementation of the Threemile to reduce wolverine habitat and range currently degraded habitat, provide Canyon Farms Multi-Species CCAA. In by 23 percent over the next 30 years, additional protection to southern Idaho Washington, there are currently no and 63 percent over the next 75 years, ground squirrels from recreational formal agreements with private rendering remaining habitat shooting and other direct killing on landowners or with State or Federal significantly smaller and more enrolled lands, and also allow for the agencies to protect the Washington fragmented. This increased translocation of squirrels to or from ground squirrel. Additionally, no State fragmentation and isolation of enrolled lands, if necessary. The acreage or Federal management plans have been subpopulations is expected to limit the enrolled through these two CCAAs is developed that specifically address the regular dispersal of wolverines that is 38,000 ha (94,000 ac), or approximately needs of the species or its habitat. Since necessary to maintain genetic exchange 9 percent of the approximate known current and potential threats are and metapopulation dynamics. Other range. While the ongoing conservation widespread, and, in some areas, severe, secondary threats to the wolverine that efforts have helped to reduce the we conclude the magnitude of threats could work in concert with climate magnitude of threats to moderate, remains high. The Washington ground change include harvest, disturbance, habitat degradation remains the primary squirrel has both imminent and infrastructure, transportation corridors, threat to the species throughout most of nonimminent threats. At a range-wide and small effective population sizes. its range. This threat is imminent due to scale, we conclude the threats are The primary threat of habitat and range the ongoing and increasing prevalence nonimminent based largely on the loss due to climate change would affect of nonnative vegetation, and the current following: The CCAA addressed the wolverine habitat across the entire DPS patchy distribution of the species. Thus, imminent loss of a large portion of and, therefore, the magnitude of threats we assign an LPN of 9 to this habitat to agriculture; there are no other to the wolverine is high. However subspecies. large-scale efforts to convert suitable climate change has not yet had a Washington ground squirrel habitat to agriculture; and wind power detectable effect on the DPS to this (Spermophilus washingtoni)—The project impacts can be minimized point in time; the threat is following summary is based on nonimminent. Therefore, we have information contained in our files and through compliance with the Oregon State Endangered Species Act (OESA) assigned the wolverine contiguous U.S. in the petition we received on March 2, DPS an LPN of 6. 2000. The Washington ground squirrel and/or the Columbia Basin Ecoregion is endemic to the Deschutes-Columbia wind energy siting and permitting Birds Plateau sagebrush-steppe and grassland guidelines. We also consider the Spotless crake, American Samoa DPS communities in eastern Oregon and potential development of shooting (Porzana tabuensis)—The following south-central Washington. Although ranges on the Naval Weapons Systems summary is based on information widely abundant historically, recent Training Facility as nonimminent, contained in our files. No new surveys suggest that its current range because the proposed action is still information was provided in the has contracted toward the center of its being developed, making us unable to petition we received on May 11, 2004. historical range. Approximately two- assess its timing and impact, which Porzana tabuensis is a small, dark, thirds of the Washington ground could be minimized through cryptic rail found in wetlands and rank squirrel’s total historical range has been compliance with the OESA. We, scrub or forest in the Philippines, converted to agricultural and residential therefore, have retained an LPN of 5 for Australia, Fiji, Tonga, Society Islands, uses. The most contiguous, least- this species. Marquesas, Independent Samoa, and disturbed expanse of suitable habitat North American wolverine, American Samoa (Ofu, Tau). The genus within the species’ range occurs on a contiguous U.S. DPS (Gulo gulo Porzana is widespread in the Pacific, site owned by Boeing, Inc., and on the luscus)—The following summary is where it is represented by numerous Naval Weapons Systems Training based on information contained in our island-endemic and flightless species Facility near Boardman, Oregon. In files, in the petition received July 13, (many of which are extinct as a result Washington, the largest expanse of 2000 and in our initial warranted-but- of anthropogenic disturbances) as well known suitable habitat occurs on State precluded finding published in the as several more cosmopolitan species, and Federal lands. Federal Register on December 14, 2010 including P. tabuensis. No subspecies of Agricultural, residential, and wind (75 FR 78030). The wolverine is a P. tabuensis are recognized. power development, among other forms terrestrial mammal that occurs in a wide The American Samoa population is of development, continue to eliminate variety of alpine, boreal, and arctic the only population of spotless crakes

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under U.S. jurisdiction. The available is warranted, but precluded as of the relative abundance of this taxon in information indicates that distinct date of publication of this notice. American Samoa. The total population populations of the spotless crake, a However, we are working on a proposed size is poorly known, but is unlikely to species not noted for long-distance listing rule that we expect to publish number more than a few hundred pairs. dispersal, are definable. The population prior to making the next annual The distribution of the friendly ground- of spotless crakes in American Samoa is resubmitted petition 12-month finding. dove is limited to steep, forested slopes discrete in relation to the remainder of Friendly ground-dove, American with an open understory and a substrate the species as a whole, which is Samoa DPS (Gallicolumba stairi)—The of fine scree or exposed earth; this distributed in widely separated following summary is based on habitat is not common in American locations. Although the spotless crake information contained in our files. No Samoa. The threats are ongoing, and (and other rails) have dispersed widely new information was provided in the therefore imminent, and the magnitude in the Pacific, island rails have tended petition we received on May 11, 2004. is moderate because the relative to reduce or lose their power of flight The genus Gallicolumba is distributed abundance has remained the same for over evolutionary time and so become throughout the Pacific and Southeast several years. Thus, we assign this isolated (and vulnerable to terrestrial Asia. The genus is represented in the subspecies an LPN of 9. predators such as rats). The population oceanic Pacific by six species: Three are Streaked horned lark (Eremophila of this species in American Samoa is endemic to Micronesian islands or alpestris strigata)—We continue to find therefore distinct based on geographic archipelagos, two are endemic to island that listing this species is warranted, but and distributional isolation from groups in French Polynesia; and G. precluded as of the date of publication spotless crake populations on other stairi is endemic to Samoa, Tonga, and of this notice. However, we are working islands in the oceanic Pacific, the Fiji. Some authors recognize two on a proposed listing rule that we Philippines, and Australia. The subspecies of the friendly ground-dove, expect to publish prior to making the American Samoa population of the one, slightly smaller, in the Samoan next annual resubmitted petition 12- spotless crake links the Central and archipelago (G. s. stairi); and one in month finding. Eastern Pacific portions of the species’ Tonga and Fiji (G. s. vitiensis). However, Red knot (Calidris canutus rufa)—The range. The loss of this population would because morphological differences following summary is based on result in an increase of roughly 500 between the two are minimal, we are information contained in our files and miles (805 kilometers) in the distance not recognizing separate subspecies at information provided by petitioners. between the central and eastern this time. Four petitions to emergency list the red Polynesian portions of the spotless In American Samoa, the friendly knot have been received: one on August crake’s range, and could result in the ground-dove has been found on the 9, 2004, two others on August 5, 2005, isolation of the Marquesas and Society islands of Ofu and Olosega (Manua and the most recent on February 27, Islands populations by further limiting Group). Threats to this subspecies have 2008. The rufa subspecies is one of six the potential for even rare genetic not changed over the past year. recognized subspecies of red knot and exchange. Based on the discreteness and Predation by nonnative species and one of three subspecies occurring in significance of the American Samoa natural catastrophes such as hurricanes North America. This subspecies makes population of the spotless crake, we are the primary threats to the one of the longest distance migrations consider this population to be a distinct subspecies. Of these, predation by known in the animal kingdom, as it vertebrate population segment. nonnative species is thought to be travels between breeding areas in the Threats to this population have not occurring now and likely has been central Canadian Arctic and wintering changed over the past year. The occurring for several decades. This areas that are primarily in southern population in American Samoa is predation may be an important South America along the coast of Chile threatened by small population size, impediment to increasing the and Argentina. They migrate along the limited distribution, predation by population. Predation by introduced Atlantic coast of the United States, nonnative and native animals, species has played a significant role in where they may be found from Maine to continued development of wetland reducing, limiting, and extirpating Florida. habitat, and natural catastrophes such as populations of island birds, especially The Delaware Bay area (in Delaware hurricanes. The co-occurrence of a ground-nesters like the friendly ground- and New Jersey) is the largest known known predator of ground-nesting birds, dove, in the Pacific and other locations spring migration stopover area, with far the Norway rat (Rattus norvegicus), and worldwide. Nonnative predators known fewer migrants congregating elsewhere native predators, including the Pacific or thought to occur in the range of the along the Atlantic coast. The boa (Candoia bibroni) and the purple friendly ground-dove in American concentration in the Delaware Bay area swamphen (Porphyrio porphyrio), along Samoa are feral cats (Felis catus), occurs from the middle of May to early with the extremely restricted observed Polynesian rats (Rattus exulans), black June, corresponding to the spawning distribution and low numbers, indicate rats (R. rattus), and Norway rats (R. season of horseshoe crabs. The knots that the magnitude of the threats to the norvegicus). feed on horseshoe crab eggs, rebuilding American Samoa DPS of the spotless In January 2004 and February 2005, energy reserves needed to complete crake continues to be high, because the hurricanes virtually destroyed the migrations to the Arctic and arrive on threats have a significant likelihood of habitat of G. stairi in the area on Olosega the breeding grounds in good condition. bringing about extinction on a short Island where the species had been most In the past, horseshoe crab eggs at time frame. The threats are ongoing, and frequently recorded. Although this Delaware Bay were so numerous that a therefore imminent. Based on this species has coexisted with severe storms red knot could dependably eat enough assessment of existing information for millennia, this example illustrates in 2 to 3 weeks to double its weight. about the imminence and high the potential for natural disturbance to Surveys at wintering areas and at magnitude of these threats, we assigned exacerbate the effects of anthropogenic Delaware Bay during spring migration the spotless crake an LPN of 3. disturbance on small populations. indicate a substantial decline in the red Yellow-billed cuckoo, western U.S. Consistent monitoring using a variety of knot in recent years. At the Delaware DPS (Coccyzus americanus)—We methods over the last 5 years yielded Bay area, peak counts between 1982 and continue to find that listing this species few observations and no change in the 1998 were as high as 95,360 individuals.

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Counts may vary considerably between resulting from reductions in horseshoe the concentration of red knots in the years. Some of the fluctuations can be crabs, which are harvested primarily for Delaware Bay areas and at a relatively attributed to predator-prey cycles on the use as bait and secondarily to support small number of wintering areas makes breeding grounds, and counts show that a biomedical industry. Commercial the species vulnerable to potential large- knots rebound from such reductions. harvest increased substantially in the scale events such as oil spills or severe Peak counts of red knots observed 1990s. Research shows that, since 1998, weather. Overall, we conclude that the during aerial surveys flown in Delaware a high proportion of red knots leaving threats, in particular the modification of Bay from 2004 to 2008 were consistently the Delaware Bay failed to achieve habitat through the effects, particularly below 16,000 birds, with an all time low threshold departure masses needed to of the past, harvesting of horseshoe of only 12,375 red knots found in 2007. fly to breeding grounds and survive an crabs, are severe enough to put the In recent years, the highest initial few days of snow cover, and this viability of the red knot at substantial concentrations of red knots at the corresponded to reduced annual risk and are therefore of a high Delaware Bay stopover have been survival rates and reduced reproductive magnitude. The threats are currently within Mispillion Harbor, Delaware, an success. Since 1999, to protect the occurring and therefore imminent area that has likely been undercounted Atlantic coast population of the because of continuing suppressed during past aerial surveys. horseshoe crab and to increase horseshoe-crab-egg forage conditions for Beginning in 2009, a new survey availability of horseshoe crab eggs in the red knot within the Delaware Bay methodology was implemented for the Delaware Bay for hemispheric migratory stopover. Based on imminent threats of Delaware Bay stopover area to include shorebird populations, a series of timing a high magnitude, we retain an LPN of ground counts that more accurately restrictions and substantially lower 3 for this species. reflect concentrations of red knots using harvest quotas have been adopted by the Yellow-billed loon (Gavia adamsii)— Mispillion Harbor and to include aerial Atlantic States Marine Fisheries The following summary is based on surveys of red knots using Atlantic Commission, as well as by the States of information contained in our files and coastal marshes near Stone Harbor, New New Jersey, Delaware, and Maryland. In the petition we received on April 5, Jersey. The highest count using the new March 2008, New Jersey passed 2004. The yellow-billed loon is a methodology showed 27,187 red knots legislation imposing a moratorium on migratory bird. Solitary pairs breed on in Delaware and 900 in New Jersey, for horseshoe crab harvest or landing lakes in the arctic tundra of the United a total count of 28,087 birds. Poor within the State until the red knot has States, Russia, and Canada from June to weather conditions in 2009 prevented fully recovered. September. During the remainder of the aerial surveys during the period when The reductions in commercial year, the species winters in more red knots were thought to be at a peak, horseshoe crab harvest by Atlantic southern coastal waters of the Pacific so no comparison with the past aerial coastal States since 1999 are substantial. Ocean and the Norway and North Seas. survey peak count method was possible. From 2004 to 2009, annual landings of During most of the year, individual While the number of red knots using horseshoe crabs have been reduced by yellow-billed loons are so widely Delaware Bay likely increased in 2009, over 70 percent from the reference dispersed that high adult mortality from much of the increase is attributed to period landings of the mid to late 1990s. any single factor is unlikely. However, improved survey methods and an For Delaware and New Jersey, horseshoe during migration, yellow-billed loons expanded area of coverage. In 2010, the crab landings for bait have decreased are more concentrated, and hundreds peak aerial count of red knots was from 726,660 reported in 1999, to a are likely subject to subsistence harvest, 14,475; however, flight delays and preliminary number of 102,659 in based on the best available information; scheduling issues prevented Delaware and none in New Jersey in the population could decline simultaneous aerial and ground counts, 2009. No horseshoe crabs have been substantially if such harvest continues. so aerial counts could not be calibrated. landed for bait in New Jersey since Future subsistence harvest in Alaska, by Further analysis is needed to correlate 2007, as a result of the State-imposed itself, constitutes a threat to the species peak counts using the new methodology harvest moratorium. In the Delaware rangewide. This subsistence harvest is with the past aerial-survey-only counts. Bay area, continued recruitment of occurring despite the species being Counts in recent years in South small horseshoe crabs has been closed to hunting under the Migratory America also are substantially lower observed, with a substantial increase in Bird Treaty Act (16 U.S.C. 703–712). In than in the past. In the mid-1980s, an numbers of the smallest sizes of addition, up to several hundred yellow- estimated 67,500 red knots were immature males and females in 2009 billed loons may be taken annually on observed from Tierra del Fuego, Chile, over previous years. The continued Russian breeding grounds, and small and along the coast of Argentina to increase in immature males and females numbers of yellow-billed loons may be northern Patagonia. Since 2003, the would be expected in a recovering taken in Canada. Other risk factors largest concentrations of red knots have population and suggests recent harvest evaluated were found to be threats to occurred at the principal wintering restrictions may be having the desired the species; these included oil and gas areas in Bahia Lomas and other portions effect, but it may be several more years development (i.e., disturbance, changes of Tierra del Fuego and southern until this increase is realized in in freshwater chemistry and pollutant Patagonia, with few birds found farther spawning age adults, as horseshoe crabs loads, and changes in freshwater north along the coast of Argentina. More need 8 to 10 years to reach sexual hydrology); pollution; overfishing; than 50,000 red knots were counted in maturity. climate change; vessel traffic; the principal winter areas in 1985 and Other identified threat factors include commercial- and subsistence-fishery 2000. Since 2005, fewer than 18,000 habitat destruction due to beach erosion bycatch; and contaminants other than have been counted within the same and various shoreline protection and those associated with oil and gas. area, with only 16,260 red knots stabilization projects that are affecting Although these other risk factors may observed in 2010. areas used by migrating knots for not rise to the level of a threat The primary threat to the red knot has foraging, the inadequacy of existing individually, when taken collectively been attributed to destruction and regulatory mechanisms, human with the effects of subsistence hunting modification of its habitat, particularly disturbance, and competition with other in other areas, they may reduce the the reduction in key food resources species for limited food resources. Also, rangewide population even further. The

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primary threat of subsistence harvest is exception of cats and dogs on based on information contained in our currently occurring and one or more of Guadalupe Island. In 2002, rats were files. the threats discussed above is occurring eradicated from Anacapa Island in Lesser prairie-chicken (Tympanuchus throughout the range of the yellow- southern California, which has resulted pallidicinctus)—We continue to find billed loon, either in its breeding or in improvements in reproductive that listing this species is warranted, but wintering grounds, or during migration; success at that island. In southern precluded as of the date of publication therefore, the threats are imminent. The California, efforts to restore nesting of this notice. However, we are working magnitude of the primary threat to the habitat on Santa Barbara Island through on a proposed listing rule that we species, subsistence harvest, is the Montrose Settlements Restoration expect to publish prior to making the moderate. Although subsistence harvest Project may benefit the Xantus’s next annual resubmitted petition 12- is ongoing, the numbers taken have murrelet population at that island. month finding. varied substantially between years; Artificial lighting from squid fishing Gunnison sage-grouse (Centrocercus however, we have concerns about the and other vessels, or lights on islands, minimus)—We continue to find that accuracy and precision of the numbers remains a potential threat to the species. listing this species is warranted, but reported in harvest surveys. Thus, we Bright lights make Xantus’s murrelets precluded as of the date of publication assigned the yellow-billed loon an LPN more susceptible to predation, and they of this notice. However, we are working of 8. can also become disoriented and on a proposed listing rule that we Kittlitz’s murrelet (Brachyramphus exhausted from continual attraction to expect to publish prior to making the brevirostris)—See above in ‘‘Listing bright lights. Chicks can become next annual resubmitted petition 12- Priority Changes in Candidates.’’ The disoriented and separated from their month finding. above summary is based on information parents at sea, which could result in Greater sage-grouse (Centrocercus contained in our files. death of the dependent chicks. High- urophasianus)—The following summary Xantus’s murrelet (Synthliboramphus wattage lights on commercial market is based on information in our files and hypoleucus)—The following summary is squid (Loligo opalescens) fishing vessels in the petition we received on January based on information contained in our used at night to attract squid to the 30, 2002. Currently, greater sage-grouse files and the petition we received on surface of the water in the Channel occur in 11 States (Washington, Oregon, April 16, 2002. The Xantus’s murrelet is Islands was the suspected cause of California, Nevada, Idaho, Montana, a small seabird in the family Alcidae unusually high predation on Xantus’s Wyoming, Colorado, Utah, South that occurs along the west coast of North murrelets by western gulls (Larus Dakota, and North Dakota), and 2 America in the United States, Mexico, occidentalis) and barn owls (Tyto alba) Canadian provinces (Alberta and and Canada. The species has a limited at Santa Barbara Island in 1999. To Saskatchewan), occupying breeding distribution, only nesting on address this threat, in 2000, the approximately 56 percent of their the Channel Islands in southern California Fish and Game Commission historical range. Greater sage-grouse California and on islands off the west required light shields and a limit of depend on a variety of shrub-steppe coast of Baja California, Mexico. 30,000 watts per boat; it is unknown if habitats throughout their life cycle, and Although data on population trends are this is sufficient to reduce impacts. are considered obligate users of several scarce, the population is suspected to Since 1999, no significant squid fishing species of sagebrush. The primary threat have declined greatly over the last has occurred near any of the colonies in to greater sage-grouse is ongoing century, mainly due to predators such the Channel Islands; however, this fragmentation and loss of shrub-steppe as rats (Rattus sp.) and feral cats (Felis remains a potential future threat. habitats through a variety of catus) introduced to nesting islands, A proposal to build three liquid mechanisms. Most importantly, with possible extirpations on three natural gas facilities near the Channel increasing fire cycles and invasive islands in Mexico. A dramatic decline Islands could affect the nesting colonies plants (and the interaction between (up to 70 percent) from 1977 to 1991 due to bright lights at night from the them) in more westerly parts of the was detected at the largest nesting facility and visiting tanker vessels, noise range, along with energy development colony in southern California, possibly from the facilities or from helicopters and related infrastructure in more due to high levels of predation on eggs visiting the facilities, and the threat of easterly areas are negatively affecting by the endemic deer mouse (Peromyscus oil spills associated with visiting tanker species’ persistence. In addition, direct maniculatus elusus). Identified threats vessels. However, these facilities are loss of habitat and fragmentation is include introduced predators at nesting early in the complex and long-term occurring due to agriculture, colonies, oil spills and oil pollution, planning processes, and it is possible urbanization, and infrastructure such as reduced prey availability, human that none of these facilities will be built. roads and power lines built in support disturbance, and artificial light In addition, none of them is directly of several activities. We also have pollution. adjacent to nesting colonies, where the determined that existing regulatory Although substantial declines in the impacts would be expected to be more mechanisms are inadequate to protect Xantus’s murrelet population likely significant. The remaining threats to the the species from these ongoing threats. occurred over the last century, some of species are of a high magnitude, because However, many of these habitat impacts the largest threats are being addressed, they have the potential to compromise are being actively addressed through and, to some degree, ameliorated. the only nesting areas for the species. conservation actions taken by local Declines and possible extirpations at However, because the liquid natural gas working groups, and State and Federal several nesting colonies were thought to facilities are early in the planning agencies. Notably, the National have been caused by nonnative process and may not be completed and Resource Conservation Service has predators, which have been removed currently, little squid fishing vessels committed significant financial and from many of the islands where they occurs near the nesting colonies, the technical resources to address threats to once occurred. Most notably, since threats are nonimminent. Therefore, we this species on private lands through 1994, Island Conservation and Ecology retained a LPN of 5 for this species. their Sage-grouse Initiative. These Group has systematically removed rats, Sprague’s pipit (Anthus spragueii) efforts, when fully implemented, will cats, and dogs from every murrelet —See above in ‘‘Listing Priority Changes potentially provide important nesting colony in Mexico, with the in Candidates.’’ The above summary is conservation benefits to the greater sage-

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grouse and its habitats. We consider the invalidity of the western sage-grouse Hawaiian population would cause a threats to the greater sage-grouse to be subspecies, we will now need to analyze significant gap in the distribution of the of moderate magnitude, because the the significance of the Columbia Basin band-rumped storm-petrel in the threats are not occurring with uniform DPS to the greater sage-grouse. As Pacific, and could result in the complete intensity or distribution across the wide priorities allow, the Service intends to isolation of the Galapagos and Japan range of the species at this time, and complete an analysis to determine if this populations without even occasional substantial habitat still remains to population continues to warrant genetic exchanges. Therefore, the support the species in many areas. The recognition as a DPS in accordance with population is both discrete and threats are imminent because the our Policy Regarding the Recognition of significant, and constitutes a DPS. species is currently facing them in many Distinct Vertebrate Population Segments The band-rumped storm-petrel portions of its range. Therefore, we (61 FR 4722; February 7, 1996). Until probably was common on all of the assigned the greater sage-grouse an LPN that time, the Columbia Basin DPS will main Hawaiian Islands when of 8. remain a candidate for listing as a Polynesians arrived about 1,500 years Greater sage-grouse, Bi-State DPS separate population of sage-grouse. Even ago, based on storm-petrel bones found (Centrocercus urophasianus) — We if this population does not meet our in middens on the island of Hawaii and continue to find that listing this species DPS policy, the sage-grouse population in excavation sites on Oahu and is warranted, but precluded as of the in the Columbia Basin will remain a Molokai. Nesting colonies of this date of publication of this notice. candidate for listing as part of the species in the Hawaiian Islands However, we are working on a proposed process for listing the greater sage- currently are restricted to remote cliffs listing rule that we expect to publish grouse entity. on Kauai and Lehua Island and high- prior to making the next annual elevation lava fields on Hawaii. Band-rumped storm-petrel, Hawaii resubmitted petition 12-month finding. Vocalizations of the species were heard DPS (Oceanodroma castro)—The Greater sage-grouse, Columbia Basin in Haleakala Crater on Maui as recently following summary is based on DPS (Centrocercus urophasianus)—The as 2006; however, no nesting sites have information contained in our files and following summary is based on been located on the island to date. The the petition we received on May 8, information in our files and a petition, significant reduction in numbers and 1989. No new information was provided dated May 14, 1999, requesting the range of the band-rumped storm-petrel in the second petition received on May listing of the Washington population of is due primarily to predation by the western sage-grouse (C. u. phaios). 11, 2004. The band-rumped storm-petrel nonnative predators introduced by On May 7, 2001, we concluded that is a small seabird that is found in humans, including the domestic cat listing the Columbia Basin DPS of the several areas of the subtropical Pacific (Felis catus), small Indian mongoose western sage-grouse was warranted, but and Atlantic Oceans. In the Pacific, (Herpestes auropunctatus), common precluded by higher priority listing there are three widely separated barn owl (Tyto alba), black rat (Rattus actions (66 FR 22984); this population breeding populations: one in Japan, one rattus), Polynesian rat (R. exulans), and was historically found in northern in Hawaii, and one in the Galapagos. Norway rat (R. norvegicus), which occur Oregon and central Washington. Populations in Japan and the Galapagos throughout the main Hawaiian Islands, Following our May 7, 2001, finding, the are comparatively large and number in with the exception of the mongoose, Service received additional petitions the thousands, while the Hawaiian birds which is not established on Kauai. requesting listing actions for various represent a small, remnant population Attraction of fledglings to artificial other greater sage-grouse populations, of possibly only a few hundred pairs. lights, which disrupts their night-time including one for the nominal western Band-rumped storm-petrels are most navigation, resulting in collisions with subspecies, dated January 24, 2002, and commonly found in close proximity to building and other objects, and three for the entire species, dated June breeding islands. The three populations collisions with artificial structures such 18, 2002, and March 19 and December in the Pacific are separated by long as communication towers and utility 22, 2003. The Service subsequently distances across the ocean where birds lines are also threats. Erosion of nest found that the petition for the western are not found. Extensive at-sea surveys sites caused by the actions of nonnative subspecies did not present substantial of the Pacific have revealed a broad gap ungulates is a potential threat in some information (68 FR 6500; February 7, in distribution of the band-rumped locations. Efforts are under way in some 2003), and that listing the greater sage- storm-petrel to the east and west of the areas to reduce light pollution and grouse throughout its historical range Hawaiian Islands, indicating that the mitigate the threat of collisions, but was not warranted (70 FR 2244; January distribution of birds in the central there are no large-scale efforts to control 12, 2005). These two findings were Pacific around Hawaii is disjunct from nonnative predators in the Hawaiian challenged, and remanded to the other nesting areas. The available Islands. The threats are imminent Service for further consideration. In information indicates that distinct because they are ongoing, and they are response, we initiated a new rangewide populations of band-rumped storm- of a high magnitude because they can status review for the entire species (73 petrels are definable and that the severely affect the survival of this DPS FR 10218; February 26, 2008). On March Hawaiian population is distinct based throughout its range, leading to a 5, 2010, we found that listing of the on geographic and distributional relatively high likelihood of extinction. greater sage-grouse was warranted but isolation from other band-rumped Therefore, we assign this distinct precluded by higher priority listing storm-petrel populations in Japan, the population segment an LPN of 3. actions (75 FR 13910; March 23, 2010), Galapagos, and the Atlantic Ocean. A Elfin-woods warbler (Dendroica and it was added to the list of population also can be considered angelae)—The following summary is candidates. We also found that the discrete if it is delimited by based on information contained in our western subspecies of the greater sage- international boundaries that have files. No new information was provided grouse, the taxonomic entity on which differences in management control of in the petition we received on May 11, we based our DPS analysis for the the species. The Hawaiian population of 2004. Dendroica angelae, or elfin-woods Columbia Basin population, was no the band-rumped storm-petrel is the warbler, is a small, entirely black and longer considered a valid subspecies. In only population within U.S. borders or white warbler, distinguished by its light of our conclusions regarding the under U.S. jurisdiction. Loss of the white eyebrow stripe, white patches on

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ear covers and neck, incomplete eye of threat to Dendroica angelae is low to Black pine snake (Pituophis ring, and black crown. The elfin-woods moderate because there is no indication melanoleucus lodingi)—The following warbler was at first thought to occur that the two populations of the elfin- summary is based on information only in high elevations at dwarf or elfin woods warbler are declining in contained in our files. No new forests, but it has since been found at numbers. The species can thrive in information was provided in the lower elevations including shade coffee disturbed and plantation habitats, petition we received on May 11, 2004. plantations and secondary forests. These although abundance of the species on There are historical records for the black birds build a compact cup nest, usually these habitats is lower than in primary pine snake from one parish in close to the trunk and well hidden habitats. Moreover, elfin-woods Louisiana, 14 counties in Mississippi, among the epiphytes of small trees. Its warblers appear to recover well, and in and 3 counties in Alabama west of the breeding season extends from March to a relatively short time, from damaging Mobile River Delta. Black pine snake June. Elfin-woods warblers forage in the effects of hurricanes to the forest surveys and trapping indicate that this middle part of trees, gleaning insects structure. Therefore, we assign a listing species has been extirpated from from leaves in the outer portion of tree priority number of 11 to Dendroica Louisiana and from four counties in crowns. The species has been angelae. Mississippi. Moreover, the distribution documented from four locations in of remaining populations has become Reptiles Puerto Rico: Luquillo Mountains, Sierra highly restricted due to the destruction de Cayey, and the Commonwealth Northern Mexican Gartersnake and fragmentation of the remaining forests of Maricao and Toro Negro. (Thamnophis eques megalops)—The longleaf pine habitat within the range of However, it has not been recorded again following summary is based on the subspecies. Most of the known in Toro Negro and Sierra de Cayey, information contained in our files. The Mississippi populations are following the passing of Hurricane Hugo northern Mexican gartersnake generally concentrated on the DeSoto National in 1989. In 2003 and 2004, surveys were occurs in three types of habitat: (1) Forest. In Alabama, populations conducted for the elfin-woods warbler Ponds and cienegas; (2) lowland river occurring on properties managed by in the Carite Commonwealth Forest, riparian forests and woodlands; and (3) State and other governmental agencies, Toro Negro Forest, Guilarte Forest, upland stream gallery forests. Within as gopher tortoise mitigation banks or Bosque del Pueblo, Maricao Forest and the United States, the distribution of the wildlife sanctuaries, represent the best the El Yunque National Forest. These northern Mexican gartersnake has been opportunities for long-term survival of surveys only reported sightings at reduced by close to 90 percent, and it the subspecies there. Other factors Maricao Commonwealth Forest (778 occurs in fragmented populations affecting the black pine snake include individuals), and El Yunque National within the middle and upper Verde vehicular mortality and low Forest (196 individuals). River drainage, middle and lower Tonto reproductive rates, which magnify the The elfin-woods warbler is potentially Creek, and the upper Santa Cruz River, threats from destruction and threatened by habitat modification. as well as in a small number of isolated fragmentation of longleaf pine habitat Elfin-woods warblers have been wetland habitats in southeastern and increase the likelihood of local historically common in the elfin Arizona; its status in New Mexico is extinctions. Due to the imminent threats woodland of El Yunque National Forest uncertain. Within Mexico, the northern of high magnitude caused by the past and the Podocarpus forest type of Mexican gartersnake is distributed along destruction of most of the longleaf pine Maricao Commonwealth Forest. the Sierra Madre Occidental and the habitat of the black pine snake, and the Removal and replacement of this forest Mexican Plateau in the Mexican States continuing persistent degradation of the vegetation with infrastructure (e.g., of Sonora, Chihuahua, Durango, habitat that remains, we assigned an telecommunication towers, recreational Coahila, Zacatecas, Guanajuato, Nayarit, LPN of 3 to this subspecies. facilities) may have impacted the Hidalgo, Jalisco, San Luis Potosı´, Louisiana pine snake (Pituophis species in the past. Although this loss Aguascalientes, Tlaxacala, Puebla, ruthveni)—The following summary is of habitat has been permanent and Me´xico, Michoaca´n, Oaxaca, Veracruz, based on information contained in our restoration process would take a few and Quere´taro. The primary threat to the files and the petition we received on decades, present regulatory process at northern Mexican gartersnake is July 20, 2000, and updated through both the Commonwealth and Federal competition and predation from April 30, 2011. The Louisiana pine levels have reduced this threat. nonnative species such as sportfish, snake historically occurred in the fire- Unrestricted development within the El bullfrogs, and crayfish. Degradation and maintained longleaf pine ecosystem Yunque buffer zone needs to be elimination of its habitat and native within west-central Louisiana and addressed to determine the impact on prey base are also significant threats, extreme east-central Texas. The historic the migratory behavior of the species. most notably in areas where nonnative and ongoing loss of potential habitat Conversion of elfin-woods warbler species co-occur. Threats, particularly (via fire suppression, conversion to pine habitat (e.g., mature secondary forests, competition and predation by nonnative plantations, increases in the number young secondary forests, and shaded- species, are high in magnitude because and width of roads, and urbanization) coffee plantations) along the periphery they result in direct mortality or on private lands in the matrix between of the Maricao Commonwealth Forest to reduced reproductive capacity and may these extant populations reduces the marginal habitat (e.g., pastures, dry be irreversible in complex habitat. The potential for dispersal among remnant slope forests, residential rural forests, threats are ongoing and, therefore, populations and the potential for gallery forests, and unshaded coffee imminent. Thus, we retained an LPN of natural re-colonization of vacant plantations), has affected potential 3 for this subspecies. suitable habitat patches. The primary corridors for the elfin-woods warbler, Eastern massasauga rattlesnake threats coupled with the disruption of resulting in a reduced dispersal and (Sistrurus catenatus)—See above in natural fire regimes have reduced the expansion capability of the species. ‘‘Listing Priority Changes in Louisiana pine snake to seven isolated These threats are not imminent because Candidates.’’ The above summary is populations. Several of these remnant most of the range of the species is based on information contained in our populations may be vulnerable to within protected lands. The magnitude files. factors associated with low population

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sizes and demographic isolation such as burning on several tracts of their we assign a LPN of 5 to this species. We reduced genetic heterozygosity. Because Bienville Parish property containing a find that listing this species is it is unlikely that corridors linking known Louisiana pine snake warranted throughout all its range. extant populations will be established, population. A habitat management plan Tucson shovel-nosed snake the loss of any extant population is for those sites was developed, and in (Chionactis occipitalis klauberi)—The likely to be permanent. Additional August of 2005, that landowner was Tucson shovel-nosed snake is a small, threats that may occur even within awarded a grant for continued habitat burrowing snake in the Colubridae quality Louisiana pine snake habitat improvement on that same property. family that occupied a roughly 35-mile- include mortality from on- and off-road Subsequently, that property has been wide swath running along the Phoenix- mortality, entanglement in erosion transferred to a new landowner. Tucson corridor in northeastern Pima, control devices installed in rights-of- Through the use of those grant funds southwestern Pinal, and eastern way, and intentional killing. Finally, the and voluntary investment, those private Maricopa Counties, Arizona. No Louisiana pine snake has an extremely landowners have converted lands to systematic surveys have been conducted low reproductive rate, thereby longleaf pine within those Core to assess the status of the subspecies magnifying the effects of the above Management Areas and completed throughout its range, but it has listed threats. Currently occupied prescribed burning. apparently disappeared from some habitat in Louisiana and Texas is The Louisiana Pine Snake areas. estimated to be approximately 163,000 Conservation Group consists of Threats to the Tucson shovel-nosed acres, with 53 percent occurring on representatives from a variety of snake include urban and rural public lands and 47 percent in private organizations having an interest in development; road construction, use, ownership. Louisiana pine snake conservation and and maintenance; concentration of solar Louisiana pine snake populations on includes approximately 90 individuals power facilities and transmission Federal lands have received increased representing State and Federal corridors; agriculture; wildfires; and management attention (via prescribed government, non-profit and private lack of adequate management and burning and thinning) in recent years, organizations, zoos, academia, and regulation. Comprehensive plans and as a result, the successional private landowners. This group has encompassing the entire range of the degradation of occupied and potential been holding annual stakeholder snake encourage large growth areas in habitat within these populations has meetings since 2003. At those meetings, the next 20 years and beyond. These been stabilized or reversed. stakeholders discuss issues and threats plans also call for an increase in roads Nonetheless, not all areas of occupied to the Louisiana pine snake, identify and transportation corridors, which habitat on Federal lands have received possible strategies to deal with those have been documented to affect the recent prescribed burning, and in the threats, report on land management snake through direct mortality. absence of adequate burning, Louisiana activities beneficial to stability or Additionally, development of solar pine snake habitat becomes degraded recovery, and discuss and share energy facilities and transmission via vegetative succession. The largest successful results. Five significant corridors throughout the State is being and perhaps most important extant actions have resulted from cooperative pursued, and demand for these facilities Louisiana pine snake population exists efforts of this group’s members: (1) will likely increase. Some of these on private industrial timberland. Completion of a threats assessment; (2) facilities are being considered within Although two conservation areas are development and completion of a the range of the Tucson shovel-nosed managed to benefit Louisiana pine landscape—scaled resources selection snake. Wildfires due to infestations of snakes on this property, the majority of function model; (3) training and nonnative grasses in the snake’s habitat, the occupied habitat between the experimental testing of a scent dog to dominated by native plants not adapted conservation areas is threatened by land assist in survey efforts; (4) initiation of to survive wildfires, are likely to management activities (habitat an experimental captive breeding and increase in frequency and magnitude in conversion to short-rotation pine reintroduction program; and (5) the future as these invasive grasses plantations) that are expected to initiation of a DNA microsatellite study continue to spread rapidly. Regulations decrease habitat quality. The candidate that will help define genetic structure are not in place to minimize or mitigate conservation agreement (CCA) for the among populations. these threats to the Tucson shovel-nosed Louisiana pine snake which includes While the extent of Louisiana pine snake and its habitat, and, therefore, the Service, U.S. Forest Service, snake habitat loss has been great in the they are likely to put the snake at risk Department of Defense, Texas Parks and past and much of the remaining habitat of local extirpation or extinction. These Wildlife, and Louisiana Department of has been degraded, habitat loss does not threats, particularly those that lead to a Wildlife was completed in 2003, and is represent an imminent threat, primarily loss of habitat, are likely to reduce the currently being implemented. The CCA because the rate of habitat loss appears population of the Tucson shovel-nosed is designed to identify and establish to be declining on public lands. snake across its entire range. Given the management for the Louisiana pine However, all populations require active limited geographic distribution of this snake on Federal lands in Louisiana and habitat management, and the lack of snake and the fact that its entire range Texas, and provides a means for the adequate habitat remains a threat for lies within the path of development in partnering agencies to work several populations. The potential the foreseeable future, these threats are cooperatively on projects that avoid and threats to a large percentage of extant of high magnitude and are imminent. minimize impacts to the snake. It also Louisiana pine snake populations, Accordingly, we have assigned an LPN sets up a mechanism to exchange coupled with the likely permanence of of 3 for the Tucson shovel-nosed snake. information on successful management these effects and the species’ low Desert tortoise, Sonoran DPS practices and coordinate research fecundity and low population sizes, (Gopherus agassizii)—The following efforts. lead us to conclude that the threats have summary is based on information In 2001, the Service provided funds, significant effects on the survival of the contained in our files. Sonoran desert through the Private Stewardship Grant species and therefore remain high in tortoises are most closely associated Program, to a private landowner for magnitude. Thus, based on with Sonoran and Mojave desertscrub habitat restoration and prescribed nonimminent, high-magnitude threats, vegetation types, but may also be found

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in other habitat types within their Sonoyta mud turtle occurs is one of the their continued existence throughout distribution and elevation range. They driest regions in the Southwest. Due to their historical range. Additionally, a occur most commonly on rocky, steep continued drought, irrigated agriculture, candidate conservation agreement with slopes and bajadas in paloverde-mixed and development in the region, surface assurances was completed in 2006, for cacti associations. Washes and valley water in the Rio Sonoyta can be the Owyhee subpopulation at Sam bottoms may be used in dispersal and, expected to dwindle further and Noble Springs, Idaho. Several habitat in some areas, as all or part of home therefore have a significant impact on enhancement projects have been ranges. Most Sonoran desert tortoises in the survival of this subspecies, which conducted throughout the range that Arizona occur between 904 to 4,198 feet may also be vulnerable to aerial have benefitted these populations. We (275 to 1280 meters) in elevation. The spraying of pesticides on nearby conclude that the threats are of Sonoran desert tortoise is distributed agricultural fields. We retained an LPN moderate magnitude, because the DPS is south and east of the Colorado River in of 3 for this subspecies because threats still widely distributed, and several Arizona in all counties except for are of a high magnitude and continue to regulatory mechanisms are benefitting Navajo, Apache, Coconino, and date, and therefore are imminent. the populations and working to reduce Greenlee Counties, south to the Rio Amphibians threats. Based on imminent threats of Yaqui in southern Sonora, Mexico. A moderate magnitude, we assigned an recently published paper on the genetics Columbia spotted frog, Great Basin LPN of 9 to this DPS of the Columbia of desert tortoise indicates this DPS (Rana luteiventris)—The following spotted frog. population should be treated as a summary is based on information contained in our files and the petition Mountain yellow-legged frog, Sierra separate species. We will be analyzing Nevada DPS (Rana muscosa)—The this new information, and will make we received on May 1, 1989. Currently, Columbia spotted frogs appear to be following summary is based on any necessary changes to the information contained in our files and nomenclature and LPN in the next widely distributed throughout southwestern Idaho, southeastern the petition received on February 8, candidate notice. 2000. Also see our 12-month petition Threats include nonnative plant Oregon, and northeastern and central finding published on January 16, 2003 species invasions and altered fire Nevada, but local populations within (68 FR 2283) and our amended 12- regimes; urban and agricultural this general area appear to be small and month petition finding published on development, and human population isolated from each other. Recent work June 25, 2007 (72 FR 34657). The growth; barriers to dispersal and genetic by researchers in Idaho and Nevada exchange; off-highway vehicles; roads have documented the loss of historically mountain yellow-legged frog inhabits and highways; historical ironwood and known sites, reduced numbers of the high elevation lakes, ponds, and mesquite tree harvest in Mexico; individuals within local populations, streams in the Sierra Nevada Mountains improper livestock grazing and declines in the reproduction of of California, from near 4,500 feet (ft) (predominantly in Mexico); those individuals. (1,370 meters (m)) to 12,000 ft (3,650 m). undocumented human immigration and Small, highly fragmented populations, The distribution of the mountain interdiction activities; illegal collection; characteristic of the majority of existing yellow-legged frog is from Butte and predation from feral dogs; human populations of Columbia spotted frogs Plumas Counties in the north to Tulare depredation and vandalism; drought; in the Great Basin, are highly and Inyo Counties in the south. A and climate change. Threats to the susceptible to extinction processes. separate population in southern Sonoran desert tortoise differ Threats to Columbia spotted frog California is already listed as geographically and are highly include poor management of habitat endangered (67 FR 44382; July 2, 2002). synergistic in their effects on the including water development, improper Based on mitochondrial DNA, population. The threats identified to grazing, mining activities, and morphological, and acoustic studies, affect the Sonoran desert tortoise nonnative species, all of which have Vredenburg et al. recently recognized currently or in the foreseeable future are contributed, and continue to contribute, two distinct species of mountain of high magnitude but, overall, are to the degradation and fragmentation of yellow-legged frog in the Sierra Nevada, nonimminent. Therefore, we assigned habitat. Emerging fungal diseases, such R. muscosa and R. sierrae. This an LPN of 6 to this population of desert as chytridiomycosis, and the spread of taxonomic distinction has been recently tortoise. parasites may be contributing factors to adopted by the American Society of Sonoyta mud turtle (Kinosternon Columbia spotted frog’s population Ichthyologists and Herpetologists, the sonoriense longifemorale)—The declines throughout portions of its Herpetologists’ League, and the Society following summary is based on range. Effects of climate change, such as for the Study of Amphibians and information contained in our files. No drought, and stochastic events, such as Reptiles. The Vredenburg study new information was provided in the fire, often have detrimental effects to determined that two species exist, as petition we received on May 11, 2004. small, isolated populations and can described by Camp in 1917, but have The Sonoyta mud turtle occurs in a often exacerbate existing threats. A 10- different geographical ranges than first spring and pond at Quitobaquito year conservation agreement and described. Camp described R. muscosa Springs on Organ Pipe Cactus National strategy was signed in September 2003 as only occurring in southern California. Monument in Arizona, and in the Rio for both the Northeast and the Toiyabe A recent study determined that R. Sonoyta and Quitovac Spring of Sonora, subpopulations in Nevada. The goals of muscosa also occurs in the southern Mexico. Loss and degradation of stream the conservation agreements are to portion of the Sierra Nevada and that R. habitat from water diversion and reduce threats to Columbia spotted frogs sierrae occurs both in the southern and groundwater pumping, along with its and their habitat to the extent necessary northern portions of the Sierra Nevada very limited distribution, are the to prevent populations from becoming with no range overlap. We accept the primary threats to the Sonoyta mud extirpated throughout all or a portion of taxonomic distinction of two species, turtle. Sonoyta mud turtles are highly their historical range and to maintain, and the taxonomic split between the aquatic and depend on permanent water enhance, and restore a sufficient mountain yellow-legged frogs in the for survival. The area of southwest number of populations of Columbia northern and central Sierra Nevada Arizona and northern Sonora where the spotted frogs and their habitat to ensure Mountains of California (Rana sierrae)

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and the mountain yellow-legged frogs in The current distribution of the Sierra predation by nonnative fish and the southern Sierra Nevada and the Nevada mountain yellow-legged frog is introduced bullfrogs; competition with mountains of southern California (R. restricted primarily to public lands at bullfrogs and nonnative fish for habitat; muscosa) and we intend to propose this high elevations, including streams, and diseases, such as oomycete water taxonomic change in a proposed rule. In lakes, ponds, and meadow wetlands mold Saprolegnia and chytrid fungus the interim, we continue to recognize all located on national forests, including infections. The magnitude of threat is mountain yellow-legged frogs in the wilderness and non-wilderness on the high for this species because this wide Sierra Nevada Mountains of California forests, and national parks. In several range of threats to both individuals and as R. muscosa and as the candidate areas where detailed studies of the their habitats could seriously reduce or entity. effects of chytrid fungus on the eliminate any of these isolated Predation by introduced trout is the mountain yellow-legged frog are populations and further reduce the best-documented cause of the decline of ongoing, substantial declines have been species’ range and potential survival. the Sierra Nevada mountain yellow- observed over the past several years. For Habitat restoration and management legged frog, because it has been example, in 2007 surveys in Yosemite actions have not prevented population repeatedly observed that fishes and National Park, mountain yellow-legged declines. The threats are imminent mountain yellow-legged frogs rarely co- frogs were not detectable at 37 percent because each population is faced with exist. Mountain yellow-legged frogs and of 285 sites where they had been multiple ongoing and potential threats trout (native and nonnative) do co-occur observed in 2000–2002; in 2005 in as identified above. Therefore, we retain at some sites, but these co-occurrences Sequoia and Kings Canyon National an LPN of 2 for the Oregon spotted frog. probably are mountain yellow-legged Parks, mountain yellow-legged frogs Relict leopard frog (Lithobates frog populations with negative were not detected at 54 percent of sites onca)—See above in ‘‘Listing Priority population growth rates in the absence where they had been recorded 3 to 8 Changes in Candidates.’’ The above of immigration. To help reverse the years earlier. A compounding effect of summary is based on information decline of the mountain yellow-legged disease-caused extinctions of mountain contained in our files. frog, the Sequoia and Kings Canyon yellow-legged frogs is that Austin blind salamander (Eurycea National Parks have been removing recolonization may never occur because waterlooensis)—We continue to find introduced trout since 2001. Over streams connecting extirpated sites to that listing this species is warranted, but 18,000 introduced trout have been extant populations now contain precluded as of the date of publication removed from 11 lakes since the project introduced fishes, which act as barriers of this notice. However, we are working started in 2001. The lakes are to frog movement within on a proposed listing rule that we completely, to mostly, fish-free, and metapopulations. The most recent expect to publish prior to making the substantial mountain yellow-legged frog assessment of the species status in the next annual resubmitted petition 12- population increases have resulted. The Sierra Nevada indicates that mountain- month finding. California Department of Fish and Game yellow legged frogs occur at less than 8 Berry Cave salamander (Gyrinophilus (CDFG) has also removed or is in the percent of the sites from which they gulolineatus)—The following summary process of removing nonnative trout were historically observed. A group of is based on information in our files. We from a total of between 10 and 20 water prominent scientists further suggest a have no new information since this bodies in the Inyo, Humboldt-Toiyabe, 10-percent decline per year in the species was afforded candidate status Sierra, and El Dorado National Forests. number of remaining Rana mucosa. through our 12-month warranted-but- In the El Dorado National Forest, golden Based on threats that are imminent precluded finding published on March trout were removed from Leland Lake, (because they are ongoing) and high- 22, 2011 (76 FR 15919). The Berry Cave and attempts have been made to remove magnitude (because they significantly salamander is recorded from Berry Cave trout from two sites near Gertrude Lake, affect the survival of the DPS in Roane County; from Mud Flats, three lakes in the Pyramid Creek throughout its range), we continue to Aycock Spring, Christian, Meades watershed, and a tributary of Cole assign the population of mountain Quarry, Meades River, and Fifth Caves Creek; no data showing increase in yellow-legged frog in the Sierra Nevada in Knox County; from Blythe Ferry Cave mountain yellow-legged frogs at these an LPN of 3. in Meigs County; and from an unknown sites were available. Oregon spotted frog (Rana pretiosa)— cave in Athens, McMinn County, In California, chytridiomycosis, more The following summary is based on Tennessee. These cave systems are all commonly known as chytrid fungus information contained in our files and located within the Upper Tennessee (Batrachochytrium dendrobatidis) or the petition we received on May 4, River and Clinch River drainages. A Bd, has been detected in many 1989. Historically, the Oregon spotted total of 113 caves in Middle and East amphibian species, including the frog ranged from British Columbia to the Tennessee were surveyed from the time mountain yellow-legged frog within the Pit River drainage in northeastern period of April 2004 through June 2007, Sierra Nevada. Recent research has California. Based on surveys of resulting in observations of 63 Berry shown that this pathogenic fungus has historical sites, the Oregon spotted frog Cave salamanders. These surveys become widely distributed throughout is now absent from at least 76 percent concluded that Berry Cave salamander the Sierra Nevada, and that infected of its former range. The majority of the populations are robust at Berry and mountain yellow-legged frogs often die remaining Oregon spotted frog Mudflats Caves, where population soon after metamorphosis. Several populations are small and isolated. declines had been previously reported, infected and uninfected populations The threats to the species’ habitat and documented two new populations were monitored in Sequoia and Kings include development, livestock grazing, of Berry Cave salamanders at Aycock Canyon National Parks over multiple introduction of nonnative plant species, Spring and Christian caves. years, documenting dramatic declines vegetation succession, changes in Ongoing threats to this species and extirpations in infected but not in hydrology due to construction of dams include lye leaching in the Meades uninfected populations. In the summer and alterations to seasonal flooding, Quarry Cave as a result of past quarrying of 2005, 39 of 43 populations assayed in lack of management of exotic vegetation, activities, a proposed roadway with Yosemite National Park were positive predators, and poor water quality. potential to impact the recharge area for for chytrid fungus. Additional threats to the species are the Meades Quarry Cave system, urban

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development in Knox County, water name, and referring to the Yosemite direct mortality; suppressing the quality impacts despite existing State toad accordingly in this document. immune system; disrupting breeding and Federal laws, and possibly Yosemite toads are most likely to be behavior, fertilization, growth or hybridization between spring found in areas with thick meadow development of young; and disrupting salamanders and Berry Cave vegetation or patches of low willows the ability to avoid predation. salamanders in Meades Quarry Cave. near or in water, and use rodent There is no indication that any of These threats, coupled with confined burrows for overwintering and these threats are ongoing or planned; distribution of the species and apparent temporary refuge during the summer. therefore the threats are nonimminent. low population densities, leave the Breeding habitat includes the edges of In addition, as there are a number of Berry Cave salamander vulnerable to wet meadows, slow-flowing streams, substantial populations and these extirpation. We have determined that shallow ponds, and shallow areas of threats tend to have localized effects, the Berry Cave salamander faces lakes. The historic range of Yosemite the threats are moderate to low in imminent threats, and that the threats toads in the Sierra Nevada occurs from magnitude. We therefore retained an are of moderate magnitude, because the Blue Lakes region north of Ebbetts LPN of 11 for the Yosemite toad. some populations appear to be robust Pass (Alpine County) to south of Kaiser Black Warrior waterdog (Necturus and new populations are emerging. We Pass in the Evolution Lake/Darwin alabamensis)—The following summary have therefore assigned it an LPN of 8. Canyon area (Fresno County). The is based on information contained in Georgetown salamander (Eurycea historic elevational range of Yosemite our files. No new information was naufragia)—We continue to find that toads is 1,460 to 3,630 m (4,790 to provided in the petition we received on listing this species is warranted, but 11,910 ft). May 11, 2004. The Black Warrior precluded as of the date of publication The threats facing the Yosemite toad waterdog is a salamander that inhabits of this notice. However, we are working include cattle grazing, timber streams above the Fall Line within the on a proposed listing rule that we harvesting, recreation, disease, and Black Warrior River Basin in Alabama. expect to publish prior to making the climate change. Inappropriate grazing There is very little specific locality next annual resubmitted petition 12- has been shown to cause loss in information available on the historical month finding. vegetative cover and to destroy peat distribution of the Black Warrior Jollyville Plateau salamander (Eurycea layers in meadows, both of which lower waterdog as little attention was given to tonkawae)—We continue to find that groundwater tables and summer flows this species between its description in listing this species is warranted, but of surface water. This may increase the 1937 and the 1980s. At that time, there precluded as of the date of publication stranding and mortality of tadpoles, or were a total of only 11 known historical of this notice. However, we are working make these areas completely unsuitable records from four Alabama counties. on a proposed listing rule that we for Yosemite toads. Grazing can also Two of these sites have now been expect to publish prior to making the degrade or destroy moist upland areas inundated by impoundments. Extensive next annual resubmitted petition 12- used as non-breeding habitat by survey work was conducted in the month finding. Yosemite toads and collapse rodent 1990s to look for additional Salado salamander (Eurycea burrows used by Yosemite toads as populations. As a result of that work, chisholmensis)—We continue to find cover and hibernation sites. Timber the species was documented at 14 sites that listing this species is warranted, but harvesting and associated road in five counties. precluded as of the date of publication construction could severely alter the Water-quality degradation is the of this notice. However, we are working terrestrial environment and result in the biggest threat to the continued existence on a proposed listing rule that we reduction and occasional extirpation of of the Black Warrior waterdog. Most expect to publish prior to making the amphibian populations in the Sierra streams that have been surveyed for the next annual resubmitted petition 12- Nevada. Habitat gaps created by timber waterdog showed evidence of pollution month finding. harvest and road construction may act and many appeared biologically Yosemite toad (Anaxyrus canorus)— as dispersal barriers and contribute to depauperate. Sources of point and The following summary is based on the fragmentation of Yosemite toad nonpoint pollution in the Black Warrior information contained in our files and habitat and populations. Trails (foot, River Basin have been numerous and the petition we received on April 3, horse, bicycle, or off-highway motor widespread. Pollution is generated from 2000. See also our 12-month petition vehicle) compact soil in riparian habitat, inadequately treated effluent from finding published on December 10, 2002 which increases erosion, displaces industrial plants, sanitary landfills, (67 FR 75834). Yosemite toads are vegetation, and can lower the water sewage treatment plants, poultry moderately sized toads with females table. Trampling or the collapsing of operations, and cattle feedlots. Surface having black spots that are edged with rodent burrows by recreationists, pets, mining represents another threat to the white or cream, and set against a grey, and vehicles could lead to direct biological integrity of waterdog habitat. tan, or brown background. Males have a mortality of all life stages of the Runoff from old, abandoned coal mines nearly uniform coloration of yellow- Yosemite toad and disrupt the species’ generates pollution through green to olive drab to greenish brown. behavior. Various diseases have been acidification, increased mineralization, Yosemite toads have been grouped confirmed in Yosemite toads. Mass die- and sediment loading. The North River, within the genus ‘‘Bufo.’’ Recently, offs of amphibians have been attributed Locust Fork, and Mulberry Fork, all Frost et al. divided the ‘‘Bufo’’ genus to: Chytrid fungal infections of streams that this species inhabits, are on into three separate genera, assigning the metamorphs and adults; saprolegnia the Environmental Protection Agency’s North American toads to the genus fungal infections of eggs; iridovirus list of impaired waters. An additional Anaxyrus. This taxonomic distinction infection of larvae, metamorphs, or threat to the Black Warrior waterdog is has been recently adopted by the adults; and bacterial infections. the creation of large impoundments that American Society of Ichthyologists and Yosemite toads probably are exposed to have flooded thousands of square Herpetologists, the Herpetologists’ a variety of pesticides and other hectares of its habitat. These League, and the Society for the Study of chemicals throughout their range. impoundments are likely marginal or Amphibians and Reptiles, and we are Environmental contaminants could unsuitable habitat for the salamander. acknowledging the change in genus negatively affect the species by causing Suitable habitat for the Black Warrior

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waterdog is limited, and available data Roundtail Chub (G. robusta), Headwater distribution of the species is highly indicate extant populations are small Chub, Flannelmouth Sucker reduced from its historic range. and their viability is questionable. This (Catostomus latipinnis), Little Colorado Currently, only six known wild situation is pervasive and problematic; River Sucker (Catostomus spp.), populations remain, but one of these is water-quality issues are persistent, and Bluehead Sucker (C. discobolus), and considered functionally extirpated. regulatory mechanisms are not Zuni Bluehead Sucker (C. discobolus Least chub also currently exist at several ameliorating these threats, although we yarrowi). The New Mexico Department genetic refuge sites. The species faces have no indication of population of Game and Fish has listed the threats from the effects of livestock declines, at present. Therefore, the headwater chub as endangered and grazing, which affects most least chub overall magnitude of the threat is created a recovery plan for the species: sites despite efforts to protect least chub moderate. Water-quality degradation in Colorado River Basin Chubs (Roundtail habitat with grazing enclosures and the Black Warrior basin is ongoing. Chub, Gila Chub (G. intermedia), and management plans. Least chub habitat Therefore, the threats are imminent. Headwater Chub) Recovery Plan, which also is affected by current and proposed Additional surveys, initiated in 2011, was approved by the New Mexico State future groundwater withdrawals, may clarify the status of populations in Game Commission on November 16, especially when combined with the the face of existing threats. We assigned 2006. Both Arizona’s agreement and threat of drought. These threats also act an LPN of 8 to this species. New Mexico’s recovery plan cumulatively with climate change to put recommend preservation and the least chub at further risk. Existing Fishes enhancement of extant populations and regulatory mechanisms are currently Headwater chub (Gila nigra)—The restoration of historical headwater-chub inadequate to regulate groundwater following summary is based on populations. The recovery and withdrawals and ameliorate their effects information contained in our files, in conservation actions prescribed by on least chub habitat. Nonnative the 12-month finding published in the Arizona’s and New Mexico’s plans, species, particularly mosquitofish, also Federal Register on May 3, 2006 (71 FR which we predict will reduce and are a continuing threat to least chub. 26007), and in the petition received remove threats to this species, will There is no known means of controlling November 9, 2009. The headwater chub require further discussions and mosquitofish, and they have already is a moderate-sized cyprinid fish. The authorizations before they can be caused the functional extirpation of one range of the headwater chub has been implemented. The recently completed wild least chub population. reduced by approximately 60 percent. Arizona Game and Fish Department In 1998, several State and Federal Twenty-three streams (125 miles (200 Sportfish Stocking Program’s agencies including the Service and the kilometers) of stream) are thought to be Conservation and Mitigation Program Utah Division of Wildlife Resources occupied out of 26 streams (312 miles contains significant conservation developed a Least Chub Conservation (500 kilometers) of stream) formerly actions for the headwater chub that will Agreement and Strategy, and formed the occupied in the Gila River Basin in be implemented over the next 10 years. Least Chub Conservation Team. Their Arizona and New Mexico. All remaining Although threats are ongoing, existing objectives are to eliminate or populations are fragmented and information indicates long-term significantly reduce threats to the least isolated, and threatened by a persistence and stability of existing chub and its habitat, and to ensure the combination of factors. populations. Currently 7 of the 23 extant continued existence of the species by Headwater chubs are threatened by stream populations are considered restoring and maintaining a minimum introduced, nonnative fish that prey on stable based on abundance and evidence number of least chub populations them and compete with them for food. of recruitment. We evaluated throughout its historic range. Recent Habitat destruction and modification information provided in the 2009 State-led least chub conservation have occurred and continue to occur as petition relating to our 2008 change in actions have included restoration of a result of dewatering, impoundment, LPN for the headwater chub from 2 to habitat affected by grazing, channelization, and channel changes 8 as part of our annual analysis. In reintroduction and range expansion, caused by alteration of riparian making that 2008 decision, we recognize nonnative removal, population vegetation and watershed degradation that we inadvertently relied on some monitoring, and working cooperatively from mining, grazing, roads, water information and did not consider other with landowners to conserve water and pollution, urban and suburban available information. Additional aquatic habitat. This group also has development, groundwater pumping, information will be available on recently begun a structured decision and other human actions. Existing population status and threats later in making modeling process that will regulatory mechanisms do not appear to 2011 that we will use to reassess the provide additional guidance for be adequate for addressing the impact of LPN for the headwater chub next year. conservation activities. nonnative fish and also have not We have retained an LPN of 8 for this Although grazing, groundwater removed or eliminated the threats that species at this time. withdrawal, and predation by nonnative continue to be posed through habitat Least Chub (Iotichthys species are high magnitude threats to degradation. The fragmented nature and phlegethontis)—The following summary some populations, they are of low rarity of existing populations makes is based on information contained in magnitude or nonexistent in other them vulnerable to other natural or our files and in the petition received populations. Therefore the threats to the manmade factors, such as drought and June 25, 2007. The least chub is a small, least chub are of moderate magnitude wildfire. Climate change is predicted to colorful fish species in Utah that follows overall. The threats are imminent worsen these threats through increased thermal patterns for habitat use. Least because they are identifiable and the aridity of the region, thus reducing chub use flooded, warmer, vegetated species is currently facing them in many stream flows and warming aquatic marsh areas to spawn in the spring, and portions of its range. Therefore, we have habitats, which makes the habitat more retreat to spring heads to overwinter as assigned the least chub an LPN of 7. suitable to nonnative species. the water recedes in the late summer Roundtail chub (Gila robusta), Lower The Arizona Game and Fish and fall. Historically, many least chub Colorado River DPS—The following Department has finalized the Arizona occurrences were reported across the summary is based on information Statewide Conservation Agreement for State of Utah, but the current contained in our files and the 12-month

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finding published in the Federal conservation actions prescribed by the development, spills, and runoff are not Register on July 7, 2009 (74 FR 32352). Arizona and New Mexico plans, which currently affecting the species The roundtail chub is a moderate to we predict will reduce and remove rangewide. Thus, we are retaining an large cyprinid fish. The range of the threats to this species, will require LPN of 11 for the Arkansas darter. roundtail chub has been reduced by further discussions and authorizations Pearl darter (Percina aurora)—The approximately 68 to 82 percent. Thirty- before they can be implemented, following summary is based on two streams are currently occupied, although some actions have been information contained in our files. Little representing approximately 18 to 32 completed and several are planned for is known about the specific habitat percent of the species’ former range, or the immediate future. The recently requirements or natural history of the 800 km (500 miles) to 1,350 km (840 mi) completed Arizona Game and Fish Pearl darter. Pearl darters have been of 3,050 km (1,895 mi) of formerly Department Sportfish Stocking collected from a variety of river/stream occupied streams in the Gila River Basin Program’s Conservation and Mitigation attributes, mainly over gravel bottom in Arizona and New Mexico. Most of the Program contains significant substrate. This species is historically remaining populations are fragmented conservation actions for the roundtail known only from localized sites within and isolated, and all are threatened by chub that will be implemented over the the Pascagoula and Pearl River a combination of factors. next 10 years. drainages in Mississippi and Louisiana. Roundtail chub are threatened by Although threats are ongoing, existing Currently, the Pearl darter is considered introduced, nonnative fish that prey on information indicates long-term extirpated from the Pearl River drainage them and compete with them for food. persistence and stability of existing and rare in the Pascagoula River Habitat destruction and modification populations. Currently, 9 of the 32 drainage. Since 1983, the range of the have occurred and continue to occur as extant stream populations are Pearl darter has decreased by 55 a result of dewatering, impoundment, considered stable, based on abundance percent. channelization, and channel changes and evidence of recruitment. Based on The Pearl darter is vulnerable to caused by alteration of riparian our assessment, threats (primarily nonpoint source pollution caused by vegetation and watershed degradation nonnative species and habitat loss from urbanization and other land use from mining, grazing, roads, water land uses) remain imminent and are of activities; gravel mining and resultant pollution, urban and suburban a moderate magnitude. Thus, we have changes in river geomorphology, development, groundwater pumping, retained an LPN of 9 for this distinct especially head cutting; and the and other human actions. Existing population segment. possibility of water quantity decline regulatory mechanisms do not appear to Arkansas darter (Etheostoma from the proposed Department of be adequate for addressing the impact of cragini)—The following summary is Energy Strategic Petroleum Reserve nonnative fish and also have not based on information contained in our project and a proposed dam on the removed or eliminated the threats that files. No new information was provided Bouie River. Additional threats are continue to be posed through habitat in the petition we received on May 11, posed by the apparent lack of adequate destruction or modification. The 2004. This fish species occurs in State and Federal water quality fragmented nature and rarity of existing Arkansas, Colorado, Kansas, Missouri, regulations due to the continuing populations makes them vulnerable to and Oklahoma. The species is found degradation of water quality within the other natural or manmade factors, such most often in sand- or pebble-bottomed species’ habitat. The Pearl darter’s as drought and wildfire. Climate change pools of small, spring-fed streams and localized distribution and apparent low is predicted to worsen these threats marshes, with cool water and population numbers may indicate a through increased aridity of the region, broadleaved aquatic vegetation. Its species with lower genetic diversity, thus reducing stream flows and current distribution is indicative of a and this would also make the species warming aquatic habitats, which makes species that once was widely dispersed more vulnerable to catastrophic events. the habitat more suitable to nonnative throughout its range, but has been Threats affecting the Pearl darter are species. relegated to isolated areas surrounded localized in nature, affecting portions of The Arizona Game and Fish by unsuitable habitat that prevents the population within the drainage; Department has finalized the Arizona dispersal. Factors influencing the thus, a threat magnitude of moderate to Statewide Conservation Agreement for current distribution include: Surface low is assigned for this species. In Roundtail Chub, Headwater Chub (G. and groundwater irrigation resulting in addition, the threats are imminent nigra), Flannelmouth Sucker decreased flows or stream dewatering; because the identified threats are (Catostomus latipinnis), Little Colorado the dewatering of long reaches of currently affecting this species in some River Sucker (Catostomus spp.), riverine habitat necessary for species portions of its range. Therefore, we have Bluehead Sucker (C. discobolus), and movement when surface flows do occur; assigned an LPN of 8 for this species. Zuni Bluehead Sucker (C. discobolus conversion of prairie to cropland, which Arctic grayling, Upper Missouri River yarrowi). The New Mexico Department influences groundwater recharge and DPS (Thymallus arcticus)—The of Game and Fish lists the roundtail spring flows; water quality degradation following summary is based on chub as endangered and has created a from a variety of sources; and the information contained in our files. This recovery plan for the species: Colorado construction of dams, which act as fish species has a broad, nearly River Basin Chubs (Roundtail Chub, barriers preventing emigration upstream circumpolar distribution, occurring in a Gila Chub (G. intermedia), and and downstream through the reservoir variety of cold-water habitats including Headwater Chub) Recovery Plan, which pool. The magnitude of threats facing small streams, large rivers, lakes, and was approved by the New Mexico State this species is moderate to low, given even bogs. We determined in our Game Commission on November 16, the number of different locations where September 8, 2010, status review (75 FR 2006. Both the Arizona Agreement and the species occurs and the fact that no 54708) that the upper Missouri River the New Mexico Recovery Plan single threat or combination of threats population of arctic grayling in Montana recommend preservation and affects more than a portion of the and Wyoming represents a DPS because enhancement of extant populations and widespread population occurrences. it is discrete due to geographic restoration of historical roundtail chub Overall, the threats are nonimminent as separation and genetic differences, and populations. The recovery and groundwater pumping is declining and it is significant to the taxon as a whole.

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The historical range of Arctic grayling in activities; run-off and discharge of information indicates that the the upper Missouri River basin has organic and inorganic pollutants from population upstream of Possum declined dramatically in the past industrial, municipal, agricultural, and Kingdom Reservoir is apparently stable, century. The five remaining indigenous other point and nonpoint sources; while the downstream population may populations are isolated from one habitat alterations associated with be extirpated, representing a 69-percent another by dams or other factors. channelization and instream dredging/ reduction of its historical range. All populations face potential threats mining activities; and other natural and The most significant threat to the from competition with and predation by human-related factors that adversely existence of the sharpnose shiner is nonnative trout, and most populations modify the aquatic environment (e.g., reservoir development within its current face threats resulting from the alteration illegal dumping, introduction of range. The current water plan for Texas of their habitats, such as habitat invasive predators, drought, flooding). provides several reservoir options that fragmentation from dams or irrigation The sicklefin redhorse’s limited could be implemented within the diversion structures, stream dewatering, distribution make the species extremely Brazos River drainage. Additional high summer water temperatures, loss of vulnerable to the effects from single threats include irrigation and water riparian habitats, and entrainment in catastrophic events (such as toxic diversion, sedimentation, desalination, irrigation ditches. Severe drought likely chemical spills, major sedimentation industrial and municipal discharges, also affects all populations by reducing events, channel modification, etc.) and agricultural activities, instream sand water availability and reducing the the cumulative effects of lesser impacts and gravel mining, and the spread of extent of thermally suitable habitat. to the species habitat and numbers. invasive saltcedar. The current limited Projected climate changes will likely Although the majority of the streams distribution of the sharpnose shiner influence the severity and scope of these still occupied by the species occur in within the Upper Brazos River Basin threats in the future. As applied, areas that are presently primarily rural, makes it vulnerable to catastrophic existing regulatory mechanisms do not many of the communities within the events such as the introduction of appear to be adequate to address the watersheds of these streams are competitive species or prolonged primary threats to arctic grayling. In experiencing increasing development drought. The magnitude of threat is addition, four of five populations are at pressure, both commercial and considered high as reservoir risk from random environmental residential, and continue to develop and development within the species’ current fluctuations and genetic drift due to implement plans for upgrading and range may render remaining habitat their low abundance and isolation. The improving their infrastructure (e.g., unsuitable. The immediacy of threat is magnitude of these threats is high roads, water supplies, sewer/wastewater nonimminent because the most because one or more of these threats treatment systems, etc.) to provide for significant threat—major reservoir occurs in each known population in the increased densities of development. construction—is not likely to occur in Missouri River basin. The threats are Because of the effects this development the near future, and there is potential for imminent because they are currently can have on water quality and habitat implementing other water supply occurring and expected to continue in suitability for the sicklefin, along with options that could preclude reservoir the foreseeable future. Therefore, we its restricted distribution, the magnitude development. For these reasons, we have assigned the upper Missouri River of the threat to the species is high; assigned an LPN of 5 to this species. DPS of arctic grayling an LPN of 3. however, although the threats faced by Smalleye shiner (Notropis buccula)— Sicklefin redhorse (Moxostoma sp.)— the sicklefin redhorse are significant, it The following summary is based on The following summary is based on is not anticipated that the species will information contained in our files. No information contained in our files. No be subjected to these threats in the new information was provided in the new information was provided in the immediate future (within the next 1 to petition we received on May 11, 2004. petition we received on April 20, 2010. 2 years) and the immediacy of the The smalleye shiner is a small, pallid The sicklefin redhorse, a freshwater threats thus remains nonimminent. minnow endemic to the Brazos River fish, occupies cool to warm, moderate Accordingly, we have assigned an LPN Basin in Texas. Smalleye shiners were gradient creeks and rivers; during parts of 5 to this species. historically known to occur downstream of its early life stages, it also occupies Grotto sculpin (Cottus sp., sp. nov.)— of the three major reservoirs occurring the near-shore areas in large reservoirs. We continue to find that listing this on the Brazos River. Currently, the It feeds and spawns in gravel, cobble, species is warranted, but precluded as species is found upstream of Possum and boulder substrates with no, or very of the date of publication of this notice. Kingdom Reservoir (Upper Brazos River little, silt overlay. There are only two However, we are working on a proposed drainage) and may be extirpated from metapopulations of the species known listing rule that we expect to publish the downstream reach, representing a to survive: one in the Hiwassee River prior to making the next annual 54-percent reduction of its historical system in North Carolina and Georgia, resubmitted petition 12-month finding. range. and one in the Little Tennessee River Sharpnose shiner (Notropis The most significant threat to the system in North Carolina. oxyrhynchus)—The following summary existence of the smalleye shiner is All of the surviving occurrences of the is based on information contained in reservoir development within its current sicklefin redhorse continue to be our files. No new information was range. The current water plan for Texas restricted to relatively short reaches of provided in the petition we received on provides several reservoir options that the streams they occupy and expansion May 11, 2004. The sharpnose shiner is could be implemented within the of the populations is to a large degree a small, slender minnow, endemic to Brazos River drainage. Additional prohibited by existing hydropower the Brazos River Basin in Texas. threats include irrigation and water dams and in several cases cold-water Historically, the sharpnose shiner diversion, sedimentation, desalination, discharges from hydroelectric dam existed throughout the Brazos River and industrial and municipal discharges, operations. Other impacts and threats to several of its major tributaries. It has agricultural activities, instream sand the species and its habitat include: also been found in the Wichita River and gravel mining, and the spread of Siltation resulting from inadequate (within the Red River Basin) where it invasive saltcedar. The current limited erosion/sedimentation control during may have once naturally occurred, but distribution of the smalleye shiner agricultural, timbering, and construction has since been extirpated. Current within the Upper Brazos River drainage

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makes it vulnerable to catastrophic The New Mexico Department of Game is occurring to assess the effects of events such as the introduction of and Fish developed a recovery plan for climate change on this subspecies, and competitive species or prolonged Zuni bluehead sucker, which was agencies are working to restore drought. State law does not provide approved by the New Mexico State historically occupied streams and protection for the smalleye shiner. The Game Commission on December 15, develop a conservation plan to direct magnitude of threat is considered high, 2004. The recovery plan recommends conservation. The threats are of as reservoir development within the preservation and enhancement of extant moderate magnitude because there is species’ current range may render populations and restoration of historical good distribution and a comparatively remaining habitat unsuitable. The Zuni bluehead sucker populations. We large number of populations across the immediacy of threat is nonimminent predict that the recovery actions landscape, some populations have few because the most significant threat— prescribed by the recovery plan will threats present, and in other areas major reservoir construction—is not reduce and remove threats to this management actions are being taken to likely to occur in the near future, and subspecies, but these actions will help control the threat of nonnative there is potential for implementing require further development and trout. Overall, the threats are ongoing other water supply options that could authorization before they can be and, therefore, imminent. Based on preclude reservoir development. For implemented and threats are reduced. imminent threats of moderate these reasons, we assigned a LPN of 5 Because of the ongoing (imminent) magnitude, we assigned an LPN of 9 to to this species. threats of high magnitude, including this subspecies. Zuni bluehead sucker (Catostomus loss of habitat (historical and current Clams discobolus yarrowi)—The following from beaver activity), degradation of summary is based on information remaining habitat (nonnative species Texas hornshell (Popenaias popei)— contained in our files. No new and land development), drought, fire, The following summary is based on information was provided in the and climate change, we maintained an information contained in our files and petition we received on May 11, 2004. LPN of 3 for this subspecies. information provided by the New The Zuni bluehead sucker is a colorful Rio Grande cutthroat trout Mexico Department of Game and Fish fish less than 20 centimeters (8 inches) (Oncorhynchus clarki virginalis)—The and Texas Parks and Wildlife long. The range of the Zuni bluehead following summary is based on Department. The Texas hornshell is a sucker has been reduced by over 95 information contained in our files and freshwater mussel found in the Black percent. The Zuni bluehead sucker our status review published on May 14, River in New Mexico, and in the Rio currently occupies 4.8 river kilometers 2008 (73 FR 27900). Rio Grande Grande and the Devils River in Texas. (3 miles) in three headwater streams of cutthroat trout is one of 14 subspecies Until March 2008, the only known the Rio Nutria in New Mexico, and of cutthroat trout found in the western extant populations were in New potentially occurs in 44 river kilometers United States. Populations of this Mexico’s Black River and one locality in (27.5 miles) in the Kinlichee drainage of subspecies are in New Mexico and the Rio Grande near Laredo, Texas. In Arizona. However, the number of Colorado in drainages of the Rio Grande, March 2008, two new localities were occupied miles in Arizona is unknown, Pecos, and Canadian Rivers. Although confirmed in Texas: one in the Devils and the genetic composition of these once widely distributed in connected River, and one in the mainstem Rio fish is still under investigation. stream networks, Rio Grande cutthroat Grande in the Rio Grande Wild and Zuni bluehead sucker’s range trout populations now occupy about 10 Scenic River segment downstream of reduction and fragmentation is caused percent of historical habitat, and the Big Bend National Park. In 2011, the Rio by discontinuous surface-water flow, populations are fragmented and isolated Grande population near Laredo was introduced species, and habitat from one another. The majority of resurveyed and found to be large and degradation from fine sediment populations occur in high-elevation robust. deposition. The Zuni bluehead sucker streams. The primary threats to this species are persists in very small creeks that are Major threats include the loss of habitat alterations such as streambank subject to very low flows and drying suitable habitat that has occurred and is channelization, impoundments, and during periods of drought. Because of likely to continue occurring due to diversions for agriculture and flood climate change (warmer air water diversions, dams, stream drying, control, including a proposed low-water temperatures), streamflow is predicted habitat quality degradation, and, diversion dam just downstream of the to decrease in the Southwest. Warmer changes in hydrology; introduction of Rio Grande population near Laredo; winter and spring temperatures cause an nonnative trout and ensuing contamination of water by oil and gas increased fraction of precipitation to fall competition, predation, and activity; alterations in the natural as rain, resulting in a reduced snow hybridization; and whirling disease. In riverine hydrology; and increased pack, an earlier snow melt, and a longer addition, average air temperatures in the sedimentation and flood pulses from dry season leading to decreased Southwest have increased about 1 °C prolonged overgrazing and loss of native streamflow in the summer and a longer (2.5 °F) in the past 30 years, and they vegetation. Although riverine habitats fire season. These changes would have are projected to increase by another 1.2 throughout the species’ known occupied a negative effect on Zuni bluehead to 2.8 °C (3 to 7 °F) by 2050. Because range are under constant threat from sucker. Another major impact to trout require cold water, and water these ongoing or potential activities, populations of Zuni bluehead sucker temperatures depend in large part on air numerous conservation actions that will was the application of fish toxicants temperature, there is concern that the benefit the species are under way in through at least two dozen treatments in habitat of Rio Grande cutthroat trout New Mexico, including the completion the Rio Nutria and Rio Pescado between will further decrease in response to of a State recovery plan for the species 1960 and 1975. Large numbers of Zuni warmer water temperatures caused by and the drafting of a candidate bluehead suckers were killed during climate change. Wildfire and drought conservation agreement with these treatments. The Zuni bluehead (stream drying) are additional threats to assurances, and are beginning in Texas sucker is most likely extirpated from Rio Rio Grande cutthroat trout populations on the Big Bend reach of the Rio Pescado, as not one has been collected that are likely to increase in magnitude Grande. Due to these ongoing from that river since 1993. in response to climate change. Research conservation efforts, and because at

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least one of the populations appears to populations, gravel mining, municipal (impoundments, sedimentation, small be robust, the magnitude of the threats pollutants, agricultural runoff, nutrient population size, isolation of is moderate. However, the threats to the enrichment, and coal processing populations, gravel mining, municipal species are ongoing, and remain pollution) that result in mortality or pollutants, agricultural runoff, nutrient imminent. Thus, we maintained the reduced reproductive output. As the enrichment, and coal processing LPN of 8 for this species. threats are ongoing, they are imminent. pollution) that result in mortality or Fluted kidneyshell (Ptychobranchus We assigned an LPN of 2 to this mussel reduced reproductive output. As the subtentum)—The following summary is species. threats are ongoing, they are imminent. based on information contained in our Neosho mucket (Lampsilis We assigned an LPN of 2 to this mussel files. No new information was provided rafinesqueana)—We continue to find species. in the petition we received on May 11, that listing this species is warranted, but Rabbitsfoot (Quadrula cylindrica 2004. The fluted kidneyshell is a precluded as of the date of publication cylindrica)—We continue to find that freshwater mussel (Unionidae) endemic of this notice. However, we are working listing this species is warranted, but to the Cumberland and Tennessee River on a proposed listing rule that we precluded as of the date of publication systems (Cumberlandian Region) in expect to publish prior to making the of this notice. However, we are working Alabama, Kentucky, Tennessee, and next annual resubmitted petition 12- on a proposed listing rule that we Virginia. It requires shoal habitats in month finding. expect to publish prior to making the free-flowing rivers to survive and Slabside pearlymussel (Lexingtonia next annual resubmitted petition 12- successfully recruit new individuals dolabelloides)—The following summary month finding. into its populations. is based on information contained in This species has been extirpated from our files. The slabside pearlymussel is a Snails numerous regional streams and is no freshwater mussel (Unionidae) endemic Black mudalia (Elimia melanoides)— longer found in the State of Alabama. to the Cumberland and Tennessee River The following summary is based on Habitat destruction and alteration (e.g., systems (Cumberlandian Region) in information contained in our files. No impoundments, sedimentation, and Alabama, Kentucky, Tennessee, and new information was provided in the pollutants) are the chief factors that Virginia. It requires shoal habitats in petition we received on April 20, 2010. contributed to its decline. The fluted free-flowing rivers to survive and The black mudalia is a small snail that kidneyshell was historically known successfully recruit new individuals is found clinging to clean gravel, cobble, from at least 37 streams but is currently into its populations. boulders and/or logs in flowing water restricted to no more than 12 isolated Habitat destruction and alteration on shoals and riffles. The historical populations. Current status information (e.g., impoundments, sedimentation, distribution of the black mudalia for most of the 12 populations deemed and pollutants) are the chief factors encompassed over 250 miles of stream to be extant is available from recent contributing to the decline of this channel in the upper the Black Warrior periodic sampling efforts (sometimes species, which has been extirpated from River drainage in Alabama. The species annually) and other field studies, numerous regional streams and is no has been extirpated from more than 80 particularly in the upper Tennessee longer found in Kentucky. The slabside percent of that range by the construction River system. Some populations in the pearlymussel was historically known of two major dams on the main stem Cumberland River system have had from at least 32 streams, but is currently Black Warrior River and another dam on recent surveys as well (e.g., Wolf, Little restricted to no more than 11 isolated the lower Sipsey Fork. Other historical Rivers; Little South Fork; Horse Lick, stream segments. Current status causes of range curtailment in the un- Buck Creeks). Populations in Buck information for most of the 11 dammed river and stream channels of Creek, Little South Fork, Horse Lick populations deemed to be extant is the upper Black Warrior River drainage Creek, Powell River, and North Fork available from recent periodic sampling include coal mine drainage, industrial Holston River have clearly declined efforts (sometimes annually) and other and municipal pollution events, and over the past two decades. Based on field studies. Comprehensive surveys agricultural runoff. The mudalia is recent information, the overall have taken place in the Middle and currently known from 10 shoal population of the fluted kidneyshell is North Forks of the Holston River, Paint populations in five streams. declining rangewide. At this time, there Rock River, and Duck River in the past Water quality and habitat degradation is only one population—the Clinch several years. Based on recent are the biggest threats to the continued River/Copper Creek –where the species information, the overall population of existence of the black mudalia. Sources remains in large numbers and is viable, the slabside pearlymussel is declining of point and nonpoint pollution in the although smaller, viable populations rangewide. Of the five streams in which Black Warrior River Basin have been remain (e.g., Wolf, Little, North Fork the species remains in good numbers numerous and widespread. Pollution is Holston Rivers; Rock Creek). Most other (i.e., Clinch, North and Middle Forks of generated from inadequately treated populations are of questionable or the Holston River, Paint Rock River, and effluent from industrial plants, sanitary limited viability, with some on the verge Duck River), the Middle and upper landfills, sewage treatment plants, of extirpation (e.g., Powell River; Little North Fork Holston Rivers have poultry operations, and cattle feedlots. South Fork; Horse Lick, Buck, and undergone drastic recent declines, while Surface mining represents another Indian Creeks). Newly reintroduced the Clinch population has been in a threat to the biological integrity of populations in the Little Tennessee, longer-term decline. Most of the stream habitats. Runoff from old, Nolichucky, and Duck Rivers will remaining five populations (i.e., Powell abandoned coal mines generates hopefully begin to reverse the River, Big Moccasin Creek, Hiwassee pollution through acidification, downward population trend of this River, Elk River, Bear Creek) have increased mineralization, and sediment species. The threats are high in doubtful viability, and several if not all loading. Most of the stream segments magnitude, as the majority of of them may be on the verge of draining into black mudalia habitat populations of this species are severely extirpation. currently support their water quality affected by numerous threats The threats remain high in magnitude, classification standards. However, the (impoundments, sedimentation, small as all populations of this species are reach of the Locust Fork where the population size, isolation of severely affected in numerous ways species is found is identified on the

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Alabama 303(d) List (a list of water of native snails. These reductions also Although the Rosemont Copper Mine is bodies failing to meet their designated increase the likelihood that future scheduled to commence operations in water-use classifications) as impaired by storms will lead to the extinction of the near future, there exists uncertainty siltation, nutrients, or other habitat populations or species that rely on the regarding its scope, and therefore its alterations. Additional surveys that remaining canopy forest. In an effort to potential effect on habitat of the were initiated in 2011, will clarify the eradicate the giant African snail Rosemont talussnail. Accordingly, we extent and status of black mudalia (Achatina fulica), the alien rosy find that overall threats to the Rosemont populations. Because most of the stream carnivore snail (Euglandia rosea) was talussnail are nonimminent, and we segments currently occupied by black introduced in 1980. The rosy carnivore retain an LPN of 5 for this species. mudalia have sufficient water quality, snail has spread throughout the main Fragile tree snail (Samoana fragilis)— we conclude that the threats to the island of Tutuila. Numerous studies The following summary is based on species are moderate. Based on ongoing show that the rosy carnivore snail feeds information contained in our files. No threats of moderate magnitude, we on endemic island snails including the new information was provided in the assigned an LPN of 8 to this species. sisi, and is a major agent in their petition we received on May 11, 2004. Phantom Cave snail (Cochliopa declines and extirpations. At present, A tree-dwelling species, the fragile tree texana) and Phantom springsnail the major threat to long-term survival of snail is a member of the Partulidae (Tryonia cheatumi)—We continue to the native snail fauna in American family of snails, and is endemic to the find that listing these species is Samoa is predation by nonnative islands of Guam and Rota (Mariana warranted, but precluded as of the date predatory snails. These threats are Islands). Requiring cool and shaded of publication of this notice. However, ongoing and are therefore imminent. As native forest habitat, the species is now we are working on a proposed listing the threats occur throughout the entire known from one population on Guam rule that we expect to publish prior to range of the species and have a severe and from one population on Rota. making the next annual resubmitted effect on the survival of the snails, This species is currently threatened petition 12-month finding. leading to a relatively high likelihood of by habitat loss and modification and by Sisi snail (Ostodes strigatus)—The extinction, they are of a high magnitude. predation from nonnative predatory following summary is based on Therefore we assigned this species an snails and flatworms. Large numbers of information contained in our files. No LPN of 2. Philippine deer (Cervus mariannus) new information was provided in the Diamond Y Spring snail (Guam and Rota), pigs (Sus scrofra) petition we received on May 11, 2004. (Pseudotryonia adamantina) and (Guam), water buffalo (Bubalus bubalis) The sisi snail is a ground-dwelling Gonzales springsnail (Tryonia (Guam), and cattle (Bos taurus) (Rota) species in the Potaridae family, and is circumstriata)—We continue to find that directly alter the understory plant endemic to American Samoa. The listing these species is warranted but community and overall forest species is now known from a single precluded as of the date of publication microclimate, making it unsuitable for population on the island of Tutuila, of this notice. However, we are working snails. Predation by the alien rosy American Samoa. on a proposed listing rule that we carnivore snail (Euglandina rosea), the This species is currently threatened expect to publish prior to making the Manokwar flatworm (Platydemus by habitat loss and modification and by next annual resubmitted petition 12- manokwari), and possibly rats (Rattus predation from nonnative predatory month finding. spp.) is a serious threat to the survival snails. The decline of the sisi snail in Rosemont talussnail (Sonorella of the fragile tree snail. Field American Samoa has resulted, in part, rosemontensis)—the following summary observations have established that the from loss of habitat to forestry and is based on information in our files. The rosy carnivore snail and the Manokwar agriculture, and loss of forest structure petition we received on June 24, 2010, flatworm will readily feed on native to hurricanes and alien weeds that provided no new information beyond Pacific island tree snails, including the establish after these storms. All live sisi what we had already included in our Partulidae, such as those of the Mariana snails have been found in the leaf litter assessment of this species. The Islands. The rosy carnivore snail has beneath remaining intact forest canopy. Rosemont talussnail, a land snail in the caused the extirpation of many No snails were found in areas bordering family Helminthoglyptidae, is known populations and species of native snails agricultural plots or in forest areas that from three talus slopes in the Santa Rita throughout the Pacific islands. The were severely damaged by three Mountains, Pima County, Arizona. The Manokwar flatworm has also hurricanes (1987, 1990, and 1991). primary threat to Rosemont talussnail is contributed to the decline of native tree Under natural historical conditions, loss hard rock mining. The entire range of snails, in part due to its ability to ascend of forest canopy to storms did not pose the species is located on patented into trees and bushes that support a great threat to the long-term survival mining claims and can reasonably be native snails. Areas with populations of of these snails; enough intact forest with expected to be subjected to mining the flatworm usually lack partulid tree healthy populations of snails would activities in the foreseeable future. Hard snails or have declining numbers of support dispersal back into newly rock mining typically involves the snails. In addition, predation by rats regrown canopy forest. However, the blasting of hillsides and the crushing of may be a serious and ongoing threat to presence of alien weeds such as mile-a- ore-laden rock. Such activities would the fragile tree snail. Because all of the minute vine (Mikania micrantha) may kill talussnails and render their habitats threats occur rangewide and have a reduce the likelihood that native forest unsuitable for occupation. Because significant effect on the survival of this will re-establish in areas damaged by mining may occur across the entire snail species, leading to a relatively high the hurricanes. This loss of habitat to range of the species within the likelihood of extinction, they are high in storms is greatly exacerbated by foreseeable future, potentially resulting magnitude. The threats are also ongoing expanding agriculture. Agricultural in rangewide habitat destruction and and thus are imminent. Therefore, we plots on Tutuila have spread from low population losses, the threats are of a assigned this species an LPN of 2. elevations up to middle and some high high magnitude. However, mining on Guam tree snail (Partula radiolata)— elevations, greatly reducing the forest patented mining claims, although a The following summary is based on area and thus reducing the resilience of reasonably anticipated action, is neither information contained in our files. No native forests and Tutuila’s populations currently ongoing nor imminent. new information was provided in the

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petition we received on May 11, 2004. scrofa), Philippine deer (Cervus known from one population on the A tree-dwelling species, the Guam tree mariannus), cattle (Bos taurus), water island of Aguiguan. snail is a member of the Partulidae buffalo (Bubalus bubalis), and goats This species is currently threatened family of snails and is endemic to the (Capra hircus)) have caused severe by habitat loss and modification and by island of Guam. Requiring cool and damage to native forest vegetation by predation from nonnative predatory shaded native forest habitat, the species browsing directly on plants, causing snails. In the 1930s, the island of is now known from 22 populations on erosion and retarding forest growth and Aguiguan was mostly cleared of native Guam. regeneration. This in turn reduces the forest to support sugar cane and This species is primarily threatened quantity and quality of forested habitat pineapple production. The abandoned by predation from nonnative predatory for the humped tree snail. Currently, fields and airstrip are now overgrown snails, flatworms, and possibly rats populations of feral ungulates are found with alien weeds. The remaining native (Rattus spp.). In addition, the species is on the islands of Guam (deer, pigs, and forest understory has greatly suffered also threatened by habitat loss and water buffalo), Rota (deer and cattle), from large and uncontrolled populations degradation. Predation by the alien rosy Aguiguan (goats), Saipan (deer, pigs, of alien goats and the invasion of weeds. carnivore snail (Euglandina rosea) and and cattle), Alamagan (goats, pigs, and Goats (Capra hircus) have caused severe the alien Manokwar flatworm cattle), and Pagan (cattle, goats, and damage to native forest vegetation by (Platydemus manokwari) is a serious pigs). Goats were eradicated from browsing directly on plants, causing threat to the survival of the Guam tree Sarigan in 1998, and the humped tree erosion and retarding forest growth and snail (see summary for the fragile tree snail has increased in abundance on regeneration. This in turn reduces the snail, above). In addition, predation by that island, likely in response to the quantity and quality of forested habitat rats may be a serious and ongoing threat removal of all the goats. However, the for Langford’s tree snail. Predation by to the Guam tree snail. On Guam, open population of humped tree snails on the alien rosy carnivore snail agricultural fields and other areas prone Anatahan is likely extirpated due to the (Euglandina rosea) and by the to erosion were seeded with massive volcanic explosions of the Manokwar flatworm (Platydemus tangantangan (Leucaena leucocephala) island beginning in 2003 and still manokwari) (see summary for the fragile by the U.S. military. Tangantangan continuing, and the resulting loss of up tree snail, above) is also a serious threat grows as a single species stand with no to 95 percent of the vegetation on the to the survival of Langford’s tree snail. substantial understory. The island. Predation by the alien rosy In addition, predation by rats (Rattus microclimatic condition is dry with carnivore snail (Euglandina rosea) and spp.) may be a serious and ongoing little accumulation of leaf litter humus the alien Manokwar flatworm threat to Langford’s tree snail. All of the and is particularly unsuitable as Guam (Platydemus manokwari) is a serious threats are occurring rangewide, and no tree snail habitat. In addition, native threat to the survival of the humped tree efforts to control or eradicate the forest cannot reestablish and grow snail (see summary for the fragile tree nonnative predatory snail species or where this alien weed has become snail, above). In addition, predation by rats, or to reduce habitat loss, are being established. Because all of the threats rats (Rattus spp.) may be a serious and undertaken. The magnitude of threats is occur rangewide and have a significant ongoing threat to the humped tree snail. high because they result in direct effect on the survival of this snail The magnitude of threats is high mortality or significant population species, leading to a relatively high because these alien predators cause declines to Langford’s tree snail likelihood of extinction, they are high in significant population declines to the rangewide. A survey of Aguiguan in magnitude. The threats are also ongoing humped tree snail rangewide. These November 2006 failed to find any live and thus are imminent. Therefore, we threats are ongoing and thus are Langford’s tree snails. These threats are assigned this species an LPN of 2. imminent. Therefore, we assigned this also ongoing and thus are imminent. Humped tree snail (Partula gibba)— species an LPN of 2. Therefore, we assigned this species an The following summary is based on Lanai tree snail (Partulina LPN of 2. information contained in our files. No semicarinata)—We continue to find that Newcomb’s tree snail (Newcombia new information was provided in the listing this species is warranted, but cumingi)—We continue to find that petition we received on May 11, 2004. precluded as of the date of publication listing this species is warranted, but A tree-dwelling species, the humped of this notice. However, we are working precluded as of the date of publication tree snail is a member of the Partulidae on a proposed listing rule that we of this notice. However, we are working family of snails, and was originally expect to publish prior to making the on a proposed listing rule that we known from the island of Guam and the next annual resubmitted petition 12- expect to publish prior to making the Commonwealth of the Northern Mariana month finding. next annual resubmitted petition 12- Islands (islands of Rota, Aguiguan, Lanai tree snail (Partulina month finding. Tinian, Saipan, Anatahan, Sarigan, variabilis)—We continue to find that Tutuila tree snail (Eua zebrina)—The Alamagan, and Pagan). Most recent listing this species is warranted, but following summary is based on surveys revealed a total of 14 precluded as of the date of publication information contained in our files. No populations on the islands of Guam, of this notice. However, we are working new information was provided in the Rota, Aguiguan, Sarigan, Saipan, on a proposed listing rule that we petition we received on May 11, 2004. Alamagan, and Pagan. Although still the expect to publish prior to making the A tree-dwelling species, the Tutuila tree most widely distributed tree snail next annual resubmitted petition 12- snail is a member of the Partulidae endemic in the Mariana Islands, month finding. family of snails, and is endemic to remaining population sizes are often Langford’s tree snail (Partula American Samoa. The species is known small. langfordi)—The following summary is from 32 populations on the islands of This species is currently threatened based on information contained in our Tutuila, Nuusetoga, and Ofu. by habitat loss and modification and by files. No new information was provided This species is currently threatened predation from nonnative predatory in the petition we received on May 11, by habitat loss and modification and by snails, flat worms, and possibly rats 2004. A tree-dwelling species, predation from nonnative predatory (Rattus spp.). Throughout the Mariana Langford’s tree snail is a member of the snails and rats. All live Tutuila tree Islands, feral ungulates (pigs (Sus Partulidae family of snails, and is snails were found on understory

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vegetation beneath remaining intact sensitive species; installing educational the magnitude of threats to a moderate forest canopy. No snails were found in signage; and increasing staff presence, level and greatly reduces the chances of areas bordering agricultural plots or in including law enforcement and a extirpation or extinction. The forest areas that were severely damaged volunteer site steward during the 6- immediacy of the threat of groundwater by three hurricanes (1987, 1990, and month period of peak visitor use. These withdrawal is uncertain, due to 1991). (See summary for the sisi snail, conservation measures have reduced the conflicting information regarding above, regarding impacts of alien weeds magnitude of threats to the species to imminence. However, overall, the and of the rosy carnivore snail.) Rats moderate to low; all remaining threats threats are imminent, because (Rattus spp.) have also been shown to are nonimminent and involve long-term modification of the species’ habitat by devastate snail populations, and rat- changes to the habitat for the species threats other than groundwater chewed snail shells have been found at resulting from past impacts. Until we withdrawal is currently occurring. sites where the Tutuila snail occurs. At can get data from a monitoring program Therefore, we retain an LPN of 8 for the present, the major threat to the long- that allows us to assess the long-term Page springsnail. term survival of the native snail fauna trend of the species, we have assigned Phantom springsnail (Tyronia in American Samoa is predation by a LPN of 11. cheatumi)—See summary above under nonnative predatory snails and rats. The Gonzales springsnail (Tryonia Phantom Cave snail (Cochliopa texana). circumstriata)—See summary above magnitude of threats is high because Insects they result in direct mortality or under Diamond Y Spring snail significant population declines to the (Pseudotryonia adamantina). Mariana eight spot butterfly Tutuila tree snail rangewide. The threats Huachuca springsnail (Pyrgulopsis (Hypolimnas octucula mariannensis)— are also ongoing and thus are imminent. thompsoni)—See above in ‘‘Listing The following summary is based on Therefore, we assigned this species an Priority Changes in Candidates.’’ The information contained in our files. No LPN of 2. above summary is based on information new information was provided in the Elongate mud meadows springsnail contained in our files. petition we received on May 11, 2004. (Pyrgulopsis notidicola)—The following Page springsnail (Pyrgulopsis The Mariana eight spot butterfly is a summary is based on information morrisoni)—The following summary is nymphalid butterfly species that feeds contained in our files. No new based on information contained in our upon two host plants, Procris information was provided in the files. The Page springsnail is known to pedunculata and Elatostema calcareum. petition received on May 11, 2004. The exist only within a complex of springs Endemic to the islands of Guam and following summary is based on located within an approximately 0.93- Saipan, the species is now known from information contained in our files. mi (1.5-km) stretch along the west side 10 populations on Guam. This species is Pyrgulopsis notidicola is endemic to of Oak Creek around the community of currently threatened by predation and Soldier Meadow, which is located at the Page Springs, and within springs parasitism. The Mariana eight spot northern extreme of the western arm of located along Spring Creek, tributary to butterfly has extremely high mortality of the Black Rock Desert in the transition Oak Creek, Yavapai County, Arizona. eggs and larvae due to predation by zone between the Basin and Range The primary threat to the Page alien ants and wasps. Because the threat Physiographic Province and the springsnail is modification of habitat by of parasitism and predation by Columbia Plateau Province, Humboldt domestic use, agriculture, ranching, fish nonnative insects occur rangewide and County, Nevada. The type locality, and hatchery operations, recreation, and can cause significant population the only known location of the species, groundwater withdrawal. Many of the declines to this species, they are high in occurs in four separate stretches of springs where the species occurs have magnitude. The threats are imminent thermal (between 45° and 32 °C, 113° been subjected to some level of because they are ongoing. Therefore, we and 90 °F) aquatic habitat. The first modification. Based on recent survey assigned an LPN of 3 for this subspecies. stretch is the largest at approximately data, it appears that the Page springsnail Mariana wandering butterfly (Vagrans 600 m (1,968 ft) long and 2 m (6.7 ft) is abundant within natural habitats and egestina)—The following summary is wide. The other stretches where P. persists in modified habitats, albeit at based on information contained in our notidicola occurs are less than 6 m (19.7 reduced densities. Arizona Game and files. No new information was provided ft) long and 0.5 m (1.6 ft) wide. Fish Department (AGFD) management in the petition we received on May 11, Pyrgulopsis notidicola occurs only in plans for the Bubbling Ponds and Page 2004. The Mariana wandering butterfly shallow, flowing water on gravel Springs fish hatcheries include is a nymphalid butterfly species that substrate. The species does not occur in commitments to replace lost habitat and feeds upon a single host plant species, deep water (i.e., impoundments) where to monitor remaining populations of Maytenus thompsonii. Originally known water velocity is low, gravel substrate is invertebrates such as the Page from and endemic to the islands of absent, and sediment levels are high. springsnail. The candidate conservation Guam and Rota, the species is now The species and its habitat are agreement with assurances (CCAA) for known from one population on Rota. threatened by recreational use in the the Page springsnail calls for This species is currently threatened by areas where it occurs as well as the implementation of conservation alien predation and parasitism. The ongoing impacts of past water measures such as restoration and Mariana wandering butterfly is likely diversions and livestock grazing and creation of natural springhead integrity, predated by alien ants and parasitized current off-highway vehicle travel. including springs on AGFD properties. by native and nonnative parasitoids. Conservation measures implemented by In fact, several conservation measures Because the threats of parasitism and the Bureau of Land Management benefitting the species have already predation by nonnative insects occur include installing fencing to exclude been implemented. Additionally, the rangewide and can cause significant livestock, wild horses, burros and other National Park Service has expressed an population declines to this species, large mammals; closing access roads to interest in restoring natural springhead leading to a relatively high likelihood of spring, riparian, and wetland areas and integrity to Shea Springs, a site extinction, they are high in magnitude. the limiting vehicles to designated historically occupied by Page These threats are imminent because routes; establishing a designated springsnail. Accordingly, ongoing they are ongoing. Therefore, we campground away from the habitats of implementation of the CCAA reduces assigned an LPN of 2 for this species.

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Sequatchie caddisfly (Glyphopsyche the Clifton Cave beetle is found provide Cave) when one specimen of the species sequatchie)—The following summary is a unique and fragile environment that was found during that survey. Foster based on information in our files. No supports a variety of species that have Cave is on a preserve owned and new information was provided in the evolved to survive and reproduce under managed by the Tennessee Department petition we received on May 11, 2004. the demanding conditions found in cave of Conservation. In 2006, specimens of The Sequatchie caddisfly is known from ecosystems. The limited distribution of this species were discovered in Bellamy two spring runs that emerge from caves the species makes it vulnerable to Cave and in Darnell Spring Cave (part in Marion County, Tennessee: Owen isolated events that would only have a of the same cave complex as Foster Spring Branch (the type locality) and minimal effect on more wide-ranging Cave). All of these sites are in close Martin Spring run in the Battle Creek insects. Events such as toxic chemical proximity to each other. Bellamy Cave system. In 1998, biologists estimated spills, discharges of large amounts of is owned and managed by the population sizes at 500 to 5,000 polluted water or indirect impacts from Tennessee Wildlife Resources Agency individuals for Owen Spring Branch off-site construction activities, closure (TWRA). Both Foster Cave and Bellamy and 2 to 10 times higher at Martin of entrances, alteration of entrances, or Cave were first acquired and protected Spring, due to the greater amount of the creation of new entrances could by The Nature Conservancy and later apparently suitable habitat. In spite of have serious adverse impacts on this transferred to the State for long-term greater amounts of suitable habitat at the species. Therefore, the magnitude of protection and management. Martin Spring run, Sequatchie threat is high for this species. The The threats are nonimminent because caddisflies are more difficult to find at threats are nonimminent because there there are no known projects planned this site, and in 2001 (the most recent are no known projects planned that that would affect the species in the next survey) the Sequatchie caddisfly was would affect the species in the near few years. Because it occurs at three relatively ‘‘abundant’’ at the Owen future. We therefore have assigned an locations and it receives some Spring Branch location, while only two LPN of 5 to this species. protection under a cooperative individuals were observed at the Martin Coleman cave beetle management agreement and protective Spring. (Pseudanophthalmus colemanensis)— ownership, the magnitude of threats is Threats to the Sequatchie caddisfly The following summary is based upon moderate to low. Thus, we have include siltation, point and nonpoint information contained in our files. No assigned an LPN of 11 to this species. discharges from municipal and new information was provided in the Icebox Cave beetle industrial activities, and introduction of petition we received on April 20, 2010. (Pseudanophthalmus frigidus)—The toxicants during episodic events. These The Coleman cave beetle is a small, following summary is based upon threats, coupled with the extremely eyeless, reddish-brown, predatory insect information contained in our files. No limited distribution of the species, its that feeds upon small cave new information was provided in the apparent small population size, the invertebrates. It is cave dependent and petition we received on May 11, 2004. limited amount of occupied habitat, is not found outside the cave Icebox Cave beetle is a small, eyeless, ease of accessibility, and the annual life environment. It is only known from cycle of the species, are all factors that three Tennessee caves. reddish-brown, predatory insect that leave the Sequatchie caddisfly The limestone caves in which this feeds upon small cave invertebrates. It vulnerable to extirpation. Therefore, the species is found provide a unique and is not found outside the cave magnitude of the threat is high. These fragile environment that support a environment, and is only known from threats are gradual, and there is no basis variety of species that have evolved to one privately owned Kentucky cave. to conclude that they are imminent. survive and reproduce under the The limestone cave in which this Based on high-magnitude and demanding conditions found in cave species is found provides a unique and nonimminent threats, we assigned this ecosystems. Caves and the species that fragile environment that supports a species an LPN of 5. are completely dependent upon them variety of species that have evolved to Clifton Cave beetle receive the energy that forms the basis survive and reproduce under the (Pseudanophthalmus caecus)—The of the cave food chain from outside the demanding conditions found in cave following summary is based upon cave. This energy can be in the form of ecosystems. The species has not been information contained in our files. No bat guano deposited by cave-dependent observed since it was originally new information was provided in the bats, large or small woody debris collected, but species experts believe petition we received on May 11, 2004. washed or blown into the cave, or tiny that it may still exist in the cave in low Clifton Cave beetle is a small, eyeless, bits of organic matter carried into the numbers. The limited distribution of the reddish-brown, predatory insect that cave by water through small cracks in species makes it vulnerable to isolated feeds upon small cave invertebrates. It the rocks overlaying the cave. events that would only have a minimal is cave dependent, and is not found The Coleman cave beetle was effect on more wide-ranging insects. outside the cave environment. Clifton originally known only from the Events such as toxic chemical spills or Cave beetle is only known from two privately owned Coleman Cave in discharges of large amounts of polluted privately owned Kentucky caves. Soon Montgomery County. This cave formerly water, or indirect impacts from off-site after the species was first collected in supported a colony of endangered gray construction activities, closure of 1963 in one cave, the cave entrance was bats. The bats have abandoned this cave entrances, alteration of entrances, or the enclosed due to road construction. We because of air flow changes in the cave creation of new entrances, could have do not know whether the species still caused by closure of an upper entrance serious adverse impacts on this species. occurs at the original location or if it has to the cave. Although the cave is Therefore, the magnitude of threat is been extirpated from the site by the protected by a cooperative management high for this species because it is closure of the cave entrance. Other agreement with the landowner, the limited in distribution and the threats caves in the vicinity of this cave were upper entrance has not been restored would result in a high level of mortality surveyed for the species during 1995 and the bats have not returned to the or reduced reproductive capacity. The and 1996, and only one additional site cave. A new location for the species was threats are nonimminent because there was found to support the Clifton Cave discovered during a biological inventory are no known projects planned that beetle. The limestone caves in which of Foster Cave (also known as Darnell would affect the species in the near

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future. We therefore have assigned an fragile environment that supports a precluded as of the date of publication LPN of 5 to this species. variety of species that have evolved to of this notice. However, we are working Inquirer Cave beetle survive and reproduce under the on a proposed listing rule that we (Pseudanophthalmus inquisitor)—The demanding conditions found in cave expect to publish prior to making the following summary is based upon ecosystems. The limited distribution of next annual resubmitted petition 12- information contained in our files. No the species makes it vulnerable to month finding. new information was provided in the isolated events that would only have a Orangeblack Hawaiian damselfly petition we received on May 11, 2004. minimal effect on more wide-ranging (Megalagrion xanthomelas)—The The Inquirer Cave beetle is a fairly insects. Events such as toxic chemical following summary is based on small, eyeless, reddish-brown, predatory spills, discharges of large amounts of information contained in our files. No insect that feeds upon small cave polluted water, or indirect impacts from new information was provided in the invertebrates. It is not found outside the off-site construction activities, closure petition we received on May 11, 2004. cave environment, and is only known of entrances, alteration of entrances, or The orangeblack Hawaiian damselfly is from one privately owned Tennessee the creation of new entrances could a stream-dwelling species endemic to cave. have serious adverse impacts on this the Hawaiian Islands of Kauai, Oahu, The limestone cave in which this species. The magnitude of threat is high Molokai, Maui, Lanai, and Hawaii. The species is found provides a unique and for this species, because it is limited in species no longer is found on Kauai, and fragile environment that supports a distribution and the threats would have is now restricted to 16 populations on variety of species that have evolved to severe negative impacts on the species. the islands of Oahu, Maui, Molokai, survive and reproduce under the The threats are nonimminent because Lanai, and Hawaii. This species is demanding conditions found in cave there are no known projects planned threatened by predation from alien ecosystems. The species was last that would affect the species in the near aquatic species such as fish and observed in 2006. The limited future. We therefore have assigned an predacious insects, and habitat loss distribution of the species makes it LPN of 5 to this species. through dewatering of streams and vulnerable to isolated events that would Tatum Cave beetle invasion by nonnative plants. Nonnative only have a minimal effect on more (Pseudanophthalmus parvus) — The fish and insects prey on the naiads of wide-ranging insects. The area around following summary is based upon the damselfly, and loss of water reduces the only known site for the species is in information contained in our files. No the amount of suitable naiad habitat a rapidly expanding urban area. The new information was provided in the available. Invasive plants (e.g., entrance to the cave is protected by the petition we received on May 11, 2004. California grass (Brachiaria mutica)) landowner through a cooperative Tatum Cave beetle is a small, eyeless, also contribute to loss of habitat by management agreement with the reddish-brown, predatory insect that forming dense, monotypic stands that Service, The Nature Conservancy, and feeds upon cave invertebrates. It is not completely eliminate any open water. Tennessee Wildlife Resources Agency; found outside the cave environment, Nonnative fish and plants are found in however, a sinkhole that drains into the and is only known from one privately all the streams the orangeblack cave system is located away from the owned Kentucky cave. damselfly occur in, except the Oahu protected entrance and is near a The limestone cave in which this location, where there are no nonnative highway. Events such as toxic chemical species is found provides a unique and fish. We assigned this species an LPN of spills, discharges of large amounts of fragile environment that supports a 8 because, although the threats are polluted water, or indirect impacts from variety of species that have evolved to ongoing and therefore imminent, they off-site construction activities could survive and reproduce under the affect the survival of the species in adversely affect the species and the cave demanding conditions found in cave varying degrees throughout the range of habitat. ecosystems. The species has not been the species and are therefore of The magnitude of threat is high for observed since 1965, but species experts moderate magnitude. this species because it is limited in believe that it still exists in low Picture-wing fly (Drosophila distribution and the threats would have numbers. The limited distribution of the digressa)—We continue to find that negative impacts on its continued species makes it vulnerable to isolated listing this species is warranted but existence. The threats are nonimminent events that would only have a minimal precluded as of the date of publication because there are no known projects effect on more wide-ranging insects. of this notice. However, we are working planned that would affect the species in Events such as toxic chemical spills, on a proposed listing rule that we the near future and the species receives discharges of large amounts of polluted expect to publish prior to making the some protection under a cooperative water, or indirect impacts from off-site next annual resubmitted petition 12- management agreement. We therefore construction activities, closure of month finding. have assigned an LPN of 5 to this entrances, alteration of entrances, or the Stephan’s riffle beetle (Heterelmis species. creation of new entrances could have stephani)—The following summary is Louisville Cave beetle serious adverse impacts on this species. based on information contained in our (Pseudanophthalmus troglodytes)—The The magnitude of threat is high for this files. No new information was provided following summary is based upon species, because its limited numbers in the petition received on May 11, information contained in our files. No mean that any threats could severely 2004. The Stephan’s riffle beetle is an new information was provided in the affect its continued existence. The endemic riffle beetle found in limited petition we received on May 11, 2004. threats are nonimminent because there spring environments within the Santa The Louisville cave beetle is a small, are no known projects planned that Rita Mountains, Pima County, Arizona. eyeless, reddish-brown, predatory insect would affect the species in the near The beetle is known from Sylvester that feeds upon cave invertebrates. It is future. We therefore have assigned an Spring in Madera Canyon, within the not found outside the cave environment, LPN of 5 to this species. Coronado National Forest. Threats to and is only known from two privately Taylor’s (Whulge, Edith’s) that spring are largely from habitat owned Kentucky caves. checkerspot butterfly (Euphydryas modification, recreational activities in The limestone caves in which this editha taylori)—We continue to find the springs, and potential changes in species is found provide a unique and that listing this species is warranted, but water quality and quantity due to

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catastrophic natural events and climate Mardon skipper (Polites mardon)— backlog of long-unburned habitat within change. The threats are of low to We continue to find that listing this conservation areas remains. moderate magnitude based on our species is warranted, but precluded as Overcollection and pesticide use are current knowledge of the permanence of of the date of publication of this notice. additional concerns. Because this threats and the likelihood that the However, we are working on a proposed species is narrowly distributed with species will persist in areas that are listing rule that we expect to publish specific habitat requirements and small unaffected by the threats. Although the prior to making the next annual populations, any of the threats could threats from climate change are resubmitted petition 12-month finding. have a significant impact on the survival expected to occur over many years, the Meltwater lednian stonefly (Lednia of the species. Therefore, the magnitude threats from recreational use are tumana)—See above in ‘‘Listing Priority of threats is high. Although the majority ongoing. Therefore, the threats are Changes in Candidates.’’ The above of its historical range has been lost, imminent. Thus, we retain an LPN of 8 summary is based on information degraded, and fragmented, numerous for the Stephan’s riffle beetle. contained in our files. sites are protected and land managers Dakota skipper (Hesperia dacotae)— Coral Pink Sand Dunes tiger beetle are implementing prescribed fire at The following summary is based on (Cicindela limbata albissima)—We some sites; these actions are expected to information contained in our files, continue to find that listing this species restore habitat and help reduce threats including information from the petition is warranted but precluded as of the and have already helped stabilize and received on May 12, 2003. The Dakota date of publication of this notice. improve the populations. Therefore, skipper is a small- to mid-sized butterfly However, we are working on a proposed overall, the threats are nonimminent, that inhabits high-quality tallgrass and listing rule that we expect to publish and we assigned the Highlands tiger mixed-grass prairie in Minnesota, North prior to making the next annual beetle an LPN of 5. Dakota and South Dakota in the United resubmitted 12-month petition finding. States, and the provinces of Manitoba Highlands tiger beetle (Cicindela Arachnids and Saskatchewan in Canada. The highlandensis)—The following Warton’s cave meshweaver (Cicurina species is presumed to be extirpated summary is based on information wartoni)—See above in ‘‘Listing Priority from Iowa and Illinois and from many contained in our files. No new Changes in Candidates.’’ The above sites within occupied U.S. States. information was provided in the summary is based on information The Dakota skipper is threatened by petition we received on May 11, 2004. contained in our files. degradation of its native prairie habitat The Highlands tiger beetle is narrowly Crustaceans by overgrazing, invasive species, gravel distributed and restricted to areas of mining, and herbicide applications; bare sand within scrub and sandhill on Anchialine pool shrimp (Metabetaeus inbreeding, population isolation, and ancient sand dunes of the Lake Wales lohena)—The following summary is prescribed fire threaten some Ridge in Polk and Highlands Counties, based on information contained in our populations. Prairie succeeds to Florida. Adult tiger beetles have been files. No new information was provided shrubland or forest without periodic most recently found at 40 sites at the in the petition we received on May 11, fire, grazing, or mowing; thus, the core of the Lake Wales Ridge. In 2004– 2004. Metabetaeus lohena is an species is also threatened at sites where 2005 surveys, a total of 1,574 adults anchialine pool-inhabiting species of such disturbances are not applied. The were found at 40 sites, compared with shrimp belonging to the family Service and other Federal agencies, 643 adults at 31 sites in 1996, 928 adults Alpheidae. This species is endemic to State agencies, the Sisseton-Wahpeton at 31 sites in 1995, and 742 adults at 21 the Hawaiian Islands and is currently Sioux Tribe, and some private sites in 1993. Of the 40 sites in the known from populations on the islands organizations (e.g., The Nature 2004–2005 surveys with one or more of Oahu, Maui, and Hawaii. The Conservancy) protect and manage some adults, results ranged from 3 sites with primary threats to this species are Dakota skipper sites. Careful and large populations of over 100 adults, to predation by fish (which do not considered management is always 13 sites with fewer than 10 adults. naturally occur in the pools inhabited necessary to ensure the species’ Results from a limited removal study at by this species) and habitat loss from persistence, even at protected sites. The four sites and similar studies suggest degradation (primarily from illegal trash species may be secure at a few sites that the actual population size at some dumping). The pools where this species where public and private landowners survey sites can be as much as two occurs on the islands of Maui and manage native prairie in ways that times as high as indicated by the visual Hawaii are located within State Natural conserve Dakota skipper, but index counts. If assumptions are correct Area Reserves (NAR) and in a National approximately half of the inhabited sites and unsurveyed habitat is included, Park. Both the State NARs and the are privately owned with little or no then the total number of adults at all National Park prohibit the collection of protection. A few private sites are survey sites might be 3,000 to 4,000. the species and the disturbance of the protected from conversion by Habitat loss and fragmentation and pools. However, enforcement of easements, but these do not preclude lack of fire and disturbances to create collection and disturbance prohibitions adverse effects from overgrazing. The open habitat conditions are serious is difficult, and the negative effects from threats are such that the Dakota skipper threats; remaining patches of suitable the introduction of fish are extensive warrants listing. The threats are habitat are disjunct and isolated. and happen quickly. On Oahu, one pool moderate in magnitude because some Populations occupy relatively small is located in a National Wildlife Refuge, sites are protected through careful and patches of habitat and are small and and is protected from collection and considered management, and therefore isolated; individuals have difficulty disturbance to the pool. However, on they do not affect the species uniformly dispersing between suitable habitats. State-owned land where the species throughout its range. The threats are These factors pose serious threats to the occurs, there is no protection from ongoing, and therefore imminent. We species. Although significant progress in collection or disturbance of the pools. assigned this species an LPN of 8 to implementing prescribed fire has Therefore, threats to this species could reflect the immediacy of threats to occurred over the last 10 years through have a significant adverse effect on the remnant habitat, particularly on private collaborative partnerships and the Lake survival of the species, leading to a lands. Wales Ridge Prescribed Fire Team, a relatively high likelihood of extinction,

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and are of a high magnitude. However, the Hawaiian Islands, and is currently area occupied is approximately 6 the primary threats of predation from known from 2 pools on the island of hectares (15 acres). The population fish and loss of habitat due to Maui and 13 pools on the island of fluctuates from year to year without any degradation are nonimminent overall, Hawaii. The primary threats to this clear trends. Population estimates for because on the islands of Maui and species are predation from fish (which the years from 1985 through 2009, Hawaii no fish were observed in any of do not naturally occur in the pools ranged from a high of approximately the pools where this species occurs and inhabited by this species) and habitat 130,000 plants in 1997, to a low of there has been no documented trash loss due to degradation (primarily from approximately 40,000 plants in 2003. In dumping in these pools. Only one site illegal trash dumping). The pools where 2009, when the population was last on Oahu had a trash dumping instance, this species occurs on Maui are located monitored, the estimated total and in that case the trash was cleaned within a State Natural Area Reserve population increased again to just over up immediately and the species (NAR). Twelve of the pools on the 120,000 plants. subsequently observed. No additional island of Hawaii are located within a The factors currently threatening dumping events are known to have State NAR. Hawaii’s State statutes Abronia alpina include natural and occurred. Therefore, we assigned this prohibit the collection of the species human habitat alteration, lowering of species an LPN of 5. and the disturbance of the pools in State the water table due to erosion within the Anchialine pool shrimp NARs. However, enforcement of these meadow system, and recreational use (Palaemonella burnsi)—The following prohibitions is difficult, and the within meadow habitats. Lodgepole summary is based on information negative effects from the introduction of pines are encroaching upon meadow contained in our files. No new fish are extensive and happen quickly. habitat with trees germinating within A. information was provided in the In addition, there are no prohibitions for alpina habitat, occupying up to 20 petition we received on May 11, 2004. either removal of the species or percent of two A. alpina Palaemonella burnsi is an anchialine disturbance to the pool for the one pool subpopulations. Lodgepole pine pool-inhabiting species of shrimp located outside a NAR on the island of encroachment may alter soil belonging to the family Palaemonidae. Hawaii. Therefore, threats to this characteristics by increasing organic This species is endemic to the Hawaiian species could have a significant adverse matter levels, decreasing porosity, and Islands and is currently known from 3 effect on the survival of the species, moderating diurnal temperature pools on the island of Maui and 22 leading to a relatively high likelihood of fluctuations, thus reducing the pools on the island of Hawaii. The extinction, and thus remain at a high competitive ability of A. alpina to primary threats to this species are magnitude. However, the threats to the persist in an environment more predation by fish (which do not species are nonimminent because, hospitable to other plant species. naturally occur in the pools inhabited during 2004 and 2007 surveys, no fish The habitat occupied by Abronia by this species) and habitat loss due to were observed in the pools where these alpina directly borders the meadow degradation (primarily from illegal trash shrimp occur on Maui, and no fish were system, which is supported by the dumping). The pools where this species observed in the one pool on the island South Fork of the Kern River. The river occurs on Maui are located within a of Hawaii during a site visit in 2005. In flows through the meadow, at times State Natural Area Reserve (NAR). addition, there were no signs of trash coming within 15 m (50 ft) of Abronia Hawaii’s State statutes prohibit the dumping or fill in any of the pools alpina habitat, particularly in the collection of the species and the where the species occurs. Therefore, we vicinity of five subpopulations. disturbance of the pools in State NARs. assigned this species an LPN of 5. Livestock trampling, along with the On the island of Hawaii, the species Anchialine pool shrimp (Vetericaris removal of bank stabilizing vegetation occurs within a State NAR and a chaceorum)—We continue to find that by grazing livestock, has contributed to National Park, and collection and listing this species is warranted, but downcutting of the river channel disturbance are also prohibited. precluded as of the date of publication through the meadow, leaving the However, enforcement of these of this notice. However, we are working meadow subject to potential alteration prohibitions is difficult, and the on a proposed listing rule that we by lowering of the water table. In 2001, negative effects from the introduction of expect to publish prior to making the the U.S. Forest Service began resting the fish are extensive and happen quickly. next annual resubmitted 12-month grazing allotment for 10 years, Therefore, threats to this species could petition finding. eliminating cattle use up through the have a significant adverse effect on the present time. The U.S. Forest Service is Flowering Plants survival of the species, leading to a currently assessing the data collected on relatively high likelihood of extinction, Abronia alpina (Ramshaw Meadows the rested allotment and, if the data and are of a high magnitude. However, sand-verbena)—The following summary indicate that sufficient watershed the threats are nonimminent, because is based on information contained in recovery has occurred, may conduct an surveys in 2004 and 2007 did not find our files. No new information was environmental analysis to consider fish in the pools where these shrimp provided in the petition we received on resumption of grazing. occur on Maui or the island of Hawaii. May 11, 2004. Abronia alpina is a small Established hiker, packstock, and Also, there was no evidence of recent perennial herb, 2.5 to 15.2 centimeters cattle trails pass through A. alpina habitat degradation at those pools. We (1 to 6 inches) across, forming compact subpopulations. Two main hiker trails assigned this species an LPN of 5. mats with lavender-pink, trumpet- pass through Ramshaw Meadow, but in Anchialine pool shrimp (Procaris shaped, and generally fragrant flowers. 1988 and 1997, they were rerouted out hawaiana)—The following summary is Abronia alpina is known from one main of A. alpina subpopulations where based on information contained in our population center at Ramshaw Meadow feasible. Occasional incidental use by files. No new information was provided and a smaller population at the adjacent horses and hikers sometimes occurs on in the petition we received on May 11, Templeton Meadow. The meadows are the remnants of cattle trails that pass 2004. Procaris hawaiana is an located on the Kern River Plateau in the through subpopulations in several anchialine pool-inhabiting species of Sierra Nevada, on lands administered by places. The Service has funded studies shrimp belonging to the family the Inyo National Forest, in Tulare to determine appropriate conservation Procarididae. This species is endemic to County, California. The total estimated measures for the species, and is working

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with the U.S. Forest Service on are approximately 22 extant regulation of water levels in the developing a conservation strategy for occurrences, 12 in Monroe County and Columbia River and placement of riprap the species. The threats are of a low 10 in Miami-Dade County; many along the river bank; human trampling magnitude and nonimminent because of occurrences are on conservation lands. of plants from recreation; competition the conservation actions already However, 4 to 5 sites are recently with nonnative, invasive species; burial implemented. The LPN for A. alpina thought to be extirpated. The estimated by wind- and water-borne sediments; remains an 11, with nonimminent population size of Blodgett’s silverbush small population sizes; susceptibility to threats of moderate to low magnitude. in the Florida Keys, excluding Big Pine genetic drift and inbreeding; and the Arabis georgiana (Georgia Key, is roughly 11,000; the estimated potential for hybridization with two rockcress)—The following summary is population in Miami-Dade County is other species of Artemisia. Ongoing based on information in our files. No 375 to 13,650 plants. conservation actions have reduced new information was provided in the Blodgett’s silverbush is threatened by trampling, but have not eliminated or petition we received on May 11, 2004. habitat loss, which is exacerbated by reduced the other threats at the Grant The Georgia rockcress grows in a variety habitat degradation due to fire County site. Active conservation of dry situations, including shallow soil suppression, the difficulty of applying measures are not currently in place at accumulations on rocky bluffs, ecotones prescribed fire to pine rocklands, and the Miller Island site. The magnitude of of gently sloping rock outcrops, and threats from exotic plants. Remaining threat is high for this subspecies sandy loam along eroding river banks. It habitats are fragmented. Threats such as because, although the two remaining is occasionally found in adjacent mesic road maintenance and enhancement, populations are widely separated and woods, but it will not persist in heavily infrastructure, and illegal dumping distributed, one or both populations shaded conditions. Currently, 16 natural threaten some occurrences. Blodgett’s could be eliminated by a single populations are known from the Gulf silverbush is vulnerable to natural disturbance. The threats are imminent Coastal Plain, Piedmont, and Ridge and disturbances, such as hurricanes, because recreational use is ongoing; Valley physiographic provinces of tropical storms, and storm surges. invasive nonnative species occur at both Alabama and Georgia. Populations of Climatic changes, including sea-level sites; windblown erosion and this species typically have a limited rise, are long-term threats that are deposition of the substrate is ongoing at number of individuals over a small area. expected to continue to affect pine the Klickitat County site; and high water Habitat degradation, more than rocklands and ultimately substantially flows may occur unpredictably in any outright habitat destruction, is the most reduce the extent of available habitat, year. Therefore, we have retained an serious threat to the continued existence especially in the Keys. Overall, the LPN of 3 for this subspecies. of this species. Disturbance, associated magnitude of threats is moderate Astragalus anserinus (Goose Creek with timber harvesting, road building, because not all of the occurrences are milkvetch)—The following summary is and grazing, has created favorable affected by the threats. In addition, land based on information in our files and in conditions for the invasion of exotic managers are aware of the threats from the petition received on February 3, weeds, especially Japanese honeysuckle exotic plants and lack of fire, and are, 2004. The majority (over 80 percent) of (Lonicera japonica), in this species’ to some extent, working to reduce these Astragalus anserinus sites in Idaho, habitat. A large number of the threats where possible. While a number Utah, and Nevada occur on Federal populations are currently or potentially of threats are occurring in some areas, lands managed by the Bureau of Land threatened by the presence of exotics. the threat from development is Management. The rest of the sites occur The heritage programs in Alabama and nonimminent as most occurrences are as small populations on private and Georgia have initiated plans for exotic on public land, and sea level rise is not State lands in Utah and on private land control at several populations. The currently affecting this species. Overall, in Idaho and Nevada. A. anserinus magnitude of threats to this species is the threats are nonimminent. Thus, we occurs in a variety of habitats, but is moderate to low due to the number of assigned an LPN of 11 to this species. typically associated with dry, tuffaceous populations (16) across multiple Artemisia borealis var. wormskioldii (made up of rock consisting of smaller counties in two States and due to the (Northern wormwood)—The following kinds of volcanic detritus) soils from the fact that several sites are protected. summary is based on information Salt Lake Formation. The species grows However, as a number of the contained in our files. No new on steep or flat sites, with soil textures populations are currently being affected information was provided in the ranging from silty to sandy to somewhat by nonnative plants, the threat is petition we received on May 11, 2004. gravelly. The species tolerates some imminent. Thus, we assigned an LPN of Historically known from eight sites, level of disturbance, based on its 8 to this species. northern wormwood is currently known occurrence on steep slopes where Argythamnia blodgettii (Blodgett’s from two populations in Klickitat and downhill movement of soil is common. silverbush)—The following summary is Grant Counties, Washington. This plant The primary threats to remaining A. based on information in our files. No is restricted to exposed basalt, cobbly- anserinus individuals consist of habitat new information was provided in the sandy terraces, and sand habitat along degradation and modifications to the petition we received on May 11, 2004. the shore and on islands in the ecosystem in which it occurs resulting Blodgett’s silverbush occurs in Florida Columbia River. The two populations from an altered wildfire regime, and and is found in open, sunny areas in are separated by 200 miles (322 associated activities to control wildfires pine rockland, edges of rockland kilometers) of the Columbia River and and rehabilitate burned-over areas. hammock, edges of coastal berm, and three large hydroelectric dams. The Other factors that also appear to sometimes disturbed areas at the edges Klickitat County population is threaten A. anserinus include livestock of natural areas. Plants can be found declining; the status is unclear for the use, invasive nonnative species, and the growing from crevices on limestone, or Grant County population; however, both inadequacy of regulatory mechanisms. on sand. The pine-rockland habitat are vulnerable to environmental Climate change effects to Goose Creek where the species occurs in Miami-Dade variability. Numerous surveys have not drainage habitats are possible, but we County and the Florida Keys requires detected additional plants. are unable to predict the specific periodic fires to maintain habitat with a Threats to northern wormwood impacts of this change to A. anserinus minimum amount of hardwoods. There include direct loss of habitat through at this time. Threats are high in

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magnitude, as these threats have the it on a landscape scale. Other threats to of this notice. However, we are working potential to destroy whole populations. A. schmolliae include fires, fire break on a proposed listing rule that we The threats are nonimminent because clearings, drought, and inadequate expect to publish prior to making the they are not currently ongoing. Thus, we regulatory mechanisms. The threats to next annual resubmitted 12-month have assigned A. anserinus an LPN of 5. the species overall are imminent and petition finding. Astragalus microcymbus (Skiff moderate in magnitude, because the Bidens campylotheca ssp. waihoiensis milkvetch)—The following summary is species is currently facing them in many (Kookoolau)—We continue to find that based on information contained in our portions of its range, but the threats do listing this species is warranted, but files and in the petition we received on not collectively result in having a precluded as of the date of publication July 30, 2007. Astragalus microcymbus greater likelihood of bringing about of this notice. However, we are working is a perennial forb that dies back to the extinction on a short time scale. on a proposed listing rule that we ground every year. It has a very limited Therefore we have assigned A. expect to publish prior to making the range and a spotty distribution within schmolliae an LPN of 8. next annual resubmitted 12-month Gunnison and Saguache Counties in Astragalus tortipes (Sleeping Ute petition finding. Colorado, where it is found in open, milkvetch)—The following summary is Bidens conjuncta (Kookoolau)—We park-like landscapes in the sagebrush based on information contained in our continue to find that listing this species steppe ecosystem on rocky or cobbly, files. No new information was provided is warranted, but precluded as of the moderate to steep slopes of hills and in the petition we received on May 11, date of publication of this notice. draws. The most significant threats to A. 2004. Astragalus tortipes is a perennial However, we are working on a proposed microcymbus are recreation, roads, plant that grows only on the Smokey listing rule that we expect to publish trails, the overall inadequacy of existing Hills layer of the Mancos Shale prior to making the next annual regulatory mechanisms, and habitat Formation on the Ute Mountain Ute resubmitted 12-month petition finding. fragmentation and degradation. Indian Reservation in Montezuma Bidens micrantha ssp. ctenophylla Recreational impacts are likely to County, Colorado. In 2000, 3,744 plants (Kookoolau)—We continue to find that increase given the close proximity of A. were recorded at 24 locations covering listing this species is warranted, but microcymbus to the town of Gunnison 500 acres within an overall range of precluded as of the date of publication and the increasing popularity of 6,400 acres. Available information from of this notice. However, we are working mountain biking, motorcycling, and all- 2000 indicates that the species remains on a proposed listing rule that we terrain vehicles. Furthermore, the stable. expect to publish prior to making the Hartman Rocks Recreation Area draws Previous and ongoing threats from next annual resubmitted petition 12- users and contains over 40 percent of borrow pit excavation, off-highway month finding. the A. microcymbus units. Other threats vehicles, irrigation canal construction, Brickellia mosieri (Florida brickell- to the species include residential and and a prairie dog colony have had minor bush)—The following summary is based urban development; livestock, deer, and impacts that reduced the range and on information contained in our files. elk use; climate change; and increasing number of plants by small amounts. Off- No new information was provided in periodic drought, nonnative invasive highway vehicle use of the habitat has the petition we received on May 11, cheatgrass, and wildfire. We consider reportedly been controlled by fencing. 2004. This species is restricted to pine the threats to A. microcymbus to be Oil and gas development is active in the rocklands of Miami-Dade County, moderate in magnitude because while general area, but the Service has Florida. This habitat requires periodic serious and occurring rangewide, they received no information to indicate that prescribed fires to maintain the low do not collectively result in having a there is development within plant understory and prevent encroachment greater likelihood of bringing about habitat. The Tribe reported that the by native tropical hardwoods and exotic extinction on a short time scale. The status of the species remains plants, such as Brazilian pepper. Only threats are imminent because the unchanged, the population is healthy, one large occurrence is known to exist; species is currently facing them in many and a management plan for the species 15 other occurrences contain less than portions of its range. Therefore we have is currently in draft form. Despite these 100 individuals. Eleven occurrences are assigned A. microcymbus an LPN of 8. positive indications, we have no on conservation lands, while the rest of Astragalus schmolliae (Schmoll documentation concerning the current the extant populations are on private milkvetch)—The following summary is status of the plants, condition of habitat, land and are currently vulnerable to based on information contained in our and terms of the species management habitat loss and degradation. files and in the petition we received on plan being drafted by the Tribe. Thus, Climatic changes, including sea-level July 30, 2007. Astragalus schmolliae is at this time, we cannot accurately assess rise, are long-term threats that will a narrow endemic perennial plant that whether populations are being reduce the extent of habitat. This grows in the mature pinyon-juniper adequately protected from previously species is threatened by habitat loss, woodland of mesa tops in the Mesa existing threats. The threats are which is exacerbated by habitat Verde National Park area and in the Ute moderate in magnitude, because they degradation due to fire suppression, the Mountain Ute Tribal Park in Colorado. have had minor impacts. Based on difficulty of applying prescribed fire to The most significant threats to the information we have, the population pine rocklands, and threats from exotic species are degradation of habitat by appears to be stable. Until the plants. Remaining habitats are fire, followed by invasion by nonnative management plan is completed and fragmented. The species is vulnerable to cheatgrass and subsequent increase in made available, there are no regulatory natural disturbances, such as fire frequency. These threats currently mechanisms in place to protect the hurricanes, tropical storms, and storm affect about 40 percent of the species’ species. Overall, we conclude threats surges. Due to its restricted range and entire known range, and cheatgrass is are nonimminent. Therefore, we the small sizes of most isolated likely to increase given its rapid spread assigned an LPN of 11 to this species. occurrences, this species is vulnerable and persistence in habitat disturbed by Bidens campylotheca ssp. pentamera to environmental (catastrophic wildfires, fire and fuels management (Kookoolau)—We continue to find that hurricanes), demographic (potential and development of infrastructure, and listing this species is warranted, but episodes of poor reproduction), and the inability of land managers to control precluded as of the date of publication genetic (potential inbreeding

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depression) threats. Ongoing is composed of nine separate sites on Canavalia pubescens (Awikiwiki)— conservation efforts include projects approximately 10 hectares (ha) (24.7 We continue to find that listing this aimed at facilitating restoration and acres (ac)) of Klamath National Forest species is warranted, but precluded as management of public and private lands and privately owned lands that stretch of the date of publication of this notice. in Miami-Dade County and projects to for 6 kilometers (km) (3.7 miles (mi)) However, we are working on a proposed reintroduce and establish new along the Gunsight-Humbug Ridge, listing rule that we expect to publish populations at suitable sites within the Siskiyou County, California. In 2007, a prior to making the next annual species’ historical range. The Service is new occurrence was confirmed in the resubmitted 12-month petition finding. also pursuing additional habitat locality of Cottonwood Peak and Little Castilleja christii (Christ’s restoration projects, which could help Cottonwood Peak, Siskiyou County, paintbrush)—The following summary is further improve the status of the where several populations are based on information contained in our species. Because of these efforts, the distributed over 164 ha (405 ac) on three files and the petition we received on overall magnitude of threats is individual mountain peaks in the January 2, 2001. Castilleja christii is moderate. The threats are ongoing and Klamath National Forest and on private found in one population covering thus imminent. We assigned this species lands. The northernmost occurrence approximately 85 ha (220 ac) on the an LPN of 8. consists of not more than five Siskiyou summit of Mount Harrison in Cassia Calamagrostis expansa (Maui mariposa lily plants that were County, Idaho. This endemic species is reedgrass)—The following summary is discovered in 1998, on Bald Mountain, considered a hemiparasite (dependent based on information contained in our west of Ashland, Jackson County, on the health of their surrounding files. No new information was provided Oregon. native plant community), and it grows in the petition we received on May 11, Major threats include competition and in association with subalpine-meadow 2004. Calamagrostis expansa is a shading by native and nonnative species and sagebrush habitats. The population perennial grass found in wet forest and fostered by suppression of wildfire; may be large (greater than 10,000 bogs, and in bog margins, on the islands increased fuel loading and subsequent individual plants); however, the species of Maui and Hawaii, Hawaii. This risk of wildfire; fragmentation by roads, is considered to be subject to large species is known from 13 populations fire breaks, tree plantations, and radio- variations in annual abundance and an totaling fewer than 750 individuals. tower facilities; maintenance and accurate current population estimate is Calamagrostis expansa is threatened construction around radio towers and not available. Monitoring indicates that by habitat degradation and loss by feral telephone relay stations located on reproductive stems per plant and plant pigs, and by competition with nonnative Gunsight Peak and Mahogany Point; and density declined between 1995 and plants. Predation by feral pigs is a soil disturbance, direct damage, and 2007. Fluctuations have occurred since potential threat to this species. All of exotic weed and grass species 2007, with slight increases in the known populations of C. expansa on introduction as a result of heavy reproductive output and density in 2008 Maui occur in managed areas. Pig recreational use and construction of fire and decreases in 2009. Population exclusion fences have been constructed breaks. Dyer’s woad (Isatis tinctoria), an monitoring did not occur in 2010. and control of nonnative plants is invasive, nonnative plant that may The primary threat to the species is ongoing within the exclosures. On the prevent germination of Siskiyou the nonnative, invasive plant smooth island of Hawaii, fencing is planned for mariposa lily seedlings, is now found brome (Bromus inermis). Despite the population in the Upper Waiakea throughout the southernmost California cooperative Forest Service and Service Forest Reserve. This species is occurrence, affecting 75 percent of the efforts to control smooth brome in 2007, represented in an ex situ collection. known lily habitat on Gunsight-Humbug 2008, 2009, and 2010, it still persists in Predation is a nonimminent threat. Ridge. Forest Service staff and the C. christii habitats. Other threats to C. However, threats to this species from Klamath-Siskiyou Wildlands Center cite christii from recreational use and feral pigs and nonnative plants are competition with dyer’s woad as a livestock trespass appear to be mostly ongoing, or imminent, and of high significant and chronic threat to the seasonal and affect only a small portion magnitude because they significantly survival of Siskiyou mariposa lily. of the population, and may not occur affect the species throughout its range, The combination of restricted range, every year. The magnitude of the threats leading to a relatively high likelihood of extremely low numbers (five plants) in to this species is moderate at this time extinction. Therefore, we retained an one of three disjunct populations, poor because, although the smooth brome LPN of 2 for this species. competitive ability, short seed dispersal control efforts have not eliminated the Calamagrostis hillebrandii distance, slow growth rates, low seed invasive plant, the Service and Forest (Hillebrand’s reedgrass)—We continue production, apparently poor survival Service are continuing their efforts in to find that listing this species is rates in some years, herbivory, habitat order to conserve this species. The warranted, but precluded as of the date disturbance, and competition from threat from smooth brome is imminent of publication of this notice. However, exotic plants threaten the continued because the threat still persists at a level we are working on a proposed listing existence of this species. These threats that affects the native plant rule that we expect to publish prior to are of high magnitude because of their communities that provide habitat for C. making the next annual resubmitted 12- potential to affect the overall survival of christii. Thus, we assign an LPN of 8 to month petition finding. the species negatively. Because the this species. Calochortus persistens (Siskiyou threats of competition from exotic Chamaecrista lineata var. keyensis mariposa lily)—The following summary plants are being addressed, they are not (Big Pine partridge pea)—The following is based on information contained in anticipated to overwhelm a large summary is based on information our files and the petition we received on portion of the species’ range in the contained in our files. No new September 10, 2001. The Siskiyou immediate future; in additions the information was provided in the mariposa lily is a narrow endemic that threats from low seed production and petition we received on May 11, 2004. is restricted to three disjunct ridge tops survival are longer-term threats. Thus, This pea is endemic to the lower Florida in the Klamath-Siskiyou Range on the overall the threats are nonimminent. As Keys, and restricted to pine rocklands, California-Oregon border. The such, we assigned an LPN of 5 to this hardwood hammock edges, and southernmost occurrence of this species species. roadsides and firebreaks within these

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ecosystems. Historically, it was known uncontrolled but, overall, is and hurricanes are more long-term from Big Pine, Cudjoe, No Name, nonimminent. Overall, the threats from threats. Therefore, we assigned an LPN Ramrod, and Little Pine Keys (Monroe limited distribution and inadequate fire of 12 to this subspecies. We will County, Florida). In 2005, a small management are imminent because they continue to monitor any changes in population was detected on lower are ongoing. In addition, the most hydrological management that may Sugarloaf Key, but this population was consequential threats (hurricanes, storm affect the magnitude of threats to the not located after Hurricane Wilma; surges) are frequent, recurrent, and species. plants were likely killed by the tidal imminent. Therefore, we retained an Chamaesyce deltoidea ssp. serpyllum surge from this storm. It presently LPN of 9 for Big Pine partridge pea. (Wedge spurge)—The following occurs on Big Pine Key, with a very Chamaesyce deltoidea ssp. pinetorum summary is based on information small population on Cudjoe Key. It is (Pineland sandmat)—The following contained in our files. No new fairly well distributed in Big Pine Key summary is based on information information was provided in the pine rocklands, which encompass contained in our files. No new petition we received on May 11, 2004. approximately 580 hectares (1,433 information was provided in the Systematic surveys of publicly owned acres), approximately 360 hectares (890 petition we received on May 11, 2004. pine rockland throughout this plant’s acres) of which are within the Service’s The pineland sandmat is only known range were conducted during 2005– National Key Deer Refuge (NKDR). Over from Miami-Dade County, Florida. The 2006 and 2007–2008 to determine 80 percent of the population probably largest occurrence, estimated at more population size and distribution. Wedge exists on NKDR, with the remainder than 10,000 plants, is located on Long spurge is a small prostrate herb. It was distributed among State, County, and Pine Key within Everglades National historically, and remains, restricted to private properties. Hurricane Wilma Park. All other occurrences are smaller pine rocklands on Big Pine Key in (October 2005) resulted in a storm surge and are in isolated pine rockland Monroe County, Florida. Pine rocklands that covered most of Big Pine Key with fragments in heavily urbanized Miami- encompass approximately 580 hectares sea water. The surge reduced the Dade County. (1,433 acres) on Big Pine Key, Occurrences on private (non- population by as much as 95 percent in approximately 360 hectares (890 acres) conservation) lands and on one County- some areas. of which are within the Service’s owned parcel are at risk from Pine rockland communities are National Key Deer Refuge (NKDR). Most development and habitat degradation maintained by relatively frequent fires. of the species’ range falls within the and fragmentation. Conditions related to In the absence of fire, shrubs and trees NKDR, with the remainder on State, encroach on pine rockland, and this climate change, particularly sea-level County, and private properties. It is not subspecies is eventually shaded out. rise, will be a factor over the long term. widely dispersed within the limited NKDR has a prescribed fire program, All occurrences of the species are range. Occurrences are sparser in the although with many constraints on threatened by habitat loss and southern portion of Big Pine Key, which implementation. Habitat loss due to degradation due to fire suppression, the contains smaller areas of NKDR lands development was historically the difficulty of applying prescribed fire, than does the northern portion. Wedge greatest threat to the pea. Much of the and exotic plants. These threats are spurge inhabits sites with low woody remaining habitat is now protected on severe within small and unmanaged cover (e.g., low palm and hardwood public lands. Absence of fire now fragments in urban areas. However, the densities) and usually with exposed appears to be the greatest of the threats of fire suppression and exotics deterministic threats. Given the recent are reduced on lands managed by the rock or gravel. increase in hurricane activity, storm National Park Service. Hydrologic Pine rockland communities are surges are the greatest of the stochastic changes are considered to be another maintained by relatively frequent fires. threats. The small range and patchy threat. Hydrology has been altered In the absence of fire, shrubs and trees distribution of the subspecies increase within Long Pine Key due to artificial encroach on pine rockland, and the risk from stochastic events. Climatic drainage, which lowered ground water, subspecies is eventually shaded out. changes, including sea-level rise, are and by the construction of roads, which NKDR has a prescribed fire program, serious long-term threats. Models either impounded or diverted water. although with many constraints on indicate that even under the best of Regional water management intended to implementation. Habitat loss due to circumstances, a significant proportion restore the Everglades could negatively development was historically the of upland habitat will be lost on Big affect the pinelands of Long Pine Key in greatest threat to the wedge spurge. Pine Key by 2100. Additional threats the future. At this time, we do not know Much of the remaining habitat is now include restricted range, invasive exotic whether the proposed restoration and protected on public lands. Absence of plants, roadside dumping, loss of associated hydrological modifications fire now appears to be the greatest of the pollinators, seed predators, and will have a positive or negative effect on deterministic threats. Given the recent development. pineland sandmat. This narrow endemic increase in hurricane activity, storm We maintain the previous assessment may be vulnerable to catastrophic surges are the greatest of the stochastic that hurricanes, storm surges, lack of events and natural disturbances, such as threats. The small range and patchy fire, and limited distribution result in a hurricanes. Overall, the magnitude of distribution of the subspecies increases moderate magnitude of threat because a threats to this species is moderate; by risk from stochastic events. Climatic large part of the range is on conservation applying regular prescribed fire, the changes, including sea-level rise, are lands where threats are being addressed, National Park Service has kept Long serious long-term threats. Models although fire management is at much Pine Key’s pineland vegetation intact indicate that even under the best of slower rate than is required. The and relatively free of exotic plants, and circumstances, a significant proportion immediacy of hurricane threats is partnerships are in place to help address of upland habitat will be lost on Big difficult to characterize, but imminence the continuing threat of exotics on other Pine Key by 2100. Additional threats is considered high given that hurricanes pine rockland fragments. Overall, the include restricted range, invasive exotic (and storm surges) of various threats are nonimminent because fire plants, roadside dumping, loss of magnitudes are frequent and recurrent management at the largest occurrence is pollinators, seed predators, and events in the area. Sea-level rise remains regularly conducted and sea-level rise development.

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We maintain the previous assessment was brought to our attention 2 years ago, the islands where it occurred. Prior to that low fire-return intervals plus and the potential impacts to Hurricane Wilma in 2005, the hurricane-related storm surges, in Chorizanthe parryi var. fernandina have population was estimated at roughly combination with a limited, fragmented not yet been evaluated. We will be 5,000 individuals, with all but 500 distribution and threats from sea-level working with the landowners to manage occurring on one privately owned rise, result in a moderate magnitude of the site for the benefit of Chorizanthe island. An estimated 1,500 plants occur threat, in part, because a large part of parryi var. fernandina. The other on the mainland within ENP. the range is on conservation lands, population (Newhall Ranch) is under This species is threatened by habitat where some threats can be substantially the threat of development; however, a loss and modification, even on public controlled. The immediacy of hurricane candidate conservation agreement lands, and habitat loss and degradation threats is difficult to categorize, but in (CCA) is being developed with the due to threats from exotic plants at this case threats are imminent given that landowner, and it is possible that the almost all sites. The species is hurricanes (and storm surges) of various remaining plants can also be conserved. vulnerable to natural disturbances, such magnitudes are frequent and recurrent Until such an agreement is finalized, the as hurricanes, tropical storms, and events in the area. Sea-level rise remains threat of development and the potential storm surges. While these factors may uncontrolled, but over much of the damage to the Newhall Ranch also work to maintain coastal rock range is nonimminent compared to population still exists, as shown by the barren habitat in the long term, other prominent threats. Threats destruction of some plants during Hurricane Wilma affected occurrences resulting from limited fire occurrences installation of an agave farm. and habitat, at least in the short term. are imminent. As some of the major Furthermore, cattle grazing on Newhall Occurrences probably initially declined threats are ongoing, overall, the threats Ranch may be a threat. Cattle grazing due to inundation of its coastal barren are imminent. Therefore, we retained an may harm Chorizanthe parryi var. and rockland hammock habitats; long- LPN of 9 for this subspecies. fernandina by trampling and soil term effects on this species are Chorizanthe parryi var. fernandina compaction. Grazing activity could also unknown. Cape Sable thoroughwort (San Fernando Valley spineflower)— alter the nutrient (e.g., elevated organic appears to be vulnerable to cold The following summary is based on material levels) content of the soils for temperatures. It is not known to what information contained in our files and Chorizanthe parryi var. fernandina extent cold temperatures in January and the petition we received on December habitat through fecal inputs, which in December 2010 affected the species at 14, 1999. Chorizanthe parryi var. turn may favor the growth of other plant most locations, or what, if any, long- fernandina is a low-growing species that would otherwise not grow term effect this may have on the herbaceous, annual plant in the so readily on the mineral-based soils. population. Sea-level rise is considered buckwheat family. Germination occurs Over time, changes in species a major threat over the long term. following the onset of late-fall and composition may render the sites less Potential effects from other changes in winter rains and typically represents favorable for the persistence of freshwater deliveries and the different cohorts from the seed bank. Chorizanthe parryi var. fernandina. construction of the Buttonwood Canal Flowering occurs in the spring, Chorizanthe parryi var. fernandina may are unknown. Problems associated with generally between April and June. be threatened by invasive, nonnative small population size and isolation are Chorizanthe parryi var. fernandina plants, including grasses, which could likely major factors, as occurrences may grows up to 30 centimeters in height potentially displace it from available not be large enough to be viable; this and 5 to 40 centimeters across. The habitat; compete for light, water, and narrowly endemic plant has uncertain plant currently is known from two nutrients; and reduce survival and viability at most locations. Thus, these disjunct localities: the first is in the establishment. factors constitute a high magnitude of southeastern portion of Ventura County Chorizanthe parryi var. fernandina is threat. The threats of small population on a site within the Upper Las Virgenes particularly vulnerable to extinction due size, isolation, and uncertain viability Canyon Open Space Preserve, formerly to its concentration in two isolated are imminent because they are ongoing. known as Ahmanson Ranch, and the areas. The existence of only two areas of As a result, we assigned an LPN of 2 to second is in an area of southwestern Los occurrence, and a relatively small range, this species. Angeles County known as Newhall makes the variety highly susceptible to Consolea corallicola (Florida Ranch. Investigations of historical extinction or extirpation from a semaphore cactus)—The following locations and seemingly suitable habitat significant portion of its range due to summary is based on information in our within the range of the species have not random events such as fire, drought, files. No new information was provided revealed any other occurrences. and erosion. We retained an LPN of 6 in the petition we received on May 11, The threats currently facing for Chorizanthe parryi var. fernandina 2004. The Florida semaphore cactus is Chorizanthe parryi var. fernandina due to high-magnitude, nonimminent endemic to the Florida Keys, and was include threatened destruction, threats. discovered on Big Pine Key in 1919, but modification, or curtailment of its Chromolaena frustrata (Cape Sable that population was extirpated as a habitat or range, inadequacy of existing thoroughwort)—The following summary result of road building and poaching. regulatory mechanisms, and other is based on information contained in This cactus grows close to salt water on natural or manmade factors. The threats our files. No new information was bare rock with a minimum of humus to Chorizanthe parryi var. fernandina provided in the petition we received on soil cover in or along the edges of from habitat destruction or modification May 11, 2004. This species is found hammocks near sea level. The species is are slightly less than they were 7 years most commonly in open sun to partial known to occur naturally only in two ago. One of the two populations (Upper shade at the edges of rockland tropical areas, Swan Key within Biscayne Las Virgenes Canyon Open Space hammock and in coastal rock barrens. National Park and Little Torch Key. Preserve) is in permanent, public There are nine extant occurrences Outplantings have been attempted in ownership and is being managed by an located on five islands in the Florida several locations in the upper and lower agency that is working to conserve the Keys and one small area in Everglades Keys; however, success has been low. plant; however, the use of adjacent National Park (ENP). In the Keys, the Few plants remain in the population at habitat for Hollywood film productions plant has been extirpated from half of The Nature Conservancy’s Torchwood

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Hammock Preserve on Little Torch Key. This species is threatened by However, we are working on a proposed During monitoring work conducted in maintenance of trails and power line listing rule that we expect to publish 2005, a total of 655 plants were rights-of-way in the Gua´nica prior to making the next annual documented at the Swan Key Commonwealth Forest, and residential resubmitted 12-month petition finding. population. In 2008–2010, the and commercial development in Cyrtandra oxybapha (Haiwale)—We population was estimated by Biscayne Pen˜ uelas, Yauco, and Anegada Island. continue to find that listing this species National Park staff to consist of Cordia rupicola is also vulnerable to is warranted, but precluded as of the approximately 600 individuals. Asexual natural (e.g., hurricanes) or manmade date of publication of this notice. reproduction is the main life-history (e.g., human-induced fires) threats. However, we are working on a proposed strategy of this species. Recent genetic Furthermore, the population on listing rule that we expect to publish studies have shown no variation within Anegada Island, which is considered the prior to making the next annual populations and very limited variation healthiest population, is expected to be resubmitted 12-month petition finding. between populations. Findings support affected sea-level rise as most of the Dalea carthagenensis ssp. floridana the conclusion that the Swan Key suitable habitat for the species is below (Florida prairie-clover)—The following (upper Keys) and Little Torch Key 3 meters above sea level. For these summary is based on information (lower Keys) populations and an reasons, we believe that the magnitude contained in our files. No new individual plant from Big Pine Key of the current threats should be information was provided in the (single plant in ex situ collection; lower considered high. About 60 percent of petition we received on May 11, 2004. Keys) are clonally derived. Studies known adult plants are located in Dalea carthagenensis var. floridana examining the reproductive biology of protected lands managed for occurs in Big Cypress National Preserve the species indicate that all extant wild conservation by the Puerto Rico (BCNP) in Monroe and Collier Counties and cultivated plants are male. Department of Natural and and at six locations within Miami-Dade The causes for the population decline Environmental Resources or the Service. County, Florida, albeit mostly in limited of this species include destruction or For these reasons, threats to Cordia numbers. There are a total of nine extant modification of habitat, predation from rupicola on the whole are high occurrences, seven of which are on nonnative Cactoblastis cactorum moths magnitude and nonimminent, and conservation lands. In addition, plants and disease, poaching and vandalism, therefore we have assigned a listing were reintroduced to a park in Miami- hurricanes, and climatic changes, priority number of 5. However, the Dade County in 2006, but only four including sea-level rise. Sea-level rise is threats faced by the species are expected remained after 8 months. considered a serious threat to the to increase in the future, and therefore Existing occurrences are extremely species and its habitat; all extant may become imminent, if conservation small and may not be viable, especially populations are located in low-lying measures are not implemented and some of the occurrences in Miami-Dade areas. All remaining populations are long-term impacts are not averted. County. Remaining habitats are under threat of predation from the Cyanea asplenifolia (Haha)—We fragmented. Climatic changes, including exotic moth, and are susceptible to root- continue to find that listing this species sea-level rise, are long-term threats that rot disease. Competition from invasive is warranted, but precluded as of the are expected to reduce the extent of exotic plants is a threat at Swan Key; date of publication of this notice. habitat. This plant is threatened by however, efforts by Biscayne National However, we are working on a proposed habitat loss and degradation due to fire Park are underway to address this listing rule that we expect to publish suppression, the difficulty of applying threat. This species is inherently prior to making the next annual prescribed fire to pine rocklands, and vulnerable to stochastic losses, resubmitted 12-month petition finding. competition from exotic plants. Damage especially at its smaller populations. A Cyanea kunthiana (Haha)—We to plants by off-road vehicles is a lack of variation and limited sexual continue to find that listing this species serious threat within the BCNP; damage reproduction makes the remaining small is warranted, but precluded as of the attributed to illegal mountain biking at population even more susceptible to date of publication of this notice. the R. Hardy Matheson Preserve has natural or manmade factors. Overall, the However, we are working on a proposed been reduced. One location within magnitude of threats is high. The listing rule that we expect to publish BCNP is threatened by changes in numerous threats are ongoing and, prior to making the next annual mowing practices; this threat is low in therefore, are imminent. Thus, we resubmitted 12-month petition finding. magnitude. This species is being assigned this species an LPN of 2. Cyanea obtusa (Haha)—We continue parasitized by the introduced insect Cordia rupicola (no common name)— to find that listing this species is lobate lac scale (Paratachardina The following summary is based on warranted but precluded as of the date pseudolobata) at some localities (e.g., R. information contained in our files. No of publication of this notice. However, Hardy Matheson Preserve), but we do new information was provided in the we are working on a proposed listing not know the extent of this threat. This petition we received on May 11, 2004. rule that we expect to publish prior to plant is vulnerable to natural Cordia rupicola is a small shrub that has making the next annual resubmitted 12- disturbances, such as hurricanes, been described from southwestern month petition finding. tropical storms, and storm surges. Due Puerto Rico, Vieques Island, and Cyanea tritomantha (‘Aku)—We to its restricted range and the small sizes Anegada Island (British Virgin Islands). continue to find that listing this species of most isolated occurrences, this All these sites lay within the subtropical is warranted, but precluded as of the species is vulnerable to environmental dry forest life zone overlying a date of publication of this notice. (catastrophic hurricanes), demographic limestone substrate. Cordia rupicola has However, we are working on a proposed (potential episodes of poor a restricted distribution. Currently, listing rule that we expect to publish reproduction), and genetic (potential approximately 227 individuals are prior to making the next annual inbreeding depression) threats. The known from 4 locations: Pen˜ uelas, resubmitted 12-month petition finding. magnitude of threats is high because of Yauco, Gua´nica Commonwealth Forests, Cyrtandra filipes (Haiwale)—We the limited number of occurrences and and Vieques National Wildlife Refuge. continue to find that listing this species the small number of individual plants at Additionally, the species is reported as is warranted, but precluded as of the each occurrence. The threats are common in Anegada. date of publication of this notice. imminent; even though many sites are

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on conservation lands, these plants still of suitable habitat diminishes the on a proposed listing rule that we face significant ongoing threats. potential for reintroduction into its expect to publish prior to making the Therefore, we have assigned an LPN of historical range. Extant occurrences are next annual resubmitted petition 12- 3 to Florida prairie-clover. in low-lying areas and will be affected month finding. Dichanthelium hirstii (Hirst Brothers’ by climate change and rising sea level. Eriogonum corymbosum var. nilesii panic grass)—The following summary is Fire suppression, the difficulty of (Las Vegas buckwheat)—The following based on information contained in our applying prescribed fire to pine summary is based on information files. No new information was provided rocklands, and threats from exotic contained in our files and the petition in the petition we received on May 11, plants are ongoing threats. As the only we received on April 23, 2008. 2004. Dichanthelium hirstii is a known remaining occurrences are on Eriogonum corymbosum var. nilesii is a perennial grass that produces erect, lands managed by the National Park woody perennial shrub up to 4 feet high leafy, flowering stems from May to Service, the threats of fire suppression with a mounding shape. The flowers of October. Dichanthelium hirstii occurs in and exotics are somewhat reduced. The this plant are numerous, small, and coastal plain intermittent ponds, usually presence of the exotic Old World yellow with small, bract-like leaves at in wet savanna or pine barren habitats, climbing fern is of particular concern the base of each flower. Eriogonum and is found at only two sites in New due to its ability to spread rapidly. In corymbosum var. nilesii is very Jersey, one site in Delaware, and one Big Cypress National Preserve, plants conspicuous when flowering in late site in North Carolina. While all four are threatened by off-road vehicle use. September and early October. It is extant D. hirstii populations are located Changes to hydrology are a potential restricted to sparsely vegetated, gypsum on public land or privately owned threat. Hydrology has been altered soil outcroppings and is found conservation lands, natural threats to within Long Pine Key due to artificial historically only in Clark County, the species from encroaching vegetation drainage, which lowered ground water, Nevada. In 2004, morphometrics were and fluctuations in climatic conditions and construction of roads, which either used to classify this plant as the unique remain of concern, and may be impounded or diverted water. Regional variety nilesii, and its unique taxonomy exacerbated by anthropogenic factors water management intended to restore was verified using molecular genetic occurring adjacent to the species’ the Everglades has the potential to affect analyses in 2007. Recent surveys have wetland habitat. Given the low number the pinelands of Long Pine Key, where expanded E. corymbosum var. nilesii’s of plants found at each site, even minor a large population occurs. At this time, range to Lincoln County, Nevada, and changes in the species’ habitat could it is not known whether Everglades Washington County, Utah. result in local extirpation. Loss of any restoration will have a positive or Eriogonum corymbosum var. nilesii known sites could result in a serious negative effect. This narrow endemic was added to the candidate list in contraction of the species’ range. may be vulnerable to catastrophic December 2007 due to continued loss of However, the most immediate and events and natural disturbances, such as habitat from development of over 95 severe threats to this species (i.e., hurricanes. Overall, the magnitude of percent of its core historical range and ditching of the Labounsky Pond site and threats is high. Only two known potential habitat. In addition, off- encroachment of aggressive vegetative occurrences remain and the likelihood highway vehicle activity and other competitors) have been curtailed or are of establishing a sizable population on public land uses (casual public use, being actively managed by The Nature other lands is diminished due to mining, and illegal dumping) directly Conservancy at one New Jersey site and continuing habitat loss. Impacts from threaten over 95 percent of the by the Delaware Division of Fish and climate change and sea-level rise are remaining habitat. It was petitioned for Wildlife and Delaware Natural Heritage currently low, but expected to be severe listing in April 2008 and a warranted- Program at the Assawoman Pond, in the future. The majority of threats are but-precluded determination was made Delaware site. Based on nonimminent nonimminent, as they are long-term in in December 2008 (73 FR 75176; threats of a high magnitude, we retain nature (water management, hurricanes, December 10, 2008). To date, regulatory an LPN of 5 for this species. and sea-level rise). Therefore, we mechanisms to protect E. corymbosum Digitaria pauciflora (Florida pineland assigned an LPN of 5 for this species. var. nilesii are inadequate. Its crabgrass)—The following summary is Echinomastus erectocentrus var. designation as a Bureau of Land based on information contained in our acunensis (Acuna cactus)—We continue Management (BLM) special status files. No new information was provided to find that listing this species is species has not provided adequate in the petition we received on May 11, warranted, but precluded as of the date protection on lands managed by BLM. 2004. Pine rocklands in Miami-Dade of publication of this notice. However, Eriogonum corymbosum var. nilesii is County have largely been destroyed by we are working on a proposed listing not protected by the State of Nevada or residential, commercial, and urban rule that we expect to publish prior to Utah or by any other regulatory development and by agriculture. With making the next annual resubmitted mechanisms on other Federal lands. We most remaining habitat having been petition 12-month finding. have determined that candidate status is negatively altered, this species has been Erigeron lemmonii (Lemmon warranted for this variety as a result of extirpated from much of its historical fleabane)—We continue to find that threats to the remaining habitat and range, including extirpation from all listing this species is warranted, but inadequate regulatory mechanisms. areas outside of National Parks. Two precluded as of the date of publication Conservation measures are being large occurrences remain within of this notice. However, we are working developed that could reduce the risks to Everglades National Park and Big on a proposed listing rule that we occupied habitat, but these measures are Cypress National Preserve; plants on expect to publish prior to making the not sufficiently complete as to remove Federal lands are protected from the next annual resubmitted petition 12- these threats. The magnitude of threats threat of habitat loss due to month finding. is high because the more significant development. However, any unknown Eriogonum codium (Umtanum Desert threats (urban development and surface plants, indefinite occurrences, and buckwheat)—We continue to find that mining) would result in direct mortality suitable habitat remaining on private or listing this species is warranted, but of the plants in over half of the known non-conservation land are threatened by precluded as of the date of publication habitat. While both development and development. Continued development of this notice. However, we are working mining are very likely to occur in the

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future, they are not expected to happen Festuca hawaiiensis (no common Mexican populations, near Fraile in in the immediate future due to name)—The following summary is southern Coahuila, and the Sierra de la economic decline, and thus, the threats based on information contained in our Madera in central Coahuila, have not are nonimminent. Accordingly, we files. No new information was provided been monitored since 1941 and 1977, assigned E. corymbosum var. nilesii an in the petition we received on May 11, respectively. A great amount of LPN of 6. 2004. This species is a cespitose potentially suitable habitat in Coahuila Eriogonum kelloggii (Red Mountain (growing in dense, low tufts) annual has never been surveyed. buckwheat)—The following summary is found in dry forest on the island of The potential threats to Guadalupe based on information contained in our Hawaii, Hawaii. Festuca hawaiiensis is fescue include changes in the wildfire files and information provided by the known from 4 populations totaling cycle and vegetation structure, California Department of Fish and approximately 1,000 individuals in and trampling from humans and pack Game. No new information was around the Pohakuloa Training Area. animals, grazing, trail runoff, fungal provided in the petition we received on Historically, this species was also found infection of seeds, small sizes and May 11, 2004. Red Mountain buckwheat on Hualalai and Puu Huluhulu, but it no isolation of populations, and limited is a perennial herb endemic to longer occurs at these sites. Festuca genetic diversity. The Service and the serpentine habitat of lower montane hawaiiensis possibly occurred on Maui. National Park Service established a forests found between 1,900 and 4,100 This species is threatened by pigs, candidate conservation agreement feet. Its distribution is limited to the Red goats, mouflon, and sheep that degrade (CCA) in 2008 to provide additional Mountain and Little Red Mountain areas and destroy habitat; fire; military protection for the Chisos Mountains of Mendocino County, California, where training activities; and nonnative plants population, and to promote cooperative it occupies in excess of 81 acres, and that outcompete and displace it. Feral conservation efforts with U.S. and 900 square feet, respectively. The pigs, goats, mouflon, and sheep have Mexican partners. The threats to known species distribution by been fenced out of a portion of the Guadalupe fescue are of moderate ownership is described as follows: populations of F. hawaiiensis, and magnitude, and are nonimminent, due Federal (Bureau of Land Management), nonnative plants have been reduced in to the provisions of the CCA and other 83 percent; private, 17 percent; State of the fenced area, but the majority of the conservation efforts, as well as the California, less than 1 percent. populations are still affected by threats likelihood that other populations exist Occupied habitat at Red Mountain is from ungulates. The threats are in mountains of Coahuila that have not scattered over 4 square miles. Total imminent because they are not been surveyed. Thus, we maintained the population size has not been controlled and are ongoing in the LPN of 11 for this species. determined, but a preliminary estimate remaining, unfenced populations. Gardenia remyi (Nanu)—The suggests the population may be in Firebreaks have been established at two following summary is based on excess of 63,000 plants, occupying more populations, but fire is an imminent information contained in our files. No than 44 discrete habitat polygons. threat to the remaining populations that new information was provided in the Intensive monitoring of permanent plots have no firebreaks. The threats are of a petition we received on May 11, 2004. on three study sites in Red Mountain high magnitude because they could Gardenia remyi is a tree found in mesic suggests considerable annual variation adversely affect the majority of F. to wet forest on the islands of Kauai, in plant density and reproduction, but hawaiiensis populations resulting in Molokai, Maui, and Hawaii, Hawaii. no discernable population trend was direct mortality or reduced reproductive Gardenia remyi is known from 19 evident in two of three study sites. One capacity. Therefore, we retained an LPN populations totaling between 85 and 87 study site showed a 65 percent decline of 2 for this species. individuals. in plant density over 11 years. Festuca ligulata (Guadalupe fescue)— This species is threatened by pigs, The primary threat to this species is The following summary is based on goats, and deer that degrade and destroy the potential for surface mining for information obtained from the original habitat and possibly prey upon the chromium and nickel. Virtually the species petition, received in 1975, and species, and by nonnative plants that entire distribution of Red Mountain from our files, on-line herbarium outcompete and displace it. Gardenia buckwheat is either owned by mining databases, and scientific publications. remyi is also threatened by landslides interests, or is covered by existing Six small populations of Guadalupe and reduced reproductive vigor on the mining claims, none of which are fescue, a member of the Poaceae (grass island of Hawaii. This species is currently active. Surface mining would family), have been documented in represented in ex situ collections. On destroy habitat suitability for this mountains of the Chihuahuan desert in Kauai, G. remyi individuals have been species. The species is also believed Texas and in Coahuila, Mexico. Only outplanted within ungulate-proof threatened by tree and shrub two extant populations have been exclosures in two locations. Feral pigs encroachment into its habitat, in confirmed in the last 5 years, in the have been fenced out of the west Maui absence of fire. Some 42 percent of its Chisos Mountains, Big Bend National populations of G. remyi, and nonnative known distribution occurred within the Park, Texas, and in the privately owned plants have been reduced in those areas. boundary of the Red Mountain Fire of Area de Proteccio´n de Flora y Fauna However, these threats are not June 2008. However, the extent and (Protected Area for Flora and Fauna— controlled and are ongoing in the manner in which Eriogonum kelloggii APFF) Maderas del Carmen in northern remaining, unfenced populations, and and its habitat were affected by that fire Coahuila. Despite intensive searches, a are, therefore, imminent. In addition, is not yet known. The single population population known from Guadalupe the threat from goats and deer is located at Little Red Mountain appears Mountains National Park, Texas, has not ongoing and imminent throughout the to have been affected, and perhaps been found since 1952 and is presumed range of the species, because no goat or eliminated by fire-control efforts. Given extirpated. In 2009, Mexican botanists deer control measures have been the magnitude (high) and immediacy confirmed Guadalupe fescue at one site undertaken for any of the populations of (nonimminent) of the threat to the in APFF Maderas del Carmen, but could G. remyi. All of the threats are of a high small, scattered populations, and given not find the species at the original site, magnitude because habitat destruction, its taxonomy (species), we assigned an known as Sierra El Jardı´n, which was predation, and landslides could LPN of 5 to this species. first reported in 1973. Two additional significantly affect the entire species,

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resulting in direct mortality or reduced Environmental Resources recognizes coastal development from Tijuana to reproductive capacity, leading to a Gonocalyx concolor as a critical Ensenada. relatively high likelihood of extinction. element. In addition, the Carite The native population in the United Therefore, we retained an LPN of 2 for Commonwealth Forest is designated as States is within an area that receives this species. a Critical Wildlife Area by the public use; however, management at Geranium hanaense (Nohoanu)—We Commonwealth of Puerto Rico. Despite this site has minimized impacts continue to find that listing this species these conservation efforts, damages to associated with habitat degradation. is warranted, but precluded as of the the species still occur due to its This species has a very low date of publication of this notice. restricted distribution and location near reproductive output, although the However, we are working on a proposed telecommunication facilities, which causes are as yet unknown. Competition listing rule that we expect to publish renders the species vulnerable to both from invasive, nonnative plants may prior to making the next annual natural (e.g., hurricanes, landslides) and pose a threat to the reproductive resubmitted 12-month petition finding. manmade impacts. Thus, we consider potential of this species. In one study, Geranium hillebrandii (Nohoanu)— 95 percent of the flowers examined were that existing laws and regulations have We continue to find that listing this damaged by insects or fungal agents or not been effectively enforced to protect species is warranted, but precluded as aborted prematurely, and insects or these populations. Moreover, we believe of the date of publication of this notice. fungal agents damaged 50 percent of the However, we are working on a proposed that inadequacy of regulatory seeds produced. All of the populations listing rule that we expect to publish mechanisms is a current threat to the in the United States are small and one prior to making the next annual species. Overall, we consider current test population is declining. Small resubmitted 12-month petition finding. threats to Gonocalyx concolor to be high populations are considered subject to Gonocalyx concolor (no common in magnitude but nonimminent, as there random events and reductions in fitness name)—The following summary is are no known projects within the due to low genetic variability. Threats based on information contained in our Commonwealth protected area. Habitat associated with small population size files. No new information was provided modification of this species has been are further exacerbated by the limited in the petition we received on May 11, only observed in one site at Cerro La range and low reproductive output of 2004. Gonocalyx concolor is a small, Santa area. Therefore, we have assigned this species. However, if low seed evergreen, epiphytic or terrestrial shrub. an LPN of 5 to Gonocalyx concolor. production is because of ecosystem This species is currently known from Hazardia orcuttii (Orcutt’s disruptions, such as loss of effective two populations: one at Cerro La Santa hazardia)—The following summary is pollinators, there could be additional and the other at Charco Azul, both in based on information contained in our threats that need to be addressed. Due the Carite Commonwealth Forest. This files and the petition we received on to low abundance and a very small area forest is located in the Sierra de Cayey March 8, 2001. Hazardia orcuttii is an of occupancy, any regional fire would and extends through the municipalities evergreen shrubby species in the be a rangewide threat. Furthermore, of Guayama, Cayey, Caguas, San Asteraceae (sunflower) family. The erect because the soil seed bank is poor and Lorenzo, and Patillas in southeastern shrubs are 50 to 100 centimeters (20 to seed viability is low, recovery from a Puerto Rico. The population previously 40 inches) high. The only known extant fire may be especially challenging. The reported in the Caribbean National native occurrence of this species in the response mechanism of this species to Forest apparently no longer exists. In United States occupies 2 ha (5 ac) in the fire is unknown. Overall, the threats to 1996, approximately 172 plants were Manchester Conservation Area in H. orcuttii are of a high magnitude reported at Cerro La Santa. However, in northwestern San Diego County, because they have the potential to 2006, only 25 individuals were reported significantly reduce the reproductive at this site, and four were located in California. This site is managed by Center for Natural Lands Management potential of this species. The threats are Charco Azul. At Cerro La Santa, the nonimminent overall because the most (CNLM). Using material derived from species is found growing on trees significant threats (invasive, nonnative the native population, the CNLM located close to communication towers, plants and low reproductive output) are facilitated the establishment of test roads, plantations, and trails. long-term in nature. This species faces populations at four additional sites in The Gonocalyx concolor population high-magnitude nonimminent threats; found at Cerro La Santa is threatened by northwest San Diego County, California, therefore, we assigned this species an habitat destruction and modification including a second site in the LPN of 5. caused by vegetation clearing around Manchester Conservation Area, Kelly Hedyotis fluviatilis (Kamapuaa)—The telecommunication towers. Although Ranch Habitat Conservation Area, following summary is based on the species is located within a Rancho La Costa Habitat Conservation information contained in our files. No Commonwealth forest, which is Area, and San Elijo Lagoon. Hazardia new information was provided in the protected by Law No. 133 (‘‘Ley de orcuttii also occurs at a few coastal sites petition we received on May 11, 2004. Bosques de Puerto Rico’’ or The Puerto in Mexico, where it recently became Hedyotis fluviatilis is a scandent shrub Rico Forest Law), unauthorized listed as endangered under Mexican found in mixed shrubland to wet maintenance of existing communication environmental law. The total number of lowland forest on the islands of Oahu facilities continue to result in loss of plants at the only native site in the and Kauai, Hawaii. This species is individuals. Gonocalyx concolor is not United States is approximately 669 known from 11 populations totaling currently listed in the Commonwealth adults, and it is unknown if between 400 and 900 individuals. Regulation No. 6766 (‘‘Reglamento para reproduction is occurring. The five Hedyotis fluviatilis is threatened by pigs Regir las Especies Vulnerables y en additional test populations collectively and goats that degrade and destroy Peligro de Extincio´n en el Estado Libre support approximately 483 adults, 17 habitat, and by nonnative plants that Asociado de Puerto Rico’’), which juveniles, and 322 seedlings, and outcompete and displace it. Landslides provides protection for endangered and reproduction is occurring in three test and hurricanes are a potential threat to threatened species. However, the populations. The population in Mexico populations on Kauai. Predation by pigs Natural Heritage Program of the Puerto is estimated to be 1,100 plants. The and goats is a likely threat. This species Rico Department of Natural and occurrences in Mexico are threatened by is represented in an ex situ collection;

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however, there are no other flowers arranged in capitate cymes. montane forest on the islands of Kauai, conservation actions implemented for Ivesia webberi occurs very infrequently Oahu, Molokai, Maui, and Hawaii, this species. We retained an LPN of 2 in Lassen, Plumas, and Sierra Counties Hawaii. This subspecies is known from because the severity of the threats to the in California, and in Douglas and 44 widely scattered populations totaling species is high and the threats are Washoe Counties, Nevada. The species approximately 200 individuals. Plants ongoing and, therefore, imminent. is restricted to sites with sparse are typically found as only one or two Helianthus verticillatus (Whorled vegetation and shallow, rocky soils individuals, with miles between sunflower)—The following summary is composed of volcanic ash or derived populations. based on information contained in our from andesitic rock. Occupied sites This subspecies is threatened by files. No new information was provided generally occur on mid-elevation flats, destruction or modification of habitat by in the petition we received on May 11, benches, or terraces on mountain slopes pigs, goats, and deer, and by nonnative 2004. The whorled sunflower is found above large valleys along the transition plants that outcompete and displace in moist, prairie-like openings in zone between the eastern edge of the native plants. Predation by pigs, goats, woodlands and along adjacent creeks. northern Sierra Nevada and the deer, and rats is a likely threat to this Despite extensive surveys throughout its northwestern edge of the Great Basin. species. Landslides are a potential threat range, only five populations are known Currently, the global population is to populations on Kauai and Molokai. for this species; two populations in estimated at approximately 5 million Seedlings have rarely been observed in Cherokee County, Alabama; one individuals at 16 known sites. The the wild. Seeds germinate in cultivation, population in Floyd County, Georgia; Nevada sites support nearly 98 percent but most die soon thereafter. It is and one population each in Madison of the total number of individuals (4.9 uncertain if this rarity of reproduction is and McNairy Counties, Tennessee. This million) on about 25 acres (10 hectares) typical of this subspecies, or if it is species appears to have restricted of occupied habitat. The California sites related to habitat disturbance. Feral pigs ecological requirements and is are larger in area, totaling about 157 have been fenced out of a few of the dependent upon the maintenance of acres (63 hectares), but support fewer populations of this subspecies, and prairie-like openings for its survival. individuals (approximately 120,000). nonnative plants have been reduced in Active management of habitat is needed The primary threats to I. webberi those populations that are fenced. to keep competition and shading under include urban and commercial However, these threats are not control. Much of its habitat has been development, authorized and controlled and are ongoing in the degraded or destroyed for agricultural, unauthorized roads, off-highway vehicle remaining, unfenced populations. This silvicultural, and residential purposes. (OHV) activities, livestock grazing and species is represented in ex situ Populations near roadsides or trampling, wildfire and fire suppression collections. The threats are of high powerlines are threatened by herbicide activities, and displacement by invasive magnitude because habitat degradation, usage in association with right-of-way species. Despite the high numbers of nonnative plants, and predation result maintenance. The majority of the individuals, direct and indirect impacts in mortality or severely affect the Georgia population is protected due to to the species and its habitat, reproductive capacity of the majority of its location within a conservation specifically from urban development populations of this species, leading to a easement; however, only 15 to 20 plants and OHV activity, remain high and are relatively high probability of extinction. are estimated to occur at this site. The likely to increase. In addition, these The threats are ongoing, and thus are remaining four sites are not formally threats have a significant likelihood of imminent. Therefore, we retained an protected, but efforts have been taken to bringing about extinction on a relative LPN of 3 for this subspecies. abate threats associated with highway short time scale, and we therefore Leavenworthia crassa (Gladecress)— right-of-way maintenance at one conclude that the threats are of high The following information is based on Alabama population. In addition, magnitude. However, the U.S. Forest information contained in our files. No despite past concerns about threats from Service has developed a conservation new information was provided in the timber removal degrading H. strategy that commits to management, petition we received on May 11, 2004. verticillatus habitat, the other Alabama monitoring, and research to protect this This species of gladecress is a population has responded favorably to species on National Forest lands where component of glade flora, occurring in canopy removal that took place circa most populations are found, and the association with limestone 2001. Therefore, threats are of moderate State of Nevada has listed the species as outcroppings. Leavenworthia crassa is magnitude, although imminent because critically endangered, which provides a endemic to a 13-mile radius area in they are ongoing. Thus, we assigned this mechanism to track future impacts on north central Alabama in Lawrence and species an LPN of 8. private lands. In addition, both the U.S. Morgan Counties, where only six Hibiscus dasycalyx (Neches River Forest Service and State of Nevada have populations of this species are rose-mallow)—We continue to find that agreed to coordinate closely with the documented. Glade habitats today have listing this species is warranted but Fish and Wildlife Service on all been reduced to remnants fragmented precluded as of the date of publication activities that may affect this species. by agriculture and development. of this notice. However, we are working For these reasons, we have determined Populations of this species are now on a proposed listing rule that we that the threats to I. webberi are located in glade-like areas exhibiting expect to publish prior to making the nonimminent and we are maintaining various degrees of disturbance including next annual resubmitted petition 12- an LPN of 5. pastureland, roadside rights-of-way, and month finding. Joinvillea ascendens ssp. ascendens cultivated or plowed fields. The most Ivesia webberi (Webber ivesia)—The (Ohe)—The following summary is based vigorous populations of this species are following summary is based on on information contained in our files. located in areas which receive full, or information contained in our files. No No new information was provided in near full, sunlight with limited new information was provided in the the petition we received on May 11, herbaceous competition. The magnitude petition we received on May 11, 2004. 2004. Joinvillea ascendens ssp. of threat is high for this species, because Ivesia webberi is a low, spreading, ascendens is an erect herb found in wet with the limited number of populations, perennial herb with grayish-green to mesic Metrosideros polymorpha- the threats could result in direct foliage; dark red, wiry stems; and yellow Acacia koa (ohia-koa) lowland and mortality or reduced reproductive

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capacity of the species. This species hurricanes, tropical storms, and storm exacerbated by habitat degradation due appears to be able to adjust to periodic surges. Hurricane Wilma inundated to fire suppression, the difficulty of disturbances and the potential impacts most of its habitat on Big Pine Key in applying prescribed fire to pine to populations from competition, 2005, and plants were not found 8 to 9 rocklands, and threats from exotic exotics, and herbicide use are weeks post-storm; the density of sand plants. Remaining habitats are nonimminent. Thus, we assigned an flax declined to zero in all management fragmented. Non-compatible LPN of 5 to this species. units at The Nature Conservancy’s management practices are also a threat Leavenworthia texana (Texas golden preserve in 2006. In a 2007 post- at most protected sites; several sites are gladecress)—We continue to find that hurricane assessment, sand flax was mowed during the flowering and listing this species is warranted, but found in northern plots, but not in any fruiting season. In the absence of fire, precluded as of the date of publication of the southern plots on Big Pine Key. periodic mowing can, in some cases, of this notice. However, we are working More current data are not available. Due help maintain open, shrub-free on a proposed listing rule that we to the small and fragmented nature of understory and provide benefits to this expect to publish prior to making the the current population, stochastic plant. However, mowing can also next annual resubmitted petition 12- events, disease, or genetic bottlenecks eliminate reproduction entirely in very month finding. may strongly affect this species in the young plants, delay reproductive Linum arenicola (Sand flax)—The Florida Keys. Reduced pollinator maturation, and kill adult plants. With following summary is based on activity and suppression of pollinator flexibility in timing and proper information contained in our files. No populations from pesticides used in management, threats from mowing new information was provided in the mosquito control and decreased seed practices can be reduced or negated. petition we received on May 11, 2004. production due to increased seed Carter’s small-flowered flax is Sand flax is found in pine rockland and predation in a fragmented wildland vulnerable to natural disturbances, such marl prairie habitats which require urban interface may also affect sand as hurricanes, tropical storms, and periodic wildfires in order to maintain flax; however, not enough information storm surges. This species exists in such an open, shrub free subcanopy and is known on this species’ reproductive small numbers at so few sites, that it reduce leaf litter levels. Based upon biology or life history to assess these may be difficult to develop and available data, there are 11 extant potential threats. maintain viable occurrences on the occurrences of sand flax; 11 others have Overall, the magnitude of threats is available conservation lands. Although been extirpated or destroyed. For the high. Because development is not no population viability analysis has most part, only small and isolated immediate for the majority of the largest been conducted for this plant, occurrences remain in low-lying areas population in Miami-Dade County, the indications are that existing occurrences in a restricted range of southern Florida threat of habitat loss at this location is are at best marginal, and it is possible and the Florida Keys. nonimminent. In addition, the finding that none are truly viable. As a result, Habitat loss and degradation due to of a larger population than previously the magnitude of threats is high. The development is a major threat and most known, combined with its location on threats are ongoing, and thus are of the remaining occurrences are on the mainland, tempers the immediacy of private land or non-conservation public imminent. Therefore, we assigned an threats of hurricanes and other natural LPN of 3 to this plant variety. land. However, a survey conducted in disturbances and catastrophic events. 2009 showed approximately 74,000 The new sizable, presumably viable Myrsine fosbergii (Kolea)—The plants on a non-conservation, public population on the mainland provides following summary is based on site in Miami-Dade County; this is far some assurance that the species could information contained in our files. No more plants than was previously withstand such threats due to the new information was provided in the known. Although a portion of the plants number of individuals and presence at petition we received on May 11, 2004. will be affected by development, a different geographic location (i.e., Myrsine fosbergii is a branched shrub or approximately 60,000 are anticipated to mainland versus Keys). Therefore, based small tree found in lowland mesic and be protected and managed through a on threats that are overall nonimminent wet forest, on watercourses or stream conservation easement. Consequently, but high in magnitude, we assigned this banks, on the islands of Kauai and the majority of the largest occurrence in species an LPN of 5. Oahu, Hawaii. This species is currently Miami-Dade County is expected to be Linum carteri var. carteri (Carter’s known from 14 populations totaling a conserved and managed. In addition, small-flowered flax)—The following little more than 100 individuals. much of the pine rockland on Big Pine summary is based on information Myrsine fosbergii is threatened by feral Key, the location of the largest contained in our files. No new pigs and goats that degrade and destroy occurrence in the Keys, is protected information was provided in the habitat and may prey upon the plant, from development. Climatic changes petition we received on May 11, 2004. and by nonnative plants that compete and sea-level rise are long-term threats This plant occupies open and disturbed for light and nutrients. This species is that are expected to affect the species sites in pinelands of Miami-Dade represented in an ex situ collection. and ultimately substantially reduce the County, Florida. Currently, there are Although there are plans to fence and extent of available habitat. Nearly all nine known occurrences. Occurrences remove ungulates from the Helemano remaining populations are threatened by with fewer than 100 individuals are area of Oahu, which may benefit this fire suppression, difficulty in applying located on three county-owned species, no conservation measures have prescribed fire, road maintenance preserves. A site with more than 100 been taken to date to alleviate these activities, exotic species, or illegal plants is owned by the U.S. Department threats for this species. Feral pigs and dumping. However, some efforts are of Agriculture, but the site is not goats are found throughout the known underway to use prescribed fire to managed for conservation. range of M. fosbergii, as are nonnative control exotics on conservation lands Climatic changes, including sea-level plants. The threats from feral pigs, goats, where this species occurs. In general, rise, are long-term threats that will and nonnative plants are of a high viability is uncertain for 9 of 11 likely reduce the extent of habitat. The magnitude because they pose a severe occurrences. Sand flax is vulnerable to nine existing occurrences are small and threat throughout the limited range of natural disturbances, such as vulnerable to habitat loss, which is this species, and they are ongoing and

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therefore imminent. We retained an LPN management is taking place. Outright populations totaling between 64 and 76 of 2 for this species. habitat destruction from wetland filling, individuals. Myrsine vaccinioides (Kolea)—We draining, flooding, and conversion to Ochrosia haleakalae is threatened by continue to find that listing this species commercial cranberry bogs likely fire; by feral pigs, goats, and cattle that is warranted but precluded as of the contributed to the curtailment of this degrade and destroy habitat and may date of publication of this notice. species’ range, but these are generally directly prey upon it; and by nonnative However, we are working on a proposed historic not current threats to bog plants that compete for light and listing rule that we expect to publish asphodel. nutrients. This species is represented in prior to making the next annual Current threats to bog asphodel are ex situ collections. Feral pigs, goats, and resubmitted 12-month petition finding. low to moderate in magnitude because cattle have been fenced out of one wild Narthecium americanum (Bog regulatory protections appear to be and one outplanted population on asphodel)—The following summary is adequate so that the threats are not private lands on the island of Maui and based on information contained in our expected to bring about extinction on a out of one outplanted population in files. No new information was provided relatively short time scale. Several Hawaii Volcanoes National Park on the in the petition we received on May 11, threats are imminent because they are island of Hawaii. Nonnative plants have 2004. Bog asphodel is a perennial herb ongoing and expected to continue. been reduced in the fenced areas. The that is found in savanna areas, usually Overall, based on these imminent, threat from fire is of a high magnitude with water moving through the moderate threats, we retain an LPN of 8 and imminent because no control substrate, as well as in sandy bogs along for this species. measures have been undertaken to streams and rivers. The historical range Nothocestrum latifolium (‘Aiea)—The address this threat that could adversely of bog asphodel included New Jersey, following summary is based on affect O. haleakalae as a whole. The Delaware, North Carolina, and South information contained in our files. No threats from feral pigs, goats, and cattle Carolina, although the taxonomic new information was provided in the are ongoing to the unfenced populations identity of the historic North Carolina petition we received on May 11, 2004. of O. haleakalae. The threat from specimens is now in question. Previous Nothocestrum latifolium is a small tree nonnative plants is ongoing and reports of bog asphodel from New York found in dry to mesic forest on the imminent and of a high magnitude to are now believed erroneous. Extant islands of Kauai, Oahu, Maui, Molokai, the wild populations on both islands as populations of bog asphodel are now and Lanai, Hawaii. Nothocestrum this threat adversely affects the survival found only within the Pine Barrens latifolium is known from 17 steadily and reproductive capacity of the region of New Jersey. declining populations totaling fewer majority of the species, leading to a Bog asphodel has experienced a clear than 1,200 individuals. relatively high likelihood of extinction. and apparently ongoing curtailment of This species is threatened by feral Therefore, we retained an LPN of 2 for its geographic range, which leaves it pigs, goats, and axis deer that degrade this species. vulnerable to localized and population- and destroy habitat and may prey upon Pediocactus peeblesianus var. level threats. The Pine Barrens savannas it; by nonnative plants that compete for fickeiseniae (Fickeisen plains cactus)— that support bog asphodel provide a light and nutrients; and by the loss of We continue to find that listing this scarce, specialized habitat that has pollinators that negatively affect the species is warranted, but precluded as declined from several thousand acres reproductive viability of the species. of the date of publication of this notice. around 1900 to only a thousand acres in This species is represented in an ex situ However, we are working on a proposed recent decades. This species has been collection. Ungulates have been fenced listing rule that we expect to publish lost from at least 2 States, and now out of four areas where N. latifolium prior to making the next annual occurs on less than 80 acres of land currently occurs, hundreds of N. resubmitted petition 12-month finding. confined to an area only about 30 miles latifolium individuals have been Penstemon scariosus var. albifluvis in diameter. Eight of 26 delineated bog outplanted in fenced areas, and (White River beardtongue)—The asphodel Element Occurrences in New nonnative plants have been reduced in following summary is based on Jersey are extirpated. The extirpated some populations that are fenced. information contained in our files and occurrences are distributed around the However, these ongoing conservation the petition we received on October 27, periphery of the range, representing a efforts for this species benefit only a few 1983. This species is restricted to contraction. Many of the remaining of the known populations. The threats calcareous soils derived from oil shale occurrences around the periphery of the are not controlled and are ongoing in barrens of the Green River Formation in range are very small and subject to the remaining unfenced populations. In the Uinta Basin of northeastern Utah identified threats, making the species addition, little regeneration is observed and adjacent Colorado. There are 20 vulnerable to further range contractions. in this species. The threats are of a high occurrences known in Utah and 1 in Significant threats include magnitude, because they are severe Colorado. Most of the occupied habitat unauthorized use of off-road vehicles, enough to affect the continued existence of the White River beardtongue is deer, beaver, natural succession, and the of the species, leading to a relatively within developed and expanding oil risk of lowered water tables. Lesser high likelihood of extinction. The and gas fields. The location of the threats include localized indirect effects threats are imminent, as they are species’ habitat exposes it to destruction of upland development, impacts from ongoing. Therefore, we retained an LPN from road, pipeline, and well site non-motorized recreational activities, of 2 for this species. construction in connection with oil and collection, and herbivores other than Ochrosia haleakalae (Holei)—The gas development. Grazing by wildlife deer. Because the range of bog asphodel following summary is based on and livestock is an additional threat. A is currently limited to New Jersey’s information contained in our files. No future threat (and potentially the Pinelands Area and Coastal Zone, new information was provided in the greatest threat) to the species is oil shale regulatory protections are generally petition we received on May 11, 2004. development. Traditional oil and gas adequate. More than 95 percent of bog Ochrosia haleakalae is a tree found in energy development is currently asphodel occurs on protected lands, dry to mesic forest, often on lava, on the occurring and expected to increase although enforcement of illegal activity islands of Hawaii and Maui, Hawaii. within habitat areas for this species, and can be lacking, and little active habitat This species is currently known from 8 therefore the threat is imminent.

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However, the BLM has adopted a Road construction and road must be taken during timber Special Status Species policy and has maintenance have played a significant management to ensure the hydrology of included in its current Resource role in the decline of P. globosa. bogs supporting the species is not Management Plan commitments to Specific activities that have affected the altered. Natural succession can result in protect this species. These protections species in the past and may continue to decreased light levels. Because of the lessen the extent of traditional oil and threaten it include bank stabilization, species dependence upon moderate-to- gas development impacts to this species, herbicide use, mowing during the high light levels, some type of active so that although oil and gas growing season, grading of road management to prevent complete development will continue to increase shoulders, and road widening or canopy closure is required at most within this species’ range, the threat is repaving. Sediment deposition during locations. Collecting for commercial and of moderate magnitude. The threats are road maintenance or from other other purposes is a potential threat. ongoing and therefore imminent. Thus, activities also potentially threatens the Herbivory (primarily deer) threatens the we assigned an LPN of 9 to this plant species. Because the natural processes species at several sites. Due to the variety. that maintained habitat suitability and alteration of habitat and changes in Peperomia subpetiolata (‘Ala ‘ala wai competition from invasive, nonnative natural conditions, protection and nui)—We continue to find that listing vegetation have been interrupted at recovery of this species is dependent this species is warranted, but precluded many locations, active habitat upon active management rather than as of the date of publication of this management is necessary at those sites. just preservation of habitat. Invasive, notice. However, we are working on a While threats associated with roadside nonnative plants such as Japanese proposed listing rule that we expect to maintenance activities and habitat honeysuckle and kudzu also threaten publish prior to making the next annual alterations by invasive plant several sites. The threats are resubmitted 12-month petition finding. encroachment are imminent because widespread; however, the impact of Phyllostegia bracteata (no common they are ongoing, these threats are of those threats on the survival of the name)—We continue to find that listing moderate magnitude as they are not species is moderate in magnitude. this species is warranted, but precluded affecting all locations of this species at Several of the sites are protected to as of the date of publication of this this time. Therefore, we assigned an some degree from the threats by being notice. However, we are working on a LPN of 8 to this species. within State parks, national forests, proposed listing rule that we expect to Platanthera integrilabia (Correll) Leur wildlife management areas, or other publish prior to making the next annual (White fringeless orchid)—The protected land. The threats are, resubmitted 12-month petition finding. following summary is based on however, imminent because they are Phyllostegia floribunda (no common information contained in our files. No ongoing, and we have therefore assigned name)—We continue to find that listing new information was provided in the an LPN of 8 to this species. this species is warranted, but precluded petition we received on May 11, 2004. Platydesma remyi (no common as of the date of publication of this Platanthera integrilabia is a perennial name)—We continue to find that listing notice. However, we are working on a herb that grows in partially, but not this species is warranted, but precluded proposed listing rule that we expect to fully, shaded, wet, boggy areas at the as of the date of publication of this publish prior to making the next annual head of streams and on seepage slopes notice. However, we are working on a resubmitted 12-month petition finding. in Alabama, Georgia, Kentucky, proposed listing rule that we expect to Physaria douglasii ssp. tuplashensis Mississippi, South Carolina, and (White Bluffs bladder-pod)—We Tennessee. Historically, there were at publish prior to making the next annual continue to find that listing this species least 90 populations of P. integrilabia. It resubmitted 12-month petition finding. is warranted, but precluded as of the is presumed extirpated from North Potentilla basaltica (Soldier Meadow date of publication of this notice. Carolina and Virginia. Currently there cinquefoil or basalt cinquefoil)—The However, we are working on a proposed are about 60 extant sites supporting the following summary is based on listing rule that we expect to publish species. information contained in our files; the prior to making the next annual Several populations have been petition we received on May 11, 2004, resubmitted petition 12-month finding. destroyed due to road, residential, and provided no additional information on Physaria globosa (Desvaux) O’Kane & commercial construction, and to the species. Potentilla basaltica is a low- Al-Shehbaz (Short’s bladderpod)—The projects that altered soil and site growing, rhizomatous, herbaceous following summary is based on hydrology such that suitability for the perennial that forms a basal rosette and information contained in our files. No species was reduced. Several of the has bright yellow flowers. Potentilla new information was provided in the known populations are in or adjacent to basaltica is associated with alkali petition we received on May 11, 2004. powerline rights-of-way. Mechanical meadows, seeps, and occasionally With this publication of this document, clearing of these areas may benefit the marsh habitats bordering perennial we recognize the proposed reunion of species by maintaining adequate light thermal springs, outflows, and meadow the genus Lesquerella with Physaria levels, but can promote development of depressions. In Nevada, the species is (O’Kane and Al-Shehbaz 2002 entire) dense, shrubby vegetation due to known only from Soldier Meadow in and now refer to Short’s bladderpod by extensive suckering of woody species; Humboldt County. In northeastern the scientific name Physaria globosa. however, the indiscriminant use of California, a single population occurs in Short’s bladderpod is a perennial herbicides in these areas could pose a Lassen County. At Soldier Meadow, member of the mustard family that significant threat to the species. All- there are 11 discrete known occurrences occurs in Indiana (1 location), Kentucky terrain vehicles have damaged several (10 on public and 1 on private land) (6 locations), and Tennessee (22 sites and pose a threat at most sites. within an area of about 24 acres (9.6 locations). It grows on steep, rocky, Some of the known sites for the species hectares) that support about 130,000 wooded slopes; on talus areas; along occur in areas that are managed individuals. The California population cliff tops and bases; and on cliff ledges. specifically for timber production. occurs on private and public land and It is usually associated with south-to Timber management is not necessarily supports fewer than 1,000 plants. The west-facing calcareous outcrops incompatible with the protection and public land in both California and adjacent to rivers or streams. management of the species, but care Nevada has been designated as an Area

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of Critical Environmental Concern by efforts have been initiated to date for the along streams on the islands of Maui, the Bureau of Land Management (BLM). other populations on Molokai or for the Kauai, and Molokai, Hawaii. This The species and its habitat are individuals on Maui. This species is species is currently known from 14 threatened by recreational use in the represented in an ex situ collection. The populations totaling 198 individuals. areas where it occurs as well as the ongoing (and therefore imminent) Ranunculus mauiensis is threatened by ongoing impacts of past water threats from feral goats, axis deer, feral pigs, goats, mule deer, axis deer, diversions, livestock grazing, and off- nonnative plants, collection, and off- and slugs that consume it; by habitat road vehicle (OHV) travel. Conservation road vehicles are of a high magnitude degradation and destruction by feral measures implemented recently by the because no control measures have been pigs, goats, and deer; and by nonnative BLM in Nevada include the installation undertaken for the Maui population or plants that compete for light and of fencing to exclude livestock, wild for the Molokai populations, and the nutrients. This species is represented in horses, and other large mammals; the threats result in direct mortality or ex situ collections. Feral pigs have been closure of access roads to spring, significantly reduce reproductive fenced out of one Maui population of R. riparian, and wetland areas and the capacity for the majority of the mauiensis, and nonnative plants have restriction of vehicles to designated populations, leading to a relatively high been reduced in the fenced area. One routes; the establishment of a designated likelihood of extinction. Therefore, we individual occurs in the Kamakou campground away from the habitats of retained an LPN of 3 for this plant Preserve on Molokai, managed by The sensitive species; the installation of variety. Nature Conservancy. However, ongoing educational signage; and, an increased Ranunculus hawaiensis (Makou)— conservation efforts benefit only two staff presence, including law The following summary is based on populations. As a result, the threats enforcement, a volunteer site steward information contained in our files. No have the potential of bringing about during the 6-month period of peak new information was provided in the extinction in a relatively short time visitor use, and noxious weed control. petition we received on May 11, 2004. scale, and are therefore are of high In California, BLM management actions Ranunculus hawaiensis is an erect or magnitude. They are also imminent include a proposed long-term ascending perennial herb found in because they are ongoing in the Kauai monitoring plot, limiting OHV travel to mesic to wet forest dominated by and the majority of the Maui designated routes, and excluding Metrosideros polymorpha (ohia) and populations. Therefore, we retained an livestock grazing by fencing. These Acacia koa (koa) with scree substrate LPN of 2 for this species. conservation measures have reduced the (loose stones or rocky debris on a slope) magnitude of threat to the species to on the islands of Maui and Hawaii, Rorippa subumbellata (Tahoe yellow moderate; all remaining threats are Hawaii. This species is currently known cress)—The following summary is based nonimminent and involve long-term from 14 individuals in 6 populations on on information contained in our files changes to the habitat for the species the island of Hawaii. One population on and the petition we received on resulting from past impacts. Until we Maui (Kukui planeze) was not relocated December 27, 2000. Rorippa can put in place a monitoring program on a survey conducted in 2006. In subumbellata is a small, branching, that allows us to assess the long-term addition, one wild population at perennial herb with umbel-like trend of the species, we have assigned Waikamoi (also on Maui) has not been inflorescences and yellow flowers. an LPN of 11. observed since 1995. Ranunculus Rorippa subumbellata is known only Pseudognaphalium (Gnaphalium) hawaiensis is threatened by direct from the shores of Lake Tahoe in sandwicensium var. molokaiense predation by slugs, feral pigs, goats, California and Nevada. Data collected (Enaena)—The following summary is cattle, mouflon, and sheep; by pigs, over the last 25 years generally indicate based on information contained in our goats, cattle, mouflon, and sheep that that occurrence of the species fluctuates files. No new information was provided degrade and destroy habitat; and by yearly as a function of both lake level in the petition we received on May 11, nonnative plants that compete for light and the amount of exposed habitat. 2004. Pseudognaphalium and nutrients. Three populations have Records kept since 1900 show a sandwicensium var. molokaiense is a been outplanted into protected preponderance of years with high lake perennial herb found in strand exclosures; however, feral ungulates and levels that would isolate and reduce R. vegetation in dry consolidated dunes on nonnative plants are not controlled in subumbellata occurrences at higher the islands of Molokai and Maui, the remaining, unfenced populations. In beach elevations. From the standpoint Hawaii. Historically, this variety was addition, the threat from introduced of the species, less favorable peak years also found on Oahu and Lanai. This slugs is of a high magnitude because have occurred almost twice as often as variety is known from 5 populations slugs occur throughout the limited range more favorable low-level years. Annual totaling approximately 200 to 20,000 of this species and no effective measures surveys are conducted to determine individuals (depending upon rainfall) in have been undertaken to control them or population numbers, site occupancy, the Moomomi area on the island of prevent them from causing significant and general disturbance regime. During Molokai, and from 2 populations of a adverse impacts to this species. Overall, the 2003 and 2004 annual survey few individuals at Waiehu dunes and at the threats from pigs, goats, cattle, periods, the lake level was Puu Kahulianapa on west Maui. mouflon, sheep, slugs, and nonnative approximately 6,224 feet (ft) (1,897.08 Pseudognaphalium sandwicensium plants are of a high magnitude, and meters (m)); 2004 was the fourth var. molokaiense is threatened by feral ongoing (imminent) for R. hawaiensis. consecutive year of low water. Rorippa goats and axis deer that degrade and We retained an LPN of 2 for this species. subumbellata was present at 46 of the destroy habitat and possibly prey upon Ranunculus mauiensis (Makou)—The 60 sites surveyed, up from 31 occupied it, and by nonnative plants that compete following summary is based on sites in 2001 when the lake level was for light and nutrients. Potential threats information contained in our files. No higher at 6,225 ft (1,897.38 m). also include collection for lei-making, new information was provided in the Approximately 25,200 stems were and off-road vehicles that directly petition we received on May 11, 2004. present in 2003, whereas during the damage plants and degrade habitat. Ranunculus mauiensis is an erect to 2001 annual survey, the estimated Weed control protects one population weakly ascending perennial herb found number of stems was 6,136. Lake levels on Molokai; however, no conservation in open sites in mesic to wet forest and rose again in 2006, and less habitat was

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available. Lake levels dropped again in fenced out of the population of S. stonecrop is either owned by mining 2008 through 2010, leading to an pubescens on the island of Hawaii. Feral interests, or is covered by mining increase in both occupied sites and goats have been fenced out of a few of claims, none of which are currently estimated stem counts. During very low the west Maui populations of S. active. Surface mining would destroy lake levels in 2009, an estimated 27,522 pubescens. Nonnative plants have been habitat suitability for this species. The stems were observed at 46 sites, equal reduced in the populations that are species is also believed threatened by to the highest number of occupied sites fenced on Maui. However, the threats tree and shrub encroachment into its previously recorded. are not controlled and are ongoing in habitat, in absence of fire. Many Rorippa subumbellata sites are the remaining unfenced populations on Approximately 25 percent of its known intensively used for commercial and Maui and the four populations on distribution occurred within the public purposes and are subject to Molokai. Additional fenced areas are boundary of the Red Mountain Fire of various activities such as erosion planned at Pohakuloa Training Area on June 2008. However, the extent and control, marina developments, pier the island of Hawaii. Nonnative feral manner in which Red Mountain construction, and recreation. The U.S. ungulates and nonnative plants will be stonecrop and its habitat were affected Forest Service, California Tahoe controlled within these fenced areas. by that fire is not yet known. Given the Conservancy, and California Department Fire is a potential threat to the Hawaii magnitude (high) and immediacy of Parks and Recreation have Island population. In light of the (nonimminent) of the threat to the management programs for R. extremely low number of individuals of small, scattered populations, and its subumbellata which include this species, the threats from goats and taxonomy (species), we assigned an LPN monitoring, fenced enclosures, and nonnative plants are of a high of 5 to this species. transplanting efforts when funds and magnitude because they result in Sicyos macrophyllus (‘Anunu)—We staff are available. Public agencies mortality and reduced reproductive continue to find that listing this species (including the Service), private capacity for the majority of the is warranted, but precluded as of the landowners, and environmental groups populations, leading to a relatively high date of publication of this notice. collaborated to develop a conservation likelihood of extinction. The threats are However, we are working on a proposed strategy coupled with a memorandum of imminent because they are ongoing with listing rule that we expect to publish understanding-conservation agreement. respect to most of the populations. prior to making the next annual The conservation strategy, completed in Therefore, we retained an LPN of 2 for resubmitted 12-month petition finding. 2003, contains goals and objectives for this species. Solanum conocarpum (marron recovery and survival, a research and Schiedea salicaria (no common bacora)—The following summary is monitoring agenda, and serves as the name)—We continue to find that listing based on information in our files and in foundation for an adaptive management this species is warranted, but precluded the petition we received on November program. Because of the continued as of the date of publication of this 21, 1996. Solanum conocarpum is a dry- commitments to conservation notice. However, we are working on a forest shrub in the island of St. John, demonstrated by regulatory and land proposed listing rule that we expect to U.S. Virgin Islands. Its current management agencies participating in publish prior to making the next annual distribution includes eight localities in the conservation strategy, we have resubmitted 12-month petition finding. the island of St. John, each ranging from determined the threats to R. Sedum eastwoodiae (Red Mountain 1 to 144 individuals. The species has subumbellata from various land uses stonecrop)—The following summary is been reported to occur on dry, poor have been reduced to a moderate based on information contained in our soils. It can be locally abundant in magnitude. In high lake-level years such files and information provided by the exposed topography on sites disturbed as 2005, however, recreational use is California Department of Fish and by erosion, areas that have received concentrated within R. subumbellata Game. The petition we received on May moderate grazing, and around ridgelines habitat, and we consider this threat in 11, 2004, provided no new information as an understory component in diverse particular to be ongoing and imminent. on the species. Red Mountain stonecrop woodland communities. A habitat Therefore, we are maintaining an LPN of is a perennial succulent which occupies suitability model suggests that the vast 8 for this species. relatively barren, rocky openings and majority of Solanum conocarpum Schiedea pubescens (Maolioli)—The cliffs in lower montane coniferous habitat is found in the lower elevation following summary is based on forests, between 1,900 and 4,000 feet coastal scrub forest. Efforts have been information contained in our files. No elevation. Its distribution is limited to conducted to propagate the species to new information was provided in the Red Mountain, Mendocino County, enhance natural populations, and petition we received on May 11, 2004. California, where it occupies in excess planting of seedlings has been Schiedea pubescens is a reclining or of 54 acres scattered over 4 square conducted in the island of St. John. weakly climbing vine found in diverse miles. The species’ distribution by Solanum conocarpum is threatened mesic to wet forest on the islands of ownership is described as follows: by the lack of natural recruitment, Maui, Molokai, and Hawaii, Hawaii. It Federal (Bureau of Land Management), absence of dispersers, fragmented is presumed extirpated from Lanai. 95 percent; private, 5 percent. Total distribution, lack of genetic variation, Currently, this species is known from 8 population size has not been climate change, and habitat destruction populations totaling between 30 and 32 determined, but a preliminary estimate or modification by exotic mammal individuals on Maui, from 4 suggests the population may be in species. These threats are evidenced by populations totaling between 21 and 22 excess of 29,000 plants, occupying more the reduced number of individuals, low individuals on Molokai, and from 1 than 27 discrete habitat polygons. number of populations, and lack of population of 4 to 6 individuals on the Intensive monitoring suggests connectivity between populations. island of Hawaii. considerable annual variation in plant Overall, we determined the magnitude Schiedea pubescens is threatened by seedling success and inflorescence of the threats to be high as shown by the feral pigs and goats that consume it and production. The primary threat to the poor quality of the populations. The degrade and destroy habitat, and by species is the potential for surface majority of threats are ongoing and, nonnative plants that compete for light mining for chromium and nickel. The therefore, imminent. We assigned an and nutrients. Feral ungulates have been entire distribution of Red Mountain LPN of 2 to this species.

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Solanum nelsonii (popolo)—The additional reservoirs within the current the species’ main mode of reproduction following summary is based on range of this species. However, S. is vegetative, each isolated population information contained in our files. No plumosa continues to be subject to may represent only a few genotypes. new information was provided in the threats from the continued operation of Many populations are currently petition we received on May 11, 2004. these reservoirs (which has reduced the threatened by one or more of the Solanum nelsonii is a sprawling or frequency and severity of scouring following factors: woody succession due trailing shrub found in coral rubble or floods that help to prevent the to fire suppression, development, sand in coastal sites. This species is establishment of other species within highway expansion or improvement, known from populations on Molokai the species’ limited habitat) and the and herbicide application. However, the (approximately 300 plants), the island of encroachment of nonnative, invasive species is still relatively widely Hawaii (5 plants), and the northwestern species. Because the species’ global distributed, and recent information Hawaiian Islands (NWHI), Hawaii. The distribution consists of a single indicates the species is more abundant current populations in the NWHI are population, its entire range is affected than when we initially identified it as found on Kure (unknown number of by these threats. However, because a candidate for listing. Taking into individuals), Midway (approximately scouring floods (prior to reservoir account its distribution and abundance, 260 plants), Laysan (approximately 490 construction) likely only occurred the magnitude of threats is moderate. plants), Pearl and Hermes (unknown episodically, and in light of the The threats are currently occurring and number of individuals), and Nihoa relatively slow progression of nonnative therefore are imminent. Thus we (8,000 to 15,000 adult plants). On species into areas of occupied habitat, assigned an LPN of 8 for this species. the magnitude of these threats is Molokai, S. nelsonii is moderately Ferns and Allies threatened by ungulates that degrade moderate to low. However, because and destroy habitat, and may eat S. these threats (especially those presented Cyclosorus boydiae (no common nelsonii. On Molokai and the NWHI, by nonnative, invasive plant species) are name)—The following summary is this species is threatened by nonnative currently occurring, they are imminent. based on information contained in our plants that outcompete and displace it. Thus, we assigned this species an LPN files. No new information was provided Solanum nelsonii is threatened by of 8. in the petition we received on May 11, predation by a nonnative grasshopper in Sphaeralcea gierischii (Gierisch 2004. This species is a small- to the NWHI. On Kure, Midway, Laysan, mallow)—We continue to find that medium-sized fern found in mesic to wet forest along stream banks on the and Pearl and Hermes in the NWHI, listing this species is warranted, but islands of Oahu and Maui, Hawaii. tsunamis are also a potential threat to S. precluded as of the date of publication Historically, this species was also found nelsonii. This species is represented in of this notice. However, we are working on the island of Hawaii, but it has been ex situ collections. Ungulate exclusion on a proposed listing rule that we extirpated there. Currently, this species fences, routine fence monitoring and expect to publish prior to making the is known from 7 populations totaling maintenance, and weed control protect next annual resubmitted petition 12- approximately 400 individuals. This the population of S. nelsonii on month finding. Stenogyne cranwelliae (no common species is threatened by feral pigs that Molokai. Limited weed control is name)—We continue to find that listing degrade and destroy habitat and may eat conducted in the NWHI. These threats this species is warranted, but precluded this plant, and by nonnative plants that are of moderate magnitude because of as of the date of publication of this compete for light and nutrients. Feral the relatively large number of plants, notice. However, we are working on a pigs have been fenced out of the largest and the fact that this species is found on proposed listing rule that we expect to population on Maui, and nonnative more than one island. The threats are publish prior to making the next annual plants have been reduced in the fenced imminent for the majority of the resubmitted 12-month petition finding. area. No conservation efforts are under populations because they are ongoing Symphyotrichum georgianum way to alleviate threats to the other two and are not being controlled. We (Georgia aster)—The following summary populations on Maui, or for the two therefore retained an LPN of 8 for this is based on information contained in populations on Oahu. This species is species. our files. No new information was represented in an ex situ collection. The Solidago plumosa (Yadkin River provided in the petition we received on magnitude of the threats acting upon the goldenrod)—The following information May 11, 2004. Georgia aster is a relict currently extant populations is is based on information in our files. No species of post oak savanna/prairie moderate because the largest population new information was provided in the communities that existed in the is protected from pigs, and nonnative petition we received on April 20, 2010. Southeast prior to widespread fire plants have been reduced in this area. The global distribution of Solidago suppression and extirpation of large The threats are ongoing and therefore plumosa consists of a single population native grazing animals. Georgia aster imminent. Therefore, we retained an that occurs in two discrete locations currently occurs in the States of LPN of 8 for this species. along a 2.5-mile stretch of the Yadkin Alabama, Georgia, North Carolina, and Huperzia stemmermanniae River in North Carolina. The availability South Carolina. The species is (Waewaeiole)—The following summary of suitable habitat and the fate of the presumed extant in 8 counties in is based on information contained in single known population of this species Alabama, 22 counties in Georgia, 9 our files. No new information was are primarily determined by the manner counties in North Carolina, and 15 provided in the petition we received on in which two hydroelectric projects (the counties in South Carolina. The species May 11, 2004. This species is an Yadkin River and Yadkin-Pee Dee River appears to have been eliminated from epiphytic pendant clubmoss found in Hydroelectric Projects) are operated. Florida. mesic-to-wet Metrosideros polymorpha- Any detrimental effects to S. plumosa Most remaining populations survive Acacia koa (ohia-koa) forests on the resulting from the construction of these adjacent to roads, utility rights-of-way, islands of Maui and Hawaii, Hawaii. reservoirs occurred decades ago when and other openings where current land Only 3 populations are known, on Maui these projects were built (during the management mimics natural and Hawaii, totaling approximately 30 years of 1917 to 1928), and the Service disturbance regimes. Most populations individuals. The Maui population has is not aware of any plans to construct are small (10 to 100 stems), and because not been relocated since 1995. Huperzia

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stemmermanniae is threatened by feral populations of the grizzly bear (Ursus 1991; 57 FR 14372, April 20, 1992; 58 pigs, goats, cattle, and axis deer that arctos horribilis), delta smelt FR 8250, February 12, 1993; 58 FR degrade and destroy habitat, and by (Hypomesus transpacificus), and 38552, July 19, 1993; 58 FR 43856, nonnative plants that compete for light, Sclerocactus brevispinus (Pariette August 18, 1993; 58 FR 43857, August space, and nutrients. Huperzia cactus). Because these species are 18, 1993; 59 FR 46611, September 9, stemmermanniae is also threatened by already listed under the ESA, they are 1994; 64 FR 26725, May 17, 1999; 72 FR randomly occurring natural events due not candidates for listing and are not 14866, March 29, 2007). Through this to its small population size. One included in Table 1. However, this process, we determined the Cabinet- individual at Waikamoi Preserve may notice and associated species Yaak, Selkirk, and North Cascade benefit from fencing for axis deer and assessment forms or 5-year review ecosystems warrant endangered status. pigs. This species is represented in ex documents also constitute the On April 18, 2007, the Service initiated situ collections. The threats from pigs, resubmitted petition findings for these a 5-year review to evaluate the current goats, cattle, axis deer, and nonnative species. For delta smelt, we have not status of grizzly bears in the lower 48 plants are of a high magnitude because updated the information included in the States (72 FR 19549–19551). This status they are sufficiently severe to adversely 12-month finding (published April 7, review, completed on August 29, 2011, affect the species throughout its limited 2010, at 75 FR 17667), which serves as and available online at: http:// range, resulting in direct mortality or our assessment; we are currently ecos.fws.gov/speciesProfile/profile/ significantly reducing reproductive conducting a 5-year review, which will speciesProfile.action?spcode=A001, capacity, leading to a relatively high provide updated information when we recommended that the Cabinet-Yaak, likelihood of extinction. The threats are complete it later this year. For the three Selkirk, and North Cascades Ecosystems imminent because they are ongoing. grizzly bear populations, our recently remain warranted but precluded for Therefore, we retained an LPN of 2 for completed 5-year review serves as our endangered status. this species. assessment. For Sclerocactus Delta smelt (Hypomesus Microlepia strigosa var. mauiensis brevispinus, our updated assessment is transpacificus) (Region 8) (see 75 FR (Palapalai)—The following summary is provided below. We find that 17667; April 7, 2010, for additional based on information contained in our reclassification to endangered status for information on why reclassification to files. No new information was provided the three grizzly bear populations, delta endangered is warranted but in the petition we received on May 11, smelt, and Sclerocactus brevispinus are precluded)—In March 2004, we 2004. Microlepia strigosa var. mauiensis all currently warranted but precluded completed a 5-year review for delta is a terrestrial fern found in mesic-to- by work identified above (see ‘‘Petition smelt in which we determined a change wet forests. It is currently found in Findings for Candidate Species’’). One in status from threatened to endangered Hawaii on the islands of Maui, Oahu, of the primary reasons that the work was not recommended. While none of and Hawaii, from at least 9 populations identified above is considered higher the threats, other than apparent totaling at least 50 individuals. There is priority is that the grizzly bear abundance, show significant differences a possibility that the range of this plant populations, delta smelt, and from 2004, we now have strong variety could be larger and include the Sclerocactus brevispinus are currently evidence, not available at the time of other main Hawaiian Islands. listed as threatened, and therefore our 5-year review, that at least some of Microlepia strigosa var. mauiensis is already receive certain protections those factors are endangering the species. The primary evidence is the threatened by feral pigs that degrade under the ESA. We promulgated and destroy habitat, and by nonnative continuing downward trend in delta regulations extending take prohibitions plants that compete for light and smelt abundance indices since a for wildlife and plants under section 9 nutrients. Pigs have been fenced out of significant decline that occurred in to threatened species (50 CFR 17.31 and some areas on east and west Maui, 2002. The most recent fall midwater 50 CFR 17.71, respectively). Prohibited Oahu, and on Hawaii, where M. strigosa trawl abundance index is the lowest actions under section 9 for wildlife var. mauiensis currently occurs, and ever recorded—less than one-tenth the include, but are not limited to, take (i.e., nonnative plants have been reduced in level it was in 2003. In addition, a 2005 to harass, harm, pursue, hunt, shoot, the fenced areas. However, the threats population viability analysis calculated wound, kill, trap, capture, or collect, or are not controlled and are ongoing in a 50-percent likelihood that the species attempt to engage in such activity). For the remaining unfenced populations on could reach effective extinction (8,000 Maui, Oahu, and Hawaii. Therefore, the plants, prohibited actions under section individuals) within 20 years. threats from feral pigs and nonnative 9 include removing or reducing to There are many primary threats to the plants are imminent. The threats are of possession any listed plant from an area species including: Direct entrainments a high magnitude because they are under Federal jurisdiction (50 CFR by State and Federal water export sufficiently severe to adversely affect 17.61). Other protections include those facilities; summer and fall increases in the species throughout its range, under section 7(a)(2) of the ESA salinity and water clarity; and effects resulting in direct mortality or whereby Federal agencies must insure from introduced species. Additional significantly reducing reproductive that any action they authorize, fund, or threats are predation by striped and capacity, leading to a relatively high carry out is not likely to jeopardize the largemouth bass and inland silversides, likelihood of extinction. We therefore continued existence of any endangered entrainment into power plants, retained an LPN of 3 for M. strigosa var. or threatened species. contaminants, and small population mauiensis. Grizzly bear (Ursus arctos horribilis) size. Existing regulatory mechanisms North Cascades ecosystem, Cabinet- have not proven adequate to halt the Petitions To Reclassify Species Already Yaak, and Selkirk populations (Region decline of delta smelt since the time of Listed or To Add to the Listed Range 6)—Between 1986 and 2007, we have listing as a threatened species. We previously made warranted-but- received and reviewed 10 petitions As a result of our analysis of the best precluded findings on five petitions requesting a change in status for available scientific and commercial seeking to reclassify threatened species individual grizzly bear populations (51 information, we have assigned uplisting to endangered status. The taxa involved FR 16363, May 2, 1986; 55 FR 32103, the delta smelt an LPN of 2, based on in the reclassification petitions are three August 7, 1990; 56 FR 33892, July 24, high-magnitude, imminent threats. The

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magnitude of the threats is high, Tables 1 and 2 list animals arranged warranted-but-precluded finding on a because they occur rangewide and result alphabetically by common names under resubmitted petition by the code ‘‘C*’’ in mortality or significantly reduce the the major group headings, and list in the category column (see ‘‘Findings reproductive capacity of the species, plants alphabetically by names of for Petitioned Candidate Species’’ leading to a relatively high likelihood of genera, species, and relevant subspecies section for additional information). extinction. They are imminent because and varieties. Animals are grouped by The ‘‘Priority’’ column indicates the these threats are ongoing and, in some class or order. Plants are subdivided LPN for each candidate species, which cases (e.g., nonnative species), into two groups: (1) Flowering plants we use to determine the most considered irreversible. and (2) ferns and their allies. Useful appropriate use of our available Sclerocactus brevispinus (Pariette synonyms and subgeneric scientific resources. The lowest numbers have the cactus) (Region 6) (see 72 FR 53211, names appear in parentheses with the highest priority. We assign LPNs based September 18, 2007, and the species synonyms preceded by an ‘‘equals’’ on the immediacy and magnitude of assessment form (see ADDRESSES) for sign. Several species that have not yet threats, as well as on taxonomic status. additional information on why been formally described in the scientific We published a complete description of reclassification to endangered is literature are included; such species are our listing priority system in the warranted but precluded)—Sclerocactus identified by a generic or specific name Federal Register (48 FR 43098, brevispinus is restricted to clay (in italics), followed by ‘‘sp.’’ or ‘‘ssp.’’ September 21, 1983). badlands of the Wagon Hound member We incorporate standardized common The third column, ‘‘Lead Region,’’ of the Uinta Formation in the Uinta names in these notices as they become identifies the Regional Office to which Basin of northeastern Utah. The species available. We sort plants by scientific you should direct information, is restricted to one population with an name due to the inconsistencies in comments, or questions (see addresses overall range of approximately 10 miles common names, the inclusion of under Request for Information at the by 5 miles in extent. The species’ entire vernacular and composite subspecific end of the SUPPLEMENTARY INFORMATION population is within a developed and names, and the fact that many plants section). Following the scientific name (fourth expanding oil and gas field. The still lack a standardized common name. Table 1 lists all candidate species, column) and the family designation location of the species’ habitat exposes plus species currently proposed for (fifth column) is the common name it to destruction from road, pipeline, listing under the ESA. We emphasize (sixth column). The seventh column and well-site construction in connection that in this notice we are not proposing provides the known historical range for with oil and gas development. The to list any of the candidate species; the species or vertebrate population (for species may be collected as a specimen rather, we will develop and publish vertebrate populations, this is the plant for horticultural use. Recreational proposed listing rules for these species historical range for the entire species or off-road vehicle use and livestock in the future. We encourage State subspecies and not just the historical trampling are additional potential agencies, other Federal agencies, and range for the distinct population threats. The species is currently other parties to give consideration to segment), indicated by postal code federally listed as threatened by its these species in environmental abbreviations for States and U.S. previous inclusion within the species planning. territories. Many species no longer Sclerocactus glaucus. Based on current In Table 1, the ‘‘category’’ column on occur in all of the areas listed. information, we are recommending an the left side of the table identifies the Species in Table 2 of this notice are LPN of 2 for reclassifying this species as status of each species according to the those we included either as proposed endangered, to reflect that: (1) The following codes: species or as candidates in the previous threats are of a high magnitude because PE—Species proposed for listing as CNOR (published November 10, 2010 at any one of the threats has the potential endangered. Proposed species are those 75 FR 69222) that are no longer to severely affect this species, a narrow species for which we have published a proposed species or candidates for endemic with a highly limited range proposed rule to list as endangered or listing. Since November 10, 2010, we and distribution; and (2) threats are threatened in the Federal Register. This listed nine species, emergency listed ongoing and, therefore, are imminent. category does not include species for one species, withdrew a proposed rule Current Notice of Review which we have withdrawn or finalized for one species, and removed three the proposed rule. species from candidate status for the We gather data on plants and animals PT—Species proposed for listing as reason indicated by the code. Also native to the United States that appear threatened. included in this table are three species to merit consideration for addition to PSAT—Species proposed for listing as that were not previously candidates or the Lists of Endangered and Threatened threatened due to similarity of proposed species but we emergency Wildlife and Plants (Lists). This notice appearance. listed due to similarity in appearance. identifies those species that we C—Candidates: Species for which we The first column indicates the present currently regard as candidates for have on file sufficient information on status of each species, using the addition to the Lists. These candidates biological vulnerability and threats to following codes (not all of these codes include species and subspecies of fish, support proposals to list them as may have been used in this CNOR): wildlife, or plants and DPSes of endangered or threatened. Issuance of E—Species we listed as endangered. vertebrate animals. This compilation proposed rules for these species is T—Species we listed as threatened. relies on information from status precluded at present by other higher Rc—Species we removed from the surveys conducted for candidate priority listing actions. This category candidate list because currently assessment and on information from includes species for which we made a available information does not support State Natural Heritage Programs, other 12-month warranted-but-precluded a proposed listing. State and Federal agencies, finding on a petition to list. We made Rp—Species we removed from knowledgeable scientists, public and new findings on all petitions for which because we have withdrawn the private natural resource interests, and we previously made ‘‘warranted-but- proposed listing. comments received in response to precluded’’ findings. We identify the The second column indicates why we previous notices of review. species for which we made a continued no longer regard the species as a

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candidate or proposed species using the (5) Describing the immediacy or Utah, and Wyoming. Regional Director following codes (not all of these codes magnitude of threats facing candidate (TE), U.S. Fish and Wildlife Service, may have been used in this CNOR): species; P.O. Box 25486, Denver Federal Center, A—Species that are more abundant or (6) Pointing out taxonomic or Denver, CO 80225–0486 (303/236– widespread than previously believed nomenclature changes for any of the 7400). and species that are not subject to the species; (7) Suggesting appropriate common Region 7. Alaska. Regional Director degree of threats sufficient to warrant (TE), U.S. Fish and Wildlife Service, continuing candidate status, or issuing a names; and 1011 East Tudor Road, Anchorage, AK proposed or final listing. (8) Noting any mistakes, such as 99503–6199 (907/786–3505). F—Species whose range no longer errors in the indicated historical ranges. includes a U.S. territory. Submit information, materials, or Region 8. California and Nevada. I—Species for which we have comments regarding a particular species Regional Director (TE), U.S. Fish and insufficient information on biological to the Regional Director of the Region Wildlife Service, 2800 Cottage Way, vulnerability and threats to support identified as having the lead Suite W2606, Sacramento, CA 95825 issuance of a proposed rule to list. responsibility for that species. The (916/414–6464). regional addresses follow: L—Species we added to the Lists of We will provide information received Endangered and Threatened Wildlife Region 1. Hawaii, Idaho, Oregon, Washington, American Samoa, Guam, in response to the previous CNOR to the and Plants. Region having lead responsibility for M—Species we mistakenly included and Commonwealth of the Northern each candidate species mentioned in the as candidates or proposed species in the Mariana Islands. Regional Director (TE), submission. We will likewise consider last notice of review. U.S. Fish and Wildlife Service, Eastside N—Species that are not listable Federal Complex, 911 N.E. 11th all information provided in response to entities based on the ESA’s definition of Avenue, Portland, OR 97232–4181 (503/ this CNOR in deciding whether to ‘‘species’’ and current taxonomic 231–6158). propose species for listing and when to understanding. Region 2. Arizona, New Mexico, undertake necessary listing actions U—Species that are not subject to the Oklahoma, and Texas. Regional Director (including whether emergency listing degree of threats sufficient to warrant (TE), U.S. Fish and Wildlife Service, 500 under section 4(b)(7) of the ESA is issuance of a proposed listing or Gold Avenue SW., Room 4012, appropriate). Information and comments continuance of candidate status due, in Albuquerque, NM 87102 (505/248– we receive will become part of the part or totally, to conservation efforts 6920). administrative record for the species, that remove or reduce the threats to the Region 3. Illinois, Indiana, Iowa, which we maintain at the appropriate species. Michigan, Minnesota, Missouri, Ohio, Regional Office. X—Species we believe to be extinct. and Wisconsin. Regional Director (TE), Before including your address, phone The columns describing lead region, U.S. Fish and Wildlife Service, 5600 number, e-mail address, or other scientific name, family, common name, American Blvd. West, Suite 990, personal identifying information in your and historical range include information Bloomington, MN 55437–1458 (612/ submission, be advised that your entire as previously described for Table 1. 713–5334). submission—including your personal Region 4. Alabama, Arkansas, Florida, identifying information—may be made Request for Information Georgia, Kentucky, Louisiana, publicly available at any time. Although We request you submit any further Mississippi, North Carolina, South you can ask us in your submission to information on the species named in Carolina, Tennessee, Puerto Rico, and withhold from public review your this notice as soon as possible or the U.S. Virgin Islands. Regional personal indentifying information, we whenever it becomes available. We are Director (TE), U.S. Fish and Wildlife cannot guarantee that we will be able to particularly interested in any Service, 1875 Century Boulevard, Suite do so. information: 200, Atlanta, GA 30345 (404/679–4156). (1) Indicating that we should add a Region 5. Connecticut, Delaware, Authority species to the list of candidate species; District of Columbia, Maine, Maryland, (2) Indicating that we should remove Massachusetts, New Hampshire, New This notice is published under the a species from candidate status; Jersey, New York, Pennsylvania, Rhode authority of the Endangered Species Act (3) Recommending areas that we Island, Vermont, Virginia, and West of 1973, as amended (16 U.S.C. 1531 et should designate as critical habitat for a Virginia. Regional Director (TE), U.S. seq.). species, or indicating that designation of Fish and Wildlife Service, 300 Westgate Dated: October 7, 2011. critical habitat would not be prudent for Center Drive, Hadley, MA 01035–9589 a species; (413/253–8615). Signed: (4) Documenting threats to any of the Region 6. Colorado, Kansas, Montana, Gregory E. Siekaniec, included species; Nebraska, North Dakota, South Dakota, Deputy Director, Fish and Wildlife Service.

TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS) [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

MAMMALS

C* ...... 2 ...... R4 Eumops floridanus ...... Molossidae ...... Bat, Florida bonneted .... U.S.A. (FL). C* ...... 3 ...... R1 Emballonura Emballonuridae ...... Bat, Pacific sheath-tailed U.S.A. (GU, CNMI). semicaudata rotensis. (Mariana Islands sub- species).

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

C* ...... 3 ...... R1 Emballonura Emballonuridae ...... Bat, Pacific sheath-tailed U.S.A. (AS), Fiji, Inde- semicaudata (American Samoa pendent Samoa, semicaudata. DPS). Tonga, Vanuatu. C* ...... 2 ...... R5 Sylvilagus transitionalis .. Leporidae ...... Cottontail, New England U.S.A. (CT, MA, ME, NH, NY, RI, VT). C* ...... 6 ...... R8 Martes pennanti ...... Mustelidae ...... Fisher (west coast DPS) U.S.A. (CA, CT, IA, ID, IL, IN, KY, MA, MD, ME, MI, MN, MT, ND, NH, NJ, NY, OH, OR, PA, RI, TN, UT, VA, VT, WA, WI, WV, WY), Canada. C* ...... 3 ...... R2 Zapus hudsonius luteus Zapodidae ...... Mouse, New Mexico U.S.A. (AZ, CO, NM). meadow jumping. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Shelton U.S.A. (WA). couchi. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Brush U.S.A. (WA). douglasii. Prairie. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Roy U.S.A. (WA). glacialis. Prairie. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, U.S.A. (WA). louiei. Cathlamet. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Olympic U.S.A. (WA). melanops. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Olympia U.S.A. (WA). pugetensis. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Tacoma U.S.A. (WA). tacomensis. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Tenino .. U.S.A. (WA). tumuli. C* ...... 3 ...... R1 Thomomys mazama Geomyidae ...... Pocket gopher, Yelm ..... U.S.A. (WA). yelmensis. C* ...... 3 ...... R6 Cynomys gunnisoni ...... Sciuridae ...... Prairie dog, Gunnison’s U.S.A. (CO, NM). (populations in central and south-central Col- orado, north-central New Mexico). C* ...... 9 ...... R1 Spermophilus brunneus Sciuridae ...... Squirrel, Southern Idaho U.S.A. (ID). endemicus. ground. C* ...... 5 ...... R1 Spermophilus Sciuridae ...... Squirrel, Washington U.S.A. (WA, OR). washingtoni. ground. C* ...... 9 ...... R7 Odobenus rosmarus Odobenidae ...... Walrus, Pacific ...... U.S.A. (AK), Canada, divergens. Russia. C* ...... 6 ...... R6 Gulo gulo luscus ...... Mustelidae ...... Wolverine, North Amer- U.S.A. (CA, CO, ID, MT, ican (Contiguous U.S. OR, UT, WA, WY). DPS).

BIRDS

C* ...... 3 ...... R1 Porzana tabuensis ...... Rallidae ...... Crake, spotless (Amer- U.S.A. (AS), Australia, ican Samoa DPS). Fiji, Independent Samoa, Marquesas, Philippines, Society Is- lands, Tonga. C* ...... 3 ...... R8 Coccyzus americanus .... Cuculidae ...... Cuckoo, yellow-billed U.S.A. (Lower 48 (Western U.S. DPS). States), Canada, Mex- ico, Central and South America. C* ...... 9 ...... R1 Gallicolumba stairi ...... Columbidae ...... Ground-dove, friendly U.S.A. (AS), Inde- (American Samoa pendent Samoa. DPS). C* ...... 3 ...... R1 Eremophila alpestris Alaudidae ...... Horned lark, streaked .... U.S.A. (OR, WA), Can- strigata. ada (BC). C* ...... 3 ...... R5 Calidris canutus rufa ...... Scolopacidae ...... Knot, red ...... U.S.A. (Atlantic coast), Canada, South Amer- ica.

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

C* ...... 8 ...... R7 Gavia adamsii ...... Gaviidae ...... Loon, yellow-billed ...... U.S.A. (AK), Canada, Norway, Russia, coastal waters of southern Pacific and North Sea. C* ...... 8 ...... R7 Brachyramphus Alcidae ...... Murrelet, Kittlitz’s ...... U.S.A. (AK), Russia. brevirostris. C* ...... 5 ...... R8 Synthliboramphus Alcidae ...... Murrelet, Xantus’s ...... U.S.A. (CA), Mexico. hypoleucus. C* ...... 8 ...... R6 Anthus spragueii ...... Motacillidae ...... Pipit, Sprauge’s ...... U.S.A. (AL, AR, AZ, CA, GA, LA, MA, MI, MN, MS, MT, ND, OH, OK, SC, SD, TX), Canada, Mexico. C* ...... 2 ...... R2 Tympanuchus Phasianidae ...... Prairie-chicken, lesser ... U.S.A. (CO, KA, NM, pallidicinctus. OK, TX). C* ...... 8 ...... R6 Centrocercus Phasianidae ...... Sage-grouse, greater ..... U.S.A. (AZ, CA, CO, ID, urophasianus. MT, ND, NE, NV, OR, SD, UT, WA, WY), Canada (AB, BC, SK). C* ...... 3 ...... R8 Centrocercus Phasianidae ...... Sage-grouse, greater U.S.A. (AZ, CA, CO, ID, urophasianus. (Bi-State DPS). MT, ND, NE, NV, OR, SD, UT, WA, WY), Canada (AB, BC, SK). C* ...... 6 ...... R1 Centrocercus Phasianidae ...... Sage-grouse, greater U.S.A. (AZ, CA, CO, ID, urophasianus. (Columbia Basin DPS). MT, ND, NE, NV, OR, SD, UT, WA, WY), Canada (AB, BC, SK). C* ...... 2 ...... R6 Centrocercus minimus ... Phasianidae ...... Sage-grouse, Gunnison U.S.A. (AZ, CO, NM, UT). C* ...... 3 ...... R1 Oceanodroma castro ..... Hydrobatidae ...... Storm-petrel, band- U.S.A. (HI), Atlantic rumped (Hawaii DPS). Ocean, Ecuador (Ga- lapagos Islands), Japan. C* ...... 11 ...... R4 Dendroica angelae ...... Emberizidae ...... Warbler, elfin-woods ...... U.S.A. (PR).

REPTILES

C* ...... 3 ...... R2 Thamnophis eques Colubridae ...... Gartersnake, northern U.S.A. (AZ, NM, NV), megalops. Mexican. Mexico. PE ...... 2 ...... R2 Sceloporus arenicolus ... Iguanidae ...... Lizard, sand dune ...... U.S.A. (TX, NM). C* ...... 8 ...... R3 Sistrurus catenatus ...... Viperidae ...... Massasauga (= rattle- U.S.A. (IA, IL, IN, MI, snake), eastern. MN, MO, NY, OH, PA, WI), Canada. C* ...... 3 ...... R4 Pituophis melanoleucus Colubridae ...... Snake, black pine ...... U.S.A. (AL, LA, MS). lodingi. C* ...... 5 ...... R4 Pituophis ruthveni ...... Colubridae ...... Snake, Louisiana pine ... U.S.A. (LA, TX). C* ...... 3 ...... R2 Chionactis occipitalis Colubridae ...... Snake, Tucson shovel- U.S.A. (AZ). klauberi. nosed. C* ...... 6 ...... R2 Gopherus agassizii ...... Testudinidae ...... Tortoise, desert U.S.A. (AZ, CA, NV, (Sonoran DPS). UT). C* ...... 8 ...... R4 Gopherus polyphemus ... Testudinidae ...... Tortoise, gopher (east- U.S.A. (AL, FL, GA, LA, ern population). MS, SC). C* ...... 3 ...... R2 Kinosternon sonoriense Kinosternidae ...... Turtle, Sonoyta mud ...... U.S.A. (AZ), Mexico. longifemorale.

AMPHIBIANS

C* ...... 9 ...... R8 Rana luteiventris ...... Ranidae ...... Frog, Columbia spotted U.S.A. (AK, ID, MT, NV, (Great Basin DPS). OR, UT, WA, WY), Canada (BC). C* ...... 3 ...... R8 Rana muscosa ...... Ranidae ...... Frog, mountain yellow- U.S.A (CA, NV). legged (Sierra Nevada DPS). C* ...... 2 ...... R1 Rana pretiosa ...... Ranidae ...... Frog, Oregon spotted .... U.S.A. (CA, OR, WA), Canada (BC). C* ...... 8 ...... R8 Lithobates onca ...... Ranidae ...... Frog, relict leopard ...... U.S.A. (AZ, NV, UT). PE ...... 3 ...... R3 Cryptobranchus Crytobranchidae ...... Hellbender, Ozark ...... U.S.A. (AR, MO). alleganiensis bishopi.

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

C* ...... 8 ...... R4 Notophthalmus Salamandridae ...... Newt, striped ...... U.S.A. (FL, GA). perstriatus. C* ...... 2 ...... R2 Eurycea waterlooensis ... Plethodontidae ...... Salamander, Austin blind U.S.A. (TX). C* ...... 8 ...... R4 Gyrinophilus gulolineatus Plethodontidae ...... Salamander, Berry Cave U.S.A. (TN). C* ...... 8 ...... R2 Eurycea naufragia ...... Plethodontidae ...... Salamander, George- U.S.A. (TX). town. C* ...... 2 ...... R2 Plethodon neomexicanus Plethodontidae ...... Salamander, Jemez U.S. A. (NM). Mountains. C* ...... 8 ...... R2 Eurycea tonkawae ...... Plethodontidae ...... Salamander, Jollyville U.S.A. (TX). Plateau. C* ...... 2 ...... R2 Eurycea chisholmensis .. Plethodontidae ...... Salamander, Salado ...... U.S.A. (TX). C* ...... 11 ...... R8 Anaxyrus canorus ...... Bufonidae ...... Toad, Yosemite ...... U.S.A. (CA). C ...... 3 ...... R2 Hyla wrightorum ...... Hylidae ...... Treefrog, Arizona U.S.A. (AZ), Mexico (So- (Huachuca/Canelo nora). DPS). C* ...... 8 ...... R4 Necturus alabamensis ... Proteidae ...... Waterdog, black warrior U.S.A. (AL). (=Sipsey Fork).

FISHES

C* ...... 8 ...... R2 Gila nigra ...... Cyprinidae ...... Chub, headwater ...... U.S.A. (AZ, NM). C* ...... 7 ...... R6 Iotichthys phlegethontis Cyprinidae ...... Chub, least ...... U.S.A. (UT). C* ...... 9 ...... R2 Gila robusta ...... Cyprinidae ...... Chub, roundtail (Lower U.S.A. (AZ, CO, NM, Colorado River Basin UT, WY). DPS). C* ...... 11 ...... R6 Etheostoma cragini ...... Percidae ...... Darter, Arkansas ...... U.S.A. (AR, CO, KS, MO, OK). C ...... 2 ...... R5 Crystallaria cincotta ...... Percidae ...... Darter, diamond ...... U.S.A. (KY, OH, TN, WV). C ...... 3 ...... R4 Etheostoma sagitta Percidae ...... Darter, Kentucky arrow .. U.S.A. (KY). spilotum. C* ...... 8 ...... R4 Percina aurora ...... Percidae ...... Darter, Pearl ...... U.S.A. (LA, MS). C* ...... 3 ...... R6 Thymallus arcticus ...... Salmonidae ...... Grayling, Arctic (upper U.S.A. (AK, MI, MT, Missouri River DPS). WY), Canada, north- ern Asia, northern Eu- rope. C* ...... 5 ...... R4 Moxostoma sp...... Catostomidae ...... Redhorse, sicklefin ...... U.S.A. (GA, NC, TN). C* ...... 2 ...... R3 Cottus sp...... Cottidae ...... Sculpin, grotto ...... U.S.A. (MO). C* ...... 5 ...... R2 Notropis oxyrhynchus .... Cyprinidae ...... Shiner, sharpnose ...... U.S.A. (TX). C* ...... 5 ...... R2 Notropis buccula ...... Cyprinidae ...... Shiner, smalleye ...... U.S.A. (TX). C* ...... 3 ...... R2 Catostomus discobolus Catostomidae ...... Sucker, Zuni bluehead ... U.S.A. (AZ, NM). yarrowi. PSAT ..... N/A ...... R1 Salvelinus malma ...... Salmonidae ...... Trout, Dolly Varden ...... U.S.A. (AK, WA), Can- ada, East Asia. C* ...... 9 ...... R2 Oncorhynchus clarki Salmonidae ...... Trout, Rio Grande cut- U.S.A. (CO, NM). virginalis. throat.

CLAMS

PE ...... 5 ...... R4 Villosa choctawensis ...... Unionidae ...... Bean, Choctaw ...... U.S.A. (AL, FL). PE ...... 2 ...... R3 Villosa fabalis ...... Unionidae ...... Bean, rayed ...... U.S.A. (IL, IN, KY, MI, NY, OH, TN, PA, VA, WV), Canada (ON). PE ...... 2 ...... R4 Fusconaia rotulata ...... Unionidae ...... Ebonyshell, round ...... U.S.A. (AL, FL). C* ...... 8 ...... R2 Popenaias popei ...... Unionidae ...... Hornshell, Texas ...... U.S.A. (NM, TX), Mex- ico. C* ...... 2 ...... R4 Ptychobranchus Unionidae ...... Kidneyshell, fluted ...... U.S.A. (AL, KY, TN, VA). subtentum. PE ...... 2 ...... R4 Ptychobranchus jonesi ... Unionidae ...... Kidneyshell, southern .... U.S.A. (AL, FL). C* ...... 2 ...... R4 Lampsilis rafinesqueana Unionidae ...... Mucket, Neosho ...... U.S.A. (AR, KS, MO, OK). PE ...... 2 ...... R3 Plethobasus cyphyus ..... Unionidae ...... Mussel, sheepnose ...... U.S.A. (AL, IA, IL, IN, KY, MN, MO, MS, OH, PA, TN, VA, WI, WV). PE ...... 2 ...... R4 Margaritifera marrianae Margaritiferidae ...... Pearlshell, Alabama ...... U.S.A. (AL). C* ...... 2 ...... R4 Lexingtonia dolabelloides Unionidae ...... Pearlymussel, slabside .. U.S.A. (AL, KY, TN, VA). PT ...... 5 ...... R4 Pleurobema strodeanum Unionidae ...... Pigtoe, fuzzy ...... U.S.A. (AL, FL). PT ...... 5 ...... R4 Fusconaia escambia ...... Unionidae ...... Pigtoe, narrow ...... U.S.A. (AL, FL).

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

PT ...... 11 ...... R4 Fusconaia Unionidae ...... Pigtoe, tapered ...... U.S.A. (AL, FL). (=Quincuncina) burkei. C* ...... 9 ...... R4 Quadrula cylindrica Unionidae ...... Rabbitsfoot ...... U.S.A. (AL, AR, GA, IN, cylindrica. IL, KS, KY, LA, MS, MO, OK, OH, PA, TN, WV). PE ...... 5 ...... R4 Hamiota (=Lampsilis) Unionidae ...... Sandshell, southern ...... U.S.A. (AL, FL). australis. PE ...... R3 Epioblasma triquetra ...... Unionidae ...... Snuffbox ...... U.S.A. (IN, MI, NY, OH, PA, WV), Canada (ON). PE ...... 4 ...... R3 Cumberlandia Margaritiferidae ...... Spectaclecase ...... U.S.A. (AL, AR, IA, IN, monodonta. IL, KS, KY, MO, MN, NE, OH, TN, VA, WI, WV). PE ...... 2 ...... R4 Elliptio spinosa ...... Unionidae ...... Spinymussel, Altamaha U.S.A. (GA).

SNAILS

C* ...... 8 ...... R4 Elimia melanoides ...... Pleuroceridae ...... Mudalia, black ...... U.S.A. (AL). C* ...... 2 ...... R4 Planorbella magnifica .... Planorbidae ...... Ramshorn, magnificent .. U.S.A. (NC). C* ...... 2 ...... R1 Ostodes strigatus ...... Potaridae ...... Sisi snail ...... U.S.A. (AS). C* ...... 2 ...... R2 Pseudotryonia Hydrobiidae ...... Snail, Diamond Y Spring U.S.A. (TX). adamantina. C* ...... 2 ...... R1 Samoana fragilis ...... Partulidae ...... Snail, fragile tree ...... U.S.A. (GU, MP). C* ...... 2 ...... R1 Partula radiolata ...... Partulidae ...... Snail, Guam tree ...... U.S.A. (GU). C* ...... 2 ...... R1 Partula gibba ...... Partulidae ...... Snail, Humped tree ...... U.S.A. (GU, MP). C* ...... 2 ...... R1 Partulina semicarinata ... Achatinellidae ...... Snail, Lanai tree ...... U.S.A. (HI). C* ...... 2 ...... R1 Partulina variabilis ...... Achatinellidae ...... Snail, Lanai tree ...... U.S.A. (HI). C* ...... 2 ...... R1 Partula langfordi ...... Partulidae ...... Snail, Langford’s tree ..... U.S.A. (MP). C* ...... 2 ...... R2 Cochliopa texana ...... Hydrobiidae ...... Snail, Phantom cave ...... U.S.A. (TX). C* ...... 2 ...... R1 Newcombia cumingi ...... Achatinellidae ...... Snail, Newcomb’s tree ... U.S.A. (Hl). C* ...... 2 ...... R1 Eua zebrina ...... Partulidae ...... Snail, Tutuila tree ...... U.S.A. (AS). PE ...... 2 ...... R2 Pyrgulopsis chupaderae Hydrobiidae ...... Springsnail, Chupadera U.S.A. (NM). C* ...... 11 ...... R8 Pyrgulopsis notidicola .... Hydrobiidae ...... Springsnail, elongate U.S.A. (NV). mud meadows. C* ...... 2 ...... R2 Tryonia circumstriata Hydrobiidae ...... Springsnail, Gonzales .... U.S.A. (TX). (=stocktonensis). C* ...... 11 ...... R2 Pyrgulopsis thompsoni ... Hydrobiidae ...... Springsnail, Huachuca ... U.S.A. (AZ), Mexico. C* ...... 8 ...... R2 Pyrgulopsis morrisoni .... Hydrobiidae ...... Springsnail, Page ...... U.S.A. (AZ). C* ...... 2 ...... R2 Tryonia cheatumi ...... Hydrobiidae ...... Springsnail (=Tryonia), U.S.A. (TX). Phantom. PE ...... 2 ...... R2 Pyrgulopsis bernardina .. Hydrobiidae ...... Springsnail, San U.S.A. (AZ), Mexico (So- Bernardino. nora). PE ...... 2 ...... R2 Pyrgulopsis trivialis ...... Hydrobiidae ...... Springsnail, Three Forks U.S.A. (AZ). C* ...... 5 ...... R2 Sonorella rosemontensis Helminthoglyptidae ...... Talussnail, Rosemont .... U.S.A. (AZ).

INSECTS

C* ...... 2 ...... R1 Hylaeus anthracinus ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 2 ...... R1 Hylaeus assimulans ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 2 ...... R1 Hylaeus facilis ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 2 ...... R1 Hylaeus hilaris ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 2 ...... R1 Hylaeus kuakea ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 2 ...... R1 Hylaeus longiceps ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 2 ...... R1 Hylaeus mana ...... Colletidae ...... Bee, Hawaiian yellow- U.S.A. (HI). faced. C* ...... 3 ...... R8 Plebejus shasta Lycaenidae ...... Blue, Mt. Charleston ...... U.S.A. (NV). charlestonensis. C ...... 3 ...... R4 Strymon acis bartrami .... Lycaenidae ...... Butterfly, Bartram’s U.S.A. (FL). hairstreak.

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

PSAT ...... R4 Leptotes cassius Lycaenidae ...... Butterfly, cassius blue .... U.S.A. (FL), Bahamas, theonus. Greater Antilles, Cay- man Islands. PSAT ...... R4 Hemiargus ceraunus Lycaenidae ...... Butterfly, ceraunus blue U.S.A. (FL), Bahamas. antibubastus. C ...... 3 ...... R4 Anaea troglodyta Nymphalidae ...... Butterfly, Florida U.S.A. (FL). floridalis. leafwing. C* ...... 3 ...... R1 Hypolimnas octucula Nymphalidae ...... Butterfly, Mariana eight- U.S.A. (GU, MP). mariannensis. spot. C* ...... 2 ...... R1 Vagrans egistina ...... Nymphalidae ...... Butterfly, Mariana wan- U.S.A. (GU, MP). dering. PE ...... 3 ...... R4 Cyclargus thomasi Lycaenidae ...... Butterfly, Miami blue ...... U.S.A. (FL), Bahamas. bethunebakeri. PSAT ...... R4 Cyclargus ammon ...... Lycaenidae ...... Butterfly, Nickerbean U.S.A. (FL), Bahamas, blue. Cuba. C* ...... 2 ...... R4 Atlantea tulita ...... Nymphalidae ...... Butterfly, Puerto Rican U.S.A. (PR). harlequin. C* ...... 5 ...... R4 Glyphopsyche Limnephilidae ...... Caddisfly, Sequatchie .... U.S.A. (TN). sequatchie. C ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Baker Sta- U.S.A. (TN). insularis. tion (=insular). C* ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Clifton ...... U.S.A. (KY). caecus. C* ...... 11 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Coleman ... U.S.A. (TN). colemanensis. C ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Fowler’s .... U.S.A. (TN). fowlerae. C* ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, icebox ...... U.S.A. (KY). frigidus. C ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Indian U.S.A. (TN). tiresias. Grave Point (=Soothsayer). C* ...... 5 ...... R4 Pseudanophthalmus in- Carabidae ...... Cave beetle, inquirer ..... U.S.A. (TN). quisitor. C* ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Louisville ... U.S.A. (KY). troglodytes. C ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Noblett’s ... U.S.A. (TN). paulus. C* ...... 5 ...... R4 Pseudanophthalmus Carabidae ...... Cave beetle, Tatum ...... U.S.A. (KY). parvus. C* ...... 3 ...... R1 Euphydryas editha Nymphalidae ...... Checkerspot butterfly, U.S.A. (OR, WA), Can- taylori. Taylor’s (=Whulge). ada (BC). C* ...... 5 ...... R8 Hermelycaena [Lycaena] Lycaenidae ...... Copper, Hermes ...... U.S.A. (CA). hermes. PE ...... 9 ...... R1 Megalagrion Coenagrionidae ...... Damselfly, blackline Ha- U.S.A. (HI). nigrohamatum waiian. nigrolineatum. PE ...... 2 ...... R1 Megalagrion leptodemas Coenagrionidae ...... Damselfly, crimson Ha- U.S.A. (HI). waiian. PE ...... 2 ...... R1 Megalagrion oceanicum Coenagrionidae ...... Damselfly, oceanic Ha- U.S.A. (HI). waiian. C* ...... 8 ...... R1 Megalagrion Coenagrionidae ...... Damselfly, orangeblack U.S.A. (HI). xanthomelas. Hawaiian. C ...... 5 ...... R8 Ambrysus funebris ...... Naucoridae ...... Naucorid bug (=Furnace U.S.A. (CA). Creek), Nevares Spring. C* ...... 2 ...... R1 Drosophila digressa ...... Drosophilidae ...... fly, Hawaiian Picture- U.S.A. (HI). wing. C* ...... 8 ...... R2 Heterelmis stephani ...... Elmidae ...... Riffle beetle, Stephan’s .. U.S.A. (AZ). C* ...... 8 ...... R3 Hesperia dacotae ...... Hesperiidae ...... Skipper, Dakota ...... U.S.A. (MN, IA, SD, ND, IL), Canada. C* ...... 8 ...... R1 Polites mardon ...... Hesperiidae ...... Skipper, Mardon ...... U.S.A. (CA, OR, WA). C ...... 2 ...... R3 Oarisma poweshiek ...... Hesperiidae ...... Skipperling, Poweshiek .. U.S.A. (IA, IL, IN, MI, MN, ND, SD, WI), Canada (MB). C* ...... 5 ...... R6 Lednia tumana ...... Nemouridae ...... Stonefly, melwater U.S.A. (MT). lednian. C* ...... 2 ...... R6 Cicindela albissima ...... Cicindelidae ...... Tiger beetle, Coral Pink U.S.A. (UT). Sand Dunes.

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

C* ...... 5 ...... R4 Cicindela highlandensis Cicindelidae ...... Tiger beetle, highlands .. U.S.A. (FL).

ARACHNIDS

C* ...... 8 ...... R2 Cicurina wartoni ...... Dictynidae ...... Meshweaver, Warton’s U.S.A. (TX). cave.

CRUSTACEANS

C ...... 2 ...... R2 Gammarus hyalleloides Gammaridae ...... Amphipod, diminutive .... U.S.A. (TX). C ...... 8 ...... R5 Stygobromus kenki ...... Crangonyctidae ...... Amphipod, Kenk’s ...... U.S.A. (DC). C* ...... 5 ...... R1 Metabetaeus lohena ...... Alpheidae ...... Shrimp, anchialine pool U.S.A. (HI). C* ...... 5 ...... R1 Palaemonella burnsi ...... Palaemonidae ...... Shrimp, anchialine pool U.S.A. (HI). C* ...... 5 ...... R1 Procaris hawaiana ...... Procarididae ...... Shrimp, anchialine pool U.S.A. (HI). C* ...... 4 ...... R1 Vetericaris chaceorum ... Procaridae ...... Shrimp, anchialine pool U.S.A. (HI).

FLOWERING PLANTS

C* ...... 11 ...... R8 Abronia alpina ...... Nyctaginaceae ...... Sand-verbena, U.S.A. (CA). Ramshaw Meadows. C* ...... 8 ...... R4 Agave eggersiana ...... Agavaceae ...... No common name ...... U.S.A. (VI). C* ...... 8 ...... R4 Arabis georgiana ...... Brassicaceae ...... Rockcress, Georgia ...... U.S.A. (AL, GA). PE ...... R8 Arctostaphylos Ericaceae ...... Manzanita, Franciscan ... U.S.A. (CA). franciscana. C* ...... 11 ...... R4 Argythamnia blodgettii ... Euphorbiaceae ...... Silverbush, Blodgett’s .... U.S.A. (FL). C* ...... 3 ...... R1 Artemisia borealis var. Asteraceae ...... Wormwood, northern ..... U.S.A. (OR, WA). wormskioldii. C* ...... 5 ...... R1 Astragalus anserinus ..... Fabaceae ...... Milkvetch, Goose Creek U.S.A. (ID, NV, UT). C ...... 3 ...... R1 Astragalus cusickii var. Fabaceae ...... Milkvetch, Packard’s ...... U.S.A. (ID). packardiae. C* ...... 8 ...... R6 Astragalus microcymbus Fabaceae ...... Milkvetch, skiff ...... U.S.A. (CO). C* ...... 8 ...... R6 Astragalus schmolliae .... Fabaceae ...... Milkvetch, Schmoll ...... U.S.A. (CO). C* ...... 11 ...... R6 Astragalus tortipes ...... Fabaceae ...... Milkvetch, Sleeping Ute U.S.A. (CO). PE ...... 2 ...... R1 Bidens amplectens ...... Asteraceae ...... Ko‘oko‘olau ...... U.S.A. (HI). C* ...... 3 ...... R1 Bidens campylotheca Asteraceae ...... Ko‘oko‘olau ...... U.S.A. (HI). pentamera. C* ...... 3 ...... R1 Bidens campylotheca Asteraceae ...... Ko‘oko‘olau ...... U.S.A. (HI). waihoiensis. C* ...... 8 ...... R1 Bidens conjuncta ...... Asteraceae ...... Ko‘oko‘olau ...... U.S.A. (HI). C* ...... 3 ...... R1 Bidens micrantha Asteraceae ...... Ko‘oko‘olau ...... U.S.A. (HI). ctenophylla. C* ...... 8 ...... R6 Boechera (Arabis) pusilla Brassicaceae ...... Rockcress, Fremont U.S.A. (WY). County or small. C* ...... 8 ...... R4 Brickellia mosieri ...... Asteraceae ...... Brickell-bush, Florida ..... U.S.A. (FL). C* ...... 2 ...... R1 Calamagrostis expansa Poaceae ...... Reedgrass, Maui ...... U.S.A. (HI). C* ...... 2 ...... R1 Calamagrostis Poaceae ...... Reedgrass, Hillebrand’s U.S.A. (HI). hillebrandii. C* ...... 5 ...... R8 Calochortus persistens .. Liliaceae ...... Mariposa lily, Siskiyou ... U.S.A. (CA, OR). C* ...... 2 ...... R1 Canavalia pubescens .... Fabaceae ...... ‘Awikiwiki ...... U.S.A. (HI). C* ...... 8 ...... R1 Castilleja christii ...... Scrophulariaceae ...... Paintbrush, Christ’s ...... U.S.A. (ID). C* ...... 9 ...... R4 Chamaecrista lineata Fabaceae ...... Pea, Big Pine partridge U.S.A. (FL). var. keyensis. C* ...... 12 ...... R4 Chamaesyce deltoidea Euphorbiaceae ...... Sandmat, pineland ...... U.S.A. (FL). pinetorum. C* ...... 9 ...... R4 Chamaesyce deltoidea Euphorbiaceae ...... Spurge, wedge ...... U.S.A. (FL). serpyllum. C* ...... 6 ...... R8 Chorizanthe parryi var. Polygonaceae ...... Spineflower, San Fer- U.S.A. (CA). fernandina. nando Valley. C* ...... 2 ...... R4 Chromolaena frustrata ... Asteraceae ...... Thoroughwort, Cape U.S.A. (FL). Sable. C* ...... 8 ...... R2 Cirsium wrightii ...... Asteraceae ...... Thistle, Wright’s ...... U.S.A. (AZ, NM), Mex- ico. C* ...... 2 ...... R4 Consolea corallicola ...... Cactaceae ...... Cactus, Florida sema- U.S.A. (FL). phore. C* ...... 5 ...... R4 Cordia rupicola ...... Boraginaceae ...... No common name ...... U.S.A. (PR), Anegada. C* ...... 2 ...... R1 Cyanea asplenifolia ...... Campanulaceae ...... Haha ...... U.S.A. (HI). PE ...... 2 ...... R1 Cyanea calycina ...... Campanulaceae ...... Haha ...... U.S.A. (HI). C* ...... 2 ...... R1 Cyanea kunthiana ...... Campanulaceae ...... Haha ...... U.S.A. (HI). PE ...... 2 ...... R1 Cyanea lanceolata ...... Campanulaceae ...... Haha ...... U.S.A. (HI).

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

C* ...... 2 ...... R1 Cyanea obtusa ...... Campanulaceae ...... Haha ...... U.S.A. (HI). PE ...... R1 Cyanea purpurellifolia .... Campanulaceae ...... Haha ...... U.S.A. (HI). C* ...... 2 ...... R1 Cyanea tritomantha ...... Campanulaceae ...... ‘Aku ...... U.S.A. (HI). C* ...... 2 ...... R1 Cyrtandra filipes ...... Gesneriaceae ...... Ha‘iwale ...... U.S.A. (HI). PE ...... R1 Cyrtandra gracilis ...... Gesneriaceae ...... Ha‘iwale ...... U.S.A. (HI). PE ...... 2 ...... R1 Cyrtandra kaulantha ...... Gesneriaceae ...... Ha‘iwale ...... U.S.A. (HI). C* ...... 2 ...... R1 Cyrtandra oxybapha ...... Gesneriaceae ...... Ha‘iwale ...... U.S.A. (HI). PE ...... 2 ...... R1 Cyrtandra sessilis ...... Gesneriaceae ...... Ha‘iwale ...... U.S.A. (HI). PE ...... R1 Cyrtandra waiolani ...... Gesneriaceae ...... Ha‘iwale ...... U.S.A. (HI). C* ...... 3 ...... R4 Dalea carthagenensis Fabaceae ...... Prairie-clover, Florida ..... U.S.A. (FL). var. floridana. C* ...... 5 ...... R5 Dichanthelium hirstii ...... Poaceae ...... Panic grass, Hirst Broth- U.S.A. (DE, GA, NC, ers’. NJ). C* ...... 5 ...... R4 Digitaria pauciflora ...... Poaceae ...... Crabgrass, Florida pine- U.S.A. (FL). land. C* ...... 3 ...... R2 Echinomastus Cactaceae ...... Cactus, Acuna ...... U.S.A. (AZ), Mexico. erectocentrus var. acunensis. C* ...... 8 ...... R2 Erigeron lemmonii ...... Asteraceae ...... Fleabane, Lemmon ...... U.S.A. (AZ). C* ...... 2 ...... R1 Eriogonum codium ...... Polygonaceae ...... Buckwheat, Umtanum U.S.A. (WA). Desert. C* ...... 6 ...... R8 Eriogonum corymbosum Polygonaceae ...... Buckwheat, Las Vegas .. U.S.A. (NV). var. nilesii. C ...... 5 ...... R8 Eriogonum diatomaceum Polygonaceae ...... Buckwheat, Churchill U.S.A (NV). Narrows. C* ...... 5 ...... R8 Eriogonum kelloggii ...... Polygonaceae ...... Buckwheat, Red Moun- U.S.A. (CA). tain. C* ...... 8 ...... R6 Eriogonum soredium ...... Polygonaceae ...... Buckwheat, Frisco ...... U.S.A. (UT). C* ...... 2 ...... R1 Festuca hawaiiensis ...... Poaceae ...... No common name ...... U.S.A. (HI). C* ...... 11 ...... R2 Festuca ligulata ...... Poaceae ...... Fescue, Guadalupe ...... U.S.A. (TX), Mexico. C* ...... 2 ...... R1 Gardenia remyi ...... Rubiaceae ...... Nanu ...... U.S.A. (HI). C* ...... 8 ...... R1 Geranium hanaense ...... Geraniaceae ...... Nohoanu ...... U.S.A. (HI). C* ...... 8 ...... R1 Geranium hillebrandii ..... Geraniaceae ...... Nohoanu ...... U.S.A. (HI). C* ...... 5 ...... R4 Gonocalyx concolor ...... Ericaceae ...... No common name ...... U.S.A. (PR). C ...... 2 ...... R4 Harrisia aboriginum ...... Cactaceae ...... Pricklyapple, aboriginal U.S.A. (FL). (shellmound applecactus). C* ...... 5 ...... R8 Hazardia orcuttii ...... Asteraceae ...... Orcutt’s hazardia ...... U.S.A. (CA), Mexico. C* ...... 2 ...... R1 Hedyotis fluviatilis ...... Rubiaceae ...... Kampua‘a ...... U.S.A. (HI). C* ...... 8 ...... R4 Helianthus verticillatus ... Asteraceae ...... Sunflower, whorled ...... U.S.A. (AL, GA, TN). C* ...... 2 ...... R2 Hibiscus dasycalyx ...... Malvaceae ...... Rose-mallow, Neches U.S.A. (TX). River. C* ...... 5 ...... R8 Ivesia webberi ...... Rosaceae ...... Ivesia, Webber ...... U.S.A. (CA, NV). C* ...... 3 ...... R1 Joinvillea ascendens Joinvilleaceae ...... ‘Ohe ...... U.S.A. (HI). ascendens. PE ...... 2 ...... R1 Korthalsella degeneri ..... Viscaceae ...... Hulumoa ...... U.S.A. (HI). C* ...... 5 ...... R4 Leavenworthia crassa .... Brassicaceae ...... Gladecress, unnamed .... U.S.A. (AL). C ...... 3 ...... R4 Leavenworthia exigua Brassicaceae ...... Gladecress, Kentucky .... U.S.A. (KY). var. laciniata. C* ...... 2 ...... R2 Leavenworthia texana .... Brassicaceae ...... Gladecress, Texas gold- U.S.A. (TX). en. C* ...... 8 ...... R6 Lepidium ostleri ...... Brassicaceae ...... Peppergrass, Ostler’s .... U.S.A. (UT). C* ...... 5 ...... R4 Linum arenicola ...... Linaceae ...... Flax, sand ...... U.S.A. (FL). C* ...... 3 ...... R4 Linum carteri var. carteri Linaceae ...... Flax, Carter’s small-flow- U.S.A. (FL). ered. PE ...... 2 ...... R1 Melicope Rutaceae ...... Alani ...... U.S.A. (HI). christophersenii. PE ...... 2 ...... R1 Melicope hiiakae ...... Rutaceae ...... Alani ...... U.S.A. (HI). PE ...... 2 ...... R1 Melicope makahae ...... Rutaceae ...... Alani ...... U.S.A. (HI). C ...... 3 ...... R8 Mimulus fremontii var. Phrymaceae ...... Monkeyflower, Vanden- U.S.A. (CA). vandenbergensis. berg. C* ...... 2 ...... R1 Myrsine fosbergii ...... Myrsinaceae ...... Kolea ...... U.S.A. (HI). C* ...... 2 ...... R1 Myrsine vaccinioides ...... Myrsinaceae ...... Kolea ...... U.S.A. (HI). C* ...... 8 ...... R5 Narthecium americanum Liliaceae ...... Asphodel, bog ...... U.S.A. (DE, NC, NJ, NY, SC). C* ...... 2 ...... R1 Nothocestrum latifolium Solanaceae ...... ‘Aiea ...... U.S.A. (HI). C* ...... 2 ...... R1 Ochrosia haleakalae ...... Apocynaceae ...... Holei ...... U.S.A. (HI).

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TABLE 1—CANDIDATE NOTICE OF REVIEW (ANIMALS AND PLANTS)—Continued [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead Scientific name Family Common name Historical range Category Priority region

C* ...... 3 ...... R2 Pediocactus Cactaceae ...... Cactus, Fickeisen plains U.S.A. (AZ). peeblesianus var. fickeiseniae. PT ...... 2 ...... R6 Penstemon grahamii ...... Scrophulariaceae ...... Beardtongue, Graham’s U.S.A. (CO, UT). C* ...... 9 ...... R6 Penstemon scariosus Scrophulariaceae ...... Beardtongue, White U.S.A. (CO, UT). var. albifluvis. River. C* ...... 2 ...... R1 Peperomia subpetiolata Piperaceae ...... ‘Ala ‘ala wai nui ...... U.S.A. (HI). C ...... 5 ...... R8 Phacelia stellaris ...... Hydrophyllaceae ...... Phacelia, Brand’s ...... U.S.A. (CA), Mexico. C* ...... 2 ...... R1 Phyllostegia bracteata ... Lamiaceae ...... No common name ...... U.S.A. (HI). C* ...... 8 ...... R1 Phyllostegia floribunda ... Lamiaceae ...... No common name ...... U.S.A. (HI). C* ...... 9 ...... R1 Physaria douglasii Brassicaceae ...... Bladderpod, White Bluffs U.S.A. (WA). tuplashensis. C* ...... 8 ...... R4 Physaria globosa ...... Brassicaceae ...... Bladderpod, Short’s ...... U.S.A. (IN, KY, TN). C* ...... 2 ...... R6 Pinus albicaulis ...... Pinaceae ...... Pine, whitebark ...... U.S.A. (CA, ID, MT, NV, OR, WA, WY), Can- ada (AB, BC). C* ...... 8 ...... R4 Platanthera integrilabia .. Orchidaceae ...... Orchid, white fringeless U.S.A. (AL, GA, KY, MS, NC, SC, TN, VA). PE ...... 3 ...... R1 Platydesma cornuta var. Rutaceae ...... No common name ...... U.S.A. (HI). cornuta. PE ...... 3 ...... R1 Platydesma cornuta var. Rutaceae ...... No common name ...... U.S.A. (HI). decurrens. C* ...... 2 ...... R1 Platydesma remyi ...... Rutaceae ...... No common name ...... U.S.A. (HI). C ...... 2 ...... R1 Pleomele fernaldii ...... Agavaceae ...... Hala pepe ...... U.S.A. (HI). PE ...... 2 ...... R1 Pleomele forbesii ...... Agavaceae ...... Hala pepe ...... U.S.A. (HI). C* ...... 11 ...... R8 Potentilla basaltica ...... Rosaceae ...... Cinquefoil, Soldier U.S.A. (NV). Meadow. C* ...... 3 ...... R1 Pseudognaphalium Asteraceae ...... ‘Ena‘ena ...... U.S.A. (HI). (=Gnaphalium) sandwicensium var. molokaiense. PE ...... 3 ...... R1 Psychotria hexandra Rubiaceae ...... Kopiko ...... U.S.A. (HI). oahuensis. PE ...... 2 ...... R1 Pteralyxia macrocarpa ... Apocynaceae ...... Kaulu ...... U.S.A. (HI). C* ...... 2 ...... R1 Ranunculus hawaiensis Ranunculaceae ...... Makou ...... U.S.A. (HI). C* ...... 2 ...... R1 Ranunculus mauiensis ... Ranunculaceae ...... Makou ...... U.S.A. (HI). C* ...... 8 ...... R8 Rorippa subumbellata .... Brassicaceae ...... Cress, Tahoe yellow ...... U.S.A. (CA, NV). C* ...... 2 ...... R1 Schiedea pubescens ..... Caryophyllaceae ...... Ma‘oli‘oli ...... U.S.A. (HI). C* ...... 2 ...... R1 Schiedea salicaria ...... Caryophyllaceae ...... No common name ...... U.S.A. (HI). C* ...... 5 ...... R8 Sedum eastwoodiae ...... Crassulaceae ...... Stonecrop, Red Moun- U.S.A. (CA). tain. C* ...... 2 ...... R1 Sicyos macrophyllus ...... Cucurbitaceae ...... ‘Anunu ...... U.S.A. (HI). C ...... 12 ...... R4 Sideroxylon reclinatum Sapotaceae ...... Bully, Everglades ...... U.S.A. (FL). austrofloridense. C* ...... 2 ...... R4 Solanum conocarpum .... Solanaceae ...... Bacora, marron ...... U.S.A. (PR). C* ...... 8 ...... R1 Solanum nelsonii ...... Solanaceae ...... Popolo ...... U.S.A. (HI). C* ...... 8 ...... R4 Solidago plumosa ...... Asteraceae ...... Goldenrod, Yadkin River U.S.A. (NC). C* ...... 2 ...... R2 Sphaeralcea gierischii .... Malvaceae ...... Mallow, Gierisch ...... U.S.A. (AZ, UT). C* ...... 2 ...... R1 Stenogyne cranwelliae ... Lamiaceae ...... No common name ...... U.S.A. (HI). C ...... 8 ...... R2 Streptanthus bracteatus Brassicaceae ...... Twistflower, bracted ...... U.S.A. (TX). C* ...... 8 ...... R4 Symphyotrichum Asteraceae ...... Aster, Georgia ...... U.S.A. (AL, FL, GA, NC, georgianum. SC). PE ...... R1 Tetraplasandra lydgatei Araliaceae ...... No common name ...... U.S.A. (HI). C* ...... 8 ...... R6 Trifolium friscanum ...... Fabaceae ...... Clover, Frisco ...... U.S.A. (UT). PE ...... 2 ...... R1 Zanthoxylum oahuense Rutaceae ...... A‘e ...... U.S.A. (HI).

FERNS AND ALLIES

C* ...... 8 ...... R1 Cyclosorus boydiae ...... Thelypteridaceae ...... No common name ...... U.S.A. (HI). PE ...... 2 ...... R1 Doryopteris takeuchii ..... Pteridaceae ...... No common name ...... U.S.A. (HI). C* ...... 2 ...... R1 Huperzia (= Lycopodiaceae ...... Wawae‘iole ...... U.S.A. (HI). Phlegmariurus) stemmermanniae. C* ...... 3 ...... R1 Microlepia strigosa var. Dennstaedtiaceae ...... Palapalai ...... U.S.A. (HI). mauiensis (= Microlepia mauiensis). C ...... 3 ...... R4 Trichomanes punctatum Hymenophyllaceae ...... Florida bristle fern ...... U.S.A. (FL) floridanum.

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TABLE 2—ANIMALS AND PLANTS FORMERLY CANDIDATES OR FORMERLY PROPOSED FOR LISTING [Note: See end of SUPPLEMENTARY INFORMATION for an explanation of symbols used in this table]

Status Lead re- Scientific name Family Common name Historical range Code Expl. gion

BIRDS

Rp ...... A ...... R6 ...... Charadrius montanus .... Charadriidae ...... Plover, mountain ...... U.S.A. (AZ, CA, CO, KS, MT, ND, NE, NM, NV, OK, SD, TX, UT, WY), Canada (AB, SK), Mexico.

FISH

E ...... L ...... R4 ...... Phoxinus saylori ...... Cyprinidae ...... Dace, laurel ...... U.S.A. (TN). E ...... L ...... R4 ...... Etheostoma susanae ..... Percidae ...... Darter, Cumberland ...... U.S.A. (KY, TN). E ...... L ...... R4 ...... Etheostoma phytophilum Percidae ...... Darter, rush ...... U.S.A. (AL). E ...... L ...... R4 ...... Etheostoma moorei ...... Percidae ...... Darter, yellowcheek ...... U.S.A (AR). E ...... L ...... R4 ...... Noturus crypticus ...... Ictaluridae ...... Madtom, chucky ...... U.S.A. (TN).

SNAILS

Rc ...... A ...... R2 ...... Pyrgulopsis gilae ...... Hydrobiidae ...... Springsnail, Gila ...... U.S.A. (NM). Rc ...... A ...... R2 ...... Pyrgulopsis thermalis ..... Hydrobiidae ...... Springsnail, New Mexico U.S.A. (NM).

INSECTS

T(S/A) .... L ...... R4 ...... Leptotes cassius Lycaenidae ...... Butterfly, cassius blue .... U.S.A. (FL), Bahamas, theonus. Greater Antilles, Cay- man Islands. T(S/A) .... L ...... R4 ...... Hemiargus ceraunus Lycaenidae ...... Butterfly, ceraunus blue U.S.A. (FL), Bahamas. antibubastus. E ...... L 1 ...... R4 ...... Cyclargus thomasi Lycaenidae ...... Butterfly, Miami blue ...... U.S.A. (FL), Bahamas. bethunebakeri. T(S/A) .... L ...... R4 ...... Cyclargus ammon ...... Lycaenidae ...... Butterfly, Nickerbean U.S.A. (FL), Bahamas, blue. Cuba. Rc ...... A ...... R1 ...... Nysius wekiuicola ...... Lygaeidae ...... Bug, Wekiu ...... U.S.A. (HI). E ...... L ...... R8 ...... Dinacoma caseyi ...... Scarabidae ...... June beetle, Casey’s ..... U.S.A. (CA).

FLOWERING PLANTS

E ...... L ...... R6 ...... Ipomopsis polyantha ...... Polemoniaceae ...... Skyrocket, Pagosa ...... U.S.A. (CO) T ...... L ...... R6 ...... Penstemon debilis ...... Scrophulariaceae ...... Beardtongue, Parachute U.S.A. (CO) T ...... L ...... R6 ...... Phacelia submutica ...... Hydrophyllaceae ...... Phacelia, DeBeque ...... U.S.A. (CO) 1 Emergency.

[FR Doc. 2011–27122 Filed 10–25–11; 8:45 am] BILLING CODE P

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Part III

Department of Labor

Office of Labor-Management Standards 29 CFR 404 Labor Organization Officer and Employee Reports; Final Rule

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DEPARTMENT OF LABOR prior to January 1, 2012, the Department income received. Subject to certain will accept either the Revised Form exclusions, these interests, transactions, Office of Labor-Management LM–30 published with this rule, the and incomes include: Standards pre-2007 Form LM–30, or the 2007 1. Payments or benefits with monetary Form LM–30. value from, or interests in, an employer 29 CFR Part 404 FOR FURTHER INFORMATION CONTACT: whose employees the filer’s union RIN 1215–AB74 Andrew R. Davis, Chief of the Division represents or is actively seeking to RIN 1245–AA01 of Interpretations and Standards, Office represent; of Labor-Management Standards, U.S. 2. Transactions involving any stock, Labor Organization Officer and Department of Labor, 200 Constitution bond, security, or loan to or from, or Employee Reports Avenue, NW., Room N–5609, other interest in, an employer whose Washington, DC 20210, employees the filer’s union represents AGENCY: Office of Labor-Management or is actively seeking to represent; Standards, Department of Labor. [email protected], (202) 693–0123 (this is not a toll-free number), (800) 3. Income or any other benefit with ACTION: Final rule. 877–8339 (TTY/TDD). monetary value from, or other interest in, a business a substantial part of SUMMARY: The Office of Labor- SUPPLEMENTARY INFORMATION: The which consists of buying from, selling Management Standards of the Regulatory Information Number (RIN) or leasing to, or otherwise dealing with Department of Labor (Department) is identified for this rulemaking changed an employer whose employees the revising the Form LM–30 Labor with publication of the Spring 2010 filer’s union represents or is actively Organization Officer and Employee Regulatory Agenda due to an seeking to represent; Report and its instructions upon review organizational restructuring. The old 4. Income or any other benefit with of the comments received in response to RIN (1215–AB74) was assigned to the monetary value from, or other interest its August 10, 2010 Notice of Proposed Employment Standards Administration, in, a business any part of which consists Rulemaking (NRPM). The Form LM–30 which no longer exists; a new RIN of buying from, or selling or leasing implements section 202 of the Labor- (1245–AA01) has been assigned to the directly or indirectly to, or otherwise Management Reporting and Disclosure Office of Labor-Management Standards. Act of 1959 (LMRDA or Act), the dealing with the filer’s union or a trust 2 purpose of which is to require officers I. Background in which the filer’s union is interested; 5. Business transactions or and employees of labor organizations A. Introduction (unions) to publicly disclose possible arrangements with an employer whose conflicts between their personal This final rule, which revises the employees the filer’s union represents financial interests and their duty to the Form LM–30 and its instructions, is part or is actively seeking to represent; and labor union and its members. The rule of the Department’s ongoing effort to 6. Payment of money or any other revises the Form LM–30 and its effectively administer the reporting thing of value from any employer not instructions, based on an examination of requirements of the LMRDA. The Form covered under the above categories, or the policy and legal justifications for, LM–30 Labor Organization Officer and payment of money or other thing of and utility of, changes enacted in the Employee Report is designed to provide value from a person who acts as a labor Form LM–30 Final Rule (2007 rule), for the disclosure of payments to, and relations consultant to an employer. published on July 2, 2007. The principal interests held by, union officers and The Form LM–30 had remained revisions are: Union leave and no employees, when such payments and essentially unchanged from 1963 until docking payments are not required to be interests pose an actual or potential 2007. In 2005, the Department reported on the Form LM–30; union conflict of interest. In developing the published a Notice of Proposed stewards and others representing the proposed rule and considering and Rulemaking that proposed far-reaching union in similar positions are not responding to the comments submitted changes to the form. 70 FR 51165 (Aug. covered by the Form LM–30 reporting on the proposal, the Department has 29, 2005). After a notice and comment requirements; the requirement to report kept in mind that a fair and transparent period, the Department issued the 2007 certain bona fide loans is limited, as is reporting system for union officers and final rule. 72 FR 36105 (July 2, 2007). reporting of payments from certain employees must consider the interests The 2007 rule brought significant trusts, unions, and employers in of unions, their members, and the changes to the LM–30 and its competition with employers whose public, and must balance the benefits instructions and represented, in some employees are represented by an served by disclosure with the burden instances, a sharp departure from the official’s union; and the scope of placed on reporting individuals and Department’s previous interpretations of reporting required of officers and labor organizations. section 202. The rule completely revised employees of international, national, The Form LM–30 implements section the layout and overall structure of the 202 of the LMRDA, 29 U.S.C. 432. Form LM–30, lengthening the form from and intermediate body unions is 1 revised. This rule also establishes a new Under section 202, union officers and two to nine pages with the creation of form and instructions, as well as employees (collectively, union officials) are required to file reports if they, or 2 These trusts are defined by section 3(l) of the regulatory text concerning certain Act as: reporting obligations. This rule largely their spouses or minor children, engage in certain transactions or have financial a trust or other fund or organization (1) Which implements the Department’s proposal was created or established by a labor organization, in the NPRM, with modifications of holdings that may constitute a conflict or one or more of the trustees or one or more several minor aspects of the layout of of interest with their union members of the governing body of which is selected or appointed by a labor organization, and (2) a the form and instructions. responsibilities. The Act requires public disclosure of certain financial interests primary purpose of which is to provide benefits for DATES: the members of such labor organization or their This rule is effective on held, transactions engaged in, and November 25, 2011, and it is applicable beneficiaries. Unless otherwise specified, references to ‘‘trust’’ to Form LM–30 filers with fiscal years 1 Unless otherwise stated all references to in this preamble are to these statutorily defined beginning on or after January 1, 2012. statutory provisions, e.g., ‘‘section 202,’’ are to trusts, which are sometimes referred to as ‘‘section For filers with fiscal years beginning provisions in the LMRDA. 29 U.S.C. 401–531. 3(l) trusts.’’

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five schedules, continuation pages, and which union officers and employees The Senate Report presented ‘‘three various sections consisting of would be able to comply with these reasons for relying upon the milder instructions and examples. (The 2007 changes, and whether the changes sanction of reporting and disclosure form and instructions are available at would better implement the LMRDA. [relative to establishing criminal http://www.dol.gov/olms.) The Department invited general and penalties] to eliminate improper Upon review of the 2007 rule, and specific comments on any aspect of this conflicts of interest,’’ which can be input from the regulated community, proposal; it also invited comment on summarized as follows: the Department issued its proposed specific points, as noted throughout the Disclosure discourages questionable revisions to that rule on August 10, text of the notice. practices. ‘‘The searchlight of publicity is a 2010, stating its view that many of the B. History of the LMRDA’s Reporting strong deterrent.’’ Disclosure rules should be objectives sought to be met by the 2007 tried before more severe methods are rule—including simplification of the Requirements employed. reporting requirements and adherence In enacting the LMRDA in 1959, a Disclosure aids union governance. to the reporting scheme intended by bipartisan Congress expressed the Reporting and publication will enable unions Congress—had not been accomplished. ‘‘to better regulate their own affairs. The conclusion that in the labor and members may vote out of office any See 75 FR 48416. The Department, at 75 management fields ‘‘there have been a FR 48417, explained that the 2007 rule individual whose personal financial interests number of instances of breach of trust, conflict with his duties to the members,’’ and left unresolved fundamental questions corruption, disregard of the rights of reporting and disclosure would facilitate about the reporting obligations of union individual employees, and other failures legal action by members against ‘‘officers officials and raised policy and legal to observe high standards of who violate their duty of loyalty to the issues warranting reexamination by the responsibility and ethical conduct members.’’ Department. These fundamental which require further and Disclosure creates a record. The reports will furnish a ‘‘sound factual basis for further questions regarding the Form LM–30 supplementary legislation that will reporting requirements included—the action in the event that other legislation is afford necessary protection of the rights required.’’ coverage of stewards and other union and interests of employees and the representatives serving in similar public generally as they relate to the Senate Report, at 16, reprinted in 1 positions; the reporting of certain loans activities of labor organizations, Leg. History, at 412. The Report further stated: and union leave and no docking employers, labor relations consultants, payments; the reporting of payments and their officers and representatives.’’ The committee bill attacks the problem [of from certain trusts and unions; the Section 2(b), 29 U.S.C. 401(b). conflicts of interest] by requiring union reporting of payments from businesses officers and employees to file reports with that compete with an employer whose The LMRDA was the direct outgrowth the Secretary of Labor disclosing to union employees are represented by an of a Congressional investigation members and the general public any official’s union or whose employees the conducted by the Select Committee on investments or transactions in which their union is actively seeking to represent; Improper Activities in the Labor or personal financial interests may conflict with and reporting by higher level union Management Field, commonly known as their duties to the members. The bill requires officials about relationships with the McClellan Committee. The LMRDA only the disclosure of conflicts of interest as addressed various ills through a set of defined therein. The other investments of businesses and employers that pose union officials and their other sources of conflicts concerning subordinate integrated provisions aimed at labor- management relations governance and income are left private because they are not affiliates of their union. In addition, the matters of public concern. No union officer Department identified questions management. These provisions include or employee is obliged to file a report unless concerning the layout of the 2007 Form financial reporting and disclosure he holds a questionable interest in or has LM–30 and instructions and whether requirements for labor organizations, engaged in a questionable transaction. The they provided useful and adequate their officers and employees, employers, bill is drawn broadly enough, however, to assistance to filers. labor relations consultants, and surety require disclosure of any personal gain which Prompted by these uncertainties about companies. See 29 U.S.C. 431–36, 441. an officer or employee may be securing at the the 2007 rule, the Department, on March To highlight the potential conflicts of expense of the union members. 19, 2009, issued a non-enforcement interest to which union officers and Senate Report, at 14–15, reprinted in policy regarding the 2007 Form LM–30 employees could be susceptible, the 1 Leg. History, at 410–11. reporting requirements, allowing filers Senate Committee Report explained: Both the Senate and House Reports to use either the pre-2007 or 2007 Form recognized that a reportable interest was 3 [This section] requires a union officer or LM–30 report. Further, the Department employee to disclose any securities or other not necessarily an illegal practice. As held a stakeholder meeting on July 21, interest which he has in a business whose the House Report stated: 2009 to solicit comments regarding the employees his labor union represents or In some instances matters to be reported 2007 rule and potential revisions to the ‘‘seeks to represent’’ in collective bargaining. are not illegal and may not be improper but Form LM–30. In the NPRM, the When a prominent union official has an may serve to disclose conflicts of interest. Department invited comment on the interest in the business with which the union Even in such instances disclosure will enable proposed changes with respect to their is bargaining, he sits on both sides of the the persons whose rights are affected, the benefits, the ease or difficulty with table. He is under temptation to negotiate a public, and the Government, to determine soft contract or to refrain from enforcing whether the arrangements or activities are working rules so as to increase the company’s 3 The Department modifies this non-enforcement justifiable, ethical, and legal. profits. This is unfair to both union members policy with the publication of today’s rule. For House Report No. 741 (House Report), filers with reportable payments or interests in fiscal and competing businesses. years beginning prior to January 1, 2012, the at 4, reprinted in 1 Leg. History, at 762. Department will accept either the Revised Form Senate Report No. 187 (1959) (Senate See Senate Report, at 38, reprinted in 1 LM–30 published with this rule, the 2007 Form Report) at 15, reprinted in NLRB Leg. History, at 434 (‘‘By requiring LM–30, or the pre-2007 Form LM–30. For filers Legislative History of the Labor- reports * * *, the committee is not to with reportable payments or interests in fiscal years beginning on or after January 1, 2012, the Management Reporting and Disclosure be construed as necessarily condemning Department will accept only the Revised Form LM– Act of 1959 (2 volumes) (Leg. History), the matters to be reported if they are not 30. 1 Leg. History, at 411. specifically declared to be improper or

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made illegal under other provisions of which should prevent a trade union official, disclosure of conflicts of interest. The the bill or other laws’’). at any level, from investing personal funds in other investments of union officials and Conflict-of-interest standards, the publicly traded securities of corporate their other sources of income are left including disclosure obligations of enterprises unrelated to the industry or area private because they are not matters of individuals and entities occupying in which the official has a particular trade union responsibility. public concern.’’ Hearings on S. 505 positions of trust, are firmly established [These principles] apply not only where before the Subcommittee on Labor of the in U.S. law. As stated in the House the investments are made by union officials, Senate Committee on Labor and Public Report, repeating almost verbatim the but also where third persons are used as Welfare (1959) (Senate Hearings), at 123; same point in the Senate Report: blinds or covers to conceal the financial see Senate Report, at 15, reprinted in 1 For centuries the law of fiduciaries has interests of union officials. Leg. History, at 411. Professor Cox forbidden any person in a position of trust Ethical Practices Code IV: Investments additionally noted that because the subject to such law to hold interests or enter and Business Interests of Union, 105 reporting requirements were based, in into transactions in which self-interest may Cong. Rec.*16379 (daily ed. Sept. 3, part, upon the Ethical Practices Code conflict with complete loyalty to those whom formulated by the AFL–CIO, union he serves. * * * The same principle * * * 1959), reprinted in 2 Leg. History, at should be equally applicable to union 1407–08. See also Ethical Practices Code officials who adhered to this code officers and employees [quoting the AFL– II: Health and Welfare Funds, Id., 2 Leg. would have ‘‘virtually nothing to CIO’s ethical practices code]: ‘‘[A] basic History, at 1406–07. disclose in his report to the public.’’ ethical principle in the conduct of union The Act was crafted with particular Senate Hearings, at 123. affairs is that no responsible trade union regard for the unique function and C. Statutory Language official should have a personal financial status of labor unions. Then Senator interest which conflicts with the full John F. Kennedy, who was the chief Section 202 provides in its entirety: performance of his fiduciary duties as a SEC. 202. (a) Every officer of a labor sponsor of the Senate bill, S. 505, which worker’s representative.’’ organization and every employee of a served as the foundation for the House Report, at 10–11, reprinted at labor organization (other than an LMRDA, stated that the legislation was 1 Leg. History, at 768–69. Senate Report, employee performing exclusively ‘‘designed to permit responsible at 14, reprinted in 1 Leg. History, at 410. clerical or custodial services) shall file unionism to operate without being See generally Restatement (Second) of with the Secretary a signed report listing undermined by either racketeering Trusts (1959) §§ 170, 173; Restatement and describing for his preceding fiscal tactics or bureaucratic controls. It is (Second) of Agency (1958) §§ 381, 387– year— designed to strike a balance between the 98. (1) Any stock, bond, security, or other The reporting provisions of the Act dangers of to [sic] much and too little legislation in this field.’’ 105 Cong. Rec. interest, legal or equitable, which he or his represent, in part, an effort to codify spouse or minor child directly or indirectly various requirements contained in an S816 (daily ed. Jan. 20, 1959), reprinted held in, and any income or any other benefit extensive code of ethics voluntarily in 1 Leg. History, at 969. with monetary value (including reimbursed adopted by the AFL–CIO in 1957 and As noted by Senator Kennedy, a expenses) which he or his spouse or minor applied to its affiliated unions and balance of these interests was central to child derived directly or indirectly from, an officials. See Senate Report, at 12–16, the enactment of the LMRDA. Congress employer whose employees such labor sought to address legitimate concerns organization represents or is actively seeking reprinted in 1 Leg. History, at 408–12; to represent, except payments and other House Report, at 9–12, reprinted in 1 about illegal and undemocratic behaviors without permitting that benefits received as a bona fide employee of Leg. History, at 767–70. See also such employer; Archibald Cox, Internal Affairs of Labor concern to be used as an excuse for (2) Any transaction in which he or his Unions Under the Labor Reform Act of undermining organized labor. Further, spouse or minor child engaged, directly or 1959, 58 Mich. L. Rev. 819, 824–29 Congress sought to address the indirectly, involving any stock, bond, (1960). The following excerpts from this importance of balancing necessary security, or loan to or from, or other legal or code demonstrate the similarities disclosure and regulation with undue equitable interest in the business of an intrusion on union operations and the employer whose employees such labor between a union official’s fiduciary duty organization represents or is actively seeking and the disclosure requirements of protection of union officers’ privacy interests. As stated in the Senate Report, to represent; section 202. (3) Any stock, bond, security, or other ‘‘[t]he committee recognized the interest, legal or equitable, which he or his [A] basic ethical principle in the conduct desirability of minimum interference by of union affairs is that no responsible trade spouse or minor child directly or indirectly union official should have a personal Government in the internal affairs of held in, and any income or any other benefit financial interest which conflicts with the any private organization * * * in with monetary value (including reimbursed full performance of his fiduciary duties as a establishing and enforcing statutory expenses) which he or his spouse or minor workers’ representative. standards great care should be taken not child directly or indirectly derived from, any [U]nion officers and agents should not be to undermine union self-government or business a substantial part of which consists prohibited from investing their personal weaken unions in their role as of buying from, selling or leasing to, or otherwise dealing with, the business of an funds in their own way in the American free collective-bargaining agents.’’ Senate enterprise system so long as they are employer whose employees such labor scrupulously careful to avoid any actual or Report, at p. 7, reprinted in 2 Leg. organization represents or is actively seeking potential conflict of interest. History, at 403. to represent; In a sense, a trade union official holds a Professor Archibald Cox played a (4) Any stock, bond, security, or other position comparable to that of a public pivotal role in drafting the legislation interest, legal or equitable, which he or his servant. Like a public servant, he has a high that ultimately became the LMRDA. His spouse or minor child directly or indirectly fiduciary duty not only to serve the members testimony before the Senate held in, and any income or any other benefit of his union honestly and faithfully, but also subcommittee that was considering this with monetary value (including reimbursed to avoid personal economic interest which legislation presaged the language in the expenses) which he or his spouse or minor may conflict or appear to conflict with the child directly or indirectly derived from, a full performance of his responsibility to those Senate Report, describing the reporting business any part of which consists of buying whom he serves. obligation as a limited one. He testified: from, or selling or leasing directly or There is nothing in the essential ethical ‘‘The bill is narrowly drawn to meet a indirectly to, or otherwise dealing with such principles of the trade union movement specific evil. It requires only the labor organization;

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(5) Any direct or indirect business information and the burden imposed on the NPRM will be discussed in this transaction or arrangement between him or union officials. section of the rule. Comments on his spouse or minor child and any employer (3) The revisions in this rule better specific changes and revisions to Form whose employees his organization represents clarify the form and instructions and LM–30 will be addressed in subsequent or is actively seeking to represent, except organize the information in a useful sections, which are organized by topic. work performed and payments and benefits received as a bona fide employee of such format. As explained in the NPRM, the Review of General Comments in employer and except purchases and sales of Support of NPRM goods or services in the regular course of Department fully recognizes the business at prices generally available to any importance of union officer and Comments submitted by 17 national/ employee of such employer; and employee reporting and the disclosure international unions, two federations of (6) Any payment of money or other thing of pertinent financial information to labor organizations, one local union, of value (including reimbursed expenses) union members and the public. This one law firm (on behalf of various which he or his spouse or minor child rule effectuates these purposes and clients, including unions, insurance received directly or indirectly from any reflects a proper balancing of companies, and service providers to employer or any person who acts as a labor transparency with the need to maintain unions and benefit plans), and one relations consultant to an employer, except union autonomy and to avoid public policy organization generally payments of the kinds referred to in section expressed strong support for the 302(c) of the Labor Management Relations overburdening unions and their officials Act, 1947, as amended. with unnecessary reporting Department’s proposed revisions to requirements. Because the 2007 rule did Form LM–30. (b) The provisions of paragraphs (1), not adequately consider this balance, it Multiple union commenters, a public (2), (3), (4), and (5) of subsection (a) did not succeed in properly policy organization, and a law firm shall not be construed to require any implementing the LMRDA. The generally supported the Department’s such officer or employee to report his Department has carefully considered the NPRM, but expressed concerns about bona fide investments in securities comments received from the regulated certain aspects of the proposal or traded on a securities exchange community and the public about the suggested certain modifications. These registered as a national securities 2007 rule and the changes proposed by issues and proposed modifications will exchange under the Securities Exchange the Department. Generally, the be discussed later in this rule, in the Act of 1934, in shares in an investment Department has included in the final relevant sections to which each topic company registered under the rule the changes proposed. Unless applies. Investment Company Act or in otherwise stated herein, the Department securities of a public utility holding Review of General Comments in has made these changes for the reasons Opposition to NPRM company registered under the Public stated in the NPRM. Rather than restate The comments submitted in Utility Holding Company Act of 1935, in full the reasons set out at length in opposition to the NPRM include the or to report any income derived the NPRM, the Department has above-referenced form letter, 36 therefrom. attempted to limit repetition to those (c) Nothing contained in this section additional comments submitted by instances where a more detailed shall be construed to require any officer individuals, and two comments discussion is needed to provide context or employee of a labor organization to submitted by public policy to comments received on the proposed file a report under subsection (a) unless organizations. A third public policy rule and the Department’s response to he or his spouse or minor child holds organization opposed some aspects of those comments. or has held an interest, has received the proposal. income or any other benefit with E. Review of General Comments Most of the opposing comments, apart monetary value or a loan, or has Received in Response to NPRM from those submitted by the public engaged in a transaction described The Department received 62 unique policy organizations, were general in therein. 29 U.S.C. 432. comments to the NPRM, from 286 nature and did not directly, if at all, commenters.4 Of the 62 unique address the Form LM–30 or the D. Rationale for Rulemaking on Form Department’s proposed revisions. The LM–30 comments received, 39 expressed opposition to the Department’s proposal above-referenced form letter stated that The Department is modifying the to revise Form LM–30, 22 supported the the proposed Form LM–30 regulations Form LM–30 for the following reasons, proposal, and an additional comment, should be rejected because they would which the Department identified in the from a labor organization, expressed undermine efforts regarding recent NPRM as the bases for its proposed neither support nor opposition to the changes made to unions’ reporting and changes: proposal, but requested an industry- disclosure requirements, which were (1) The 2007 Form LM–30 rule specific exemption to the LM–30 designed to increase transparency. The created uncertainty for the regulated reporting requirement.5 letter also stated that union members community, presented unresolved Comments that expressed, in whole or have relied on the LMRDA to questions regarding the rule’s reporting in part, general support or opposition to ‘‘discourage and expose’’ corruption. requirements, engendered strong Two individuals that identified objections to key aspects of the rule, 4 One of the unique comments was a form letter themselves as union members asserted such as the reporting of certain loans, submitted by 225 individuals. Additionally, one that conflict-of-interest reporting including mortgages and student loans; commenter submitted two versions of the same requirements should not be lessened, the reporting of union leave and no comment. and voiced their support of 5 The labor organization suggested that the Form docking payments; and the extension of LM –30 reporting obligation should not apply to transparency. While some private the Form LM–30 reporting requirement union officials who receive free admission to citizens limited their comments to to individuals serving as union stewards performances for union-related purposes, or for expressing general dissatisfaction with or in similar positions representing the purposes of voting for industry awards. The union the current political administration, offered clarifying language that would exempt these union. examples of free admission from Form LM–30 other commenters expressed general (2) The revisions adopted in this rule reporting. The issue will be addressed in section anti-union sentiment, and did not refer better balance the disclosure of III.E. of the preamble. to the proposed revisions to Form LM–

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30 or any aspect of LMRDA reporting interests of union officials and requirements. The verb ‘‘rescind,’’ for requirements. Additional commenters transparent labor-management relations. example, suggests removal or abrogation made general statements that unions Another public policy organization in general, and is equally applicable to should be held accountable for potential voiced strong opposition to the NPRM, both reporting requirements and conflicts of interest, and generally and stated that the NPRM ‘‘provides no reporting exemptions. should not be exempt from reporting evidence that is consistent with LMRDA The Department fully understands requirements. Apparently language’’ to justify its proposed that its ‘‘rules and regulations misunderstanding the Department’s revisions to Form LM–30. The prescribing the form and publication of proposal, multiple commenters commenter stated that ‘‘[s]ince 1959, the reports required to be filed’’ must erroneously characterized the NPRM as Department has essentially ignored conform to the statute. As explained an effort to eliminate conflict-of-interest Form LM–30 reporting and throughout this preamble, the proposed reporting altogether. disclosures.’’ The commenter argued changes, as adopted in this final rule, In response to these comments, the that the NPRM proposes to ‘‘hide are entirely consistent with the language Department notes that its proposal and [union-employer] collusions,’’ and and purpose of the LMRDA. By revising this final rule have been drafted with ‘‘essentially abandons individual the Form LM–30 to feature a simplified the purpose of best effectuating the workers in its analysis.’’ For the reasons format and more concise, clear disclosure requirements of the LMRDA. mentioned above in response to a instructions, the final rule will facilitate The goal has been to revise the 2007 similar comment, the Department filers’ compliance with Form LM–30 rule in a way that achieves that purpose. disagrees with the assertions. The reporting requirements and increase the Contrary to the suggestions by several interest of workers, union members, and form’s utility to the public. commenters, the Department’s the public in labor-management The same commenter suggests that the Department has disregarded the intent proposals are not designed to achieve transparency is a significant goal of the of Congress and conferred upon itself arbitrary goals or political objectives. statute, and has been a primary the authority to create administrative Indeed, many commenters appear to consideration in this rulemaking. The exemptions in derogation of the have overlooked that most aspects of the importance of balancing the benefits of statutory requirements. The Department 2007 rule were left unchanged by the disclosure against the burdens that disagrees, noting, as discussed Department’s proposal and this final recordkeeping and reporting imposed throughout this preamble, that the rule. As a matter of policy and statutory on the legitimate activities of unions and their officials likewise undergirds changes are based upon the interpretation, the Department believes the proposal and the final rule. The Department’s reasoned interpretation of that the approach adopted in this rule Department fully explains in the the Act. The Department additionally reflects an improvement over those sections that follow in this preamble the notes that while the term aspects of the 2007 rule that have been rationale for the changes made by this ‘‘administrative exemption’’ has long revised. final rule and how they comport with been used to describe certain exceptions One public policy organization the LMRDA’s disclosure provisions. from a general reporting obligation (as disputed the Department’s statement One public policy organization the term was also used in the 2007 rule), that the 2007 rule raised ‘‘significant challenged the Secretary’s authority to they have always been based on a policy and law questions.’’ Rather, in make the proposed revisions under reasonable interpretation of the statute. the commenter’s view, the objections to section 208 of the LMRDA, and The commenter overlooks that the the 2007 rule are ‘‘political’’ in nature, suggested that the proposed rule, Department retains discretion under the deriving from the ‘‘regulated therefore, is inval Id. Section 208 of the statute in crafting rules, and that how community.’’ The commenter stated that LMRDA, 29 U.S.C. 438, authorizes the this discretion is exercised is the NPRM should be immediately Secretary of Labor to issue, amend, and appropriately based on policy withdrawn ‘‘due to the Department’s rescind rules and regulations to considerations. inconsistent application of the term implement the LMRDA’s reporting The commenter added that the ‘‘employer’’ to different parts of the provisions. The commenter reads Secretary may limit disclosure by LMRDA’’ (discussed below in section section 208 as a ‘‘one-way ratcheting utilizing de minimis thresholds, but III, part D, of this preamble). The mechanism’’ that only permits the argued that union officials must still commenter explained its view that the Secretary to add additional reporting adhere to record retention requirements 2007 changes were necessary additions requirements, not revise existing in LMRDA section 206. While the intent to ensure needed transparency, and requirements. In its view, the changes of the comment is not clear, such urged the Department to enforce the proposed by the Department could be recordkeeping requirements apply to 2007 rule. The Department disagrees effectuated only if Congress amends the records needed to verify required with these general comments. In the Act. reports and the detail required to be Department’s view, it is evident from a The Department disagrees with the included on the reports. They do not cursory review of the 2007 rule, the commenter’s distinctive view of section apply to information not required to be compliance issues it presented, the 208. Section 208 grants the Secretary reported. history surrounding the Form LM–30 authority ‘‘to issue, amend, and rescind Finally, the commenter suggested that and its enforcement, and the comments rules and regulations prescribing the a statement used in the 2010 NPRM received at the July 21, 2009 stakeholder form and publication of reports required demonstrates the Department’s meeting, that the 2007 rule presented to be filed under Title II of the Act.’’ The intention to undermine congressional fundamental policy and legal questions verbs ‘‘amend’’ and ‘‘rescind’’ do not intent. The NPRM, at 75 FR 48416, deserving of the Department’s scrutiny. constrain this authority; they allow the states that the LMRDA reporting As a result of its review of the 2007 rule, Secretary to make changes, but do not provisions ‘‘are designed to empower the Department has developed an compel any particular modification. labor organizations, their members, and approach that more effectively targets Further, the words themselves do not the public.’’ The commenter reads the actual or potential conflict-of-interest connote that amendments and statement as proof that ‘‘DOL embraces payments and balances the need for rescissions must add to (rather than a view that part of the LMRDA’s transparency with the legitimate subtract from) the reporting purpose is to ‘empower labor unions’

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when, in fact, its purpose is to shield running for union office. One Comments on Striking a Fair Balance union members and the public from commenter concurred with the Between the Conflict-of-Interest corrupt union officials.’’ In response, comments submitted by the federation, Disclosure Requirement and Union the Department in no way intended to and stated that ‘‘the prior regulatory Officials’ Legitimate Privacy Interests intimate that the LMRDA was designed scheme * * * was unduly burdensome Numerous commenters supported the to ‘‘empower labor organizations,’’ as and far beyond the original intent of the Department’s proposal in its effort to distinct from their membership. As the law.’’ Another commenter stated that balance the legitimate needs and commenter also recognizes, the the 2007 LM–30 reporting requirements interests of unions and their officials LMRDA’s disclosure provisions provide ‘‘create a trap for even the most with the need for conflict-of-interest information that empowers union scrupulous and detail-oriented union reporting that advances labor- members and the public by promoting official,’’ adding that [‘‘b]y setting management relations, union union self-governance and financial democracy, and union financial integrity. At the same time, and as [a]standard that in some respects is impossible to meet, the current rules integrity. For example, one commenter recognized in the NPRM, the stated, ‘‘The goal of the proposed Rule, Department cannot disregard the burden discourage involvement in union activities.’’ to restore a fair balance between the that reporting places on unions and interests of unions, their members and union officials. As stated in the 1959 Echoing the burden theme, one the public, is appropriate and Senate Committee Report and repeated international union commenter stated necessary.’’ Following this theme, in the NPRM: ‘‘The committee that the Form LM–30 reporting another commenter stated that the recognized the desirability of minimum requirements outlined in the 2007 rule Department’s proposal better balances interference by Government in the require ‘‘unnecessary reporting of many union officials’ privacy interests with internal affairs of any private financial transactions and arrangements the need for members to have organization * * * in establishing and that pose no threat of a conflict of information concerning conflicts of enforcing statutory standards great care interest,’’ and create a ‘‘crushing burden interest that could undermine the should be taken not to undermine union on [its] officers and employees.’’ It union’s ability to represent the self-government or weaken unions in added that these new requirements employees. Another commenter, a their role as collective-bargaining ‘‘discourage[ ] involvement in union federation of labor organizations, stated agents.’’ Senate Report No. 187, at p. 7, that it supported the Department’s reprinted in 2 Leg. History, at 403, activities to the detriment of both the union and its employer partners.’’ Yet proposal ‘‘because, in the main, the quoted at 75 FR 48418. Thus, in regard proposal accomplishes the Department’s to its impact upon unions, the intent of another commenter supported the Department’s proposal, as it targeted the statutory purpose of striking the proper the LMRDA is not to intrude on the ‘balance’ between ‘the interests of labor legitimate role of unions in labor- ‘‘unnecessary over-complication, organizations, their members, and the management relations, but, rather, to confusion, and burden caused by its public, including the benefits served by advance the interests of employees by 2007 rule.’’ disclosure, the burden placed on furthering union and workplace One union commenter challenged the reporting entities, and preserving the democracy and reducing or eliminating 2007 rule as claiming to enhance independence of unions and their labor-management financial corruption. ‘‘transparency,’’ but rather imposed officials from unnecessary government Comments on Reporting Burden Created ‘‘expensive and time-consuming’’ regulation.’’ 75 FR at 48416. An by 2007 Rule requirements, to the detriment of the international union commenter offered Most union commenters asserted that members. Noting the increased volume support for the proposed changes, the 2007 changes to the Form LM–30 of information required to be reported stating that they are well grounded, reporting requirements are not justified on the 2007 Form LM–30, another consistent with congressional purpose in light of the burden they impose, and international union questioned whether in drafting the Act, and successful in voiced support for the rescission of such additional information would striking an appropriate balance between some of these requirements, which one effectively reveal actual or potential the goals of greater conflict-of-interest commenter described as ‘‘extremely conflicts of interest. transparency while not establishing burdensome to filers, and confusing and unnecessary burden for union officials. Comment on 2007 Rule’s Impact on misleading to the public.’’ Another II. Authority international union commented that the Compliance Assistance Efforts A. Legal Authority 2007 revisions to Form LM–30 One local union commenter cited the ‘‘impose[d] a severe burden on union intensive, multi-faceted training and The legal authority for this rule is set filers with no corresponding benefit to compliance assistance efforts forth in sections 202 and 208 of the union members or the public and raised undertaken by the commenter’s union LMRDA, 29 U.S.C. 432, 438. Section 208 fundamental legal and policy questions when the 2007 rule was adopted, and of the LMRDA provides that the with which OLMS is still struggling.’’ Secretary of Labor shall have authority supports the proposed changes, as they A federation of labor organizations to issue, amend, and rescind rules and would reduce the ‘‘complication stated that in challenging the 2007 rule regulations prescribing the form and associated with compliance.’’ The it had argued that the 2007 ‘‘changes in publication of reports required to be the universe of potential Form LM–30 commenter stated that its union ‘‘would filed under Title II of the Act and such filers and in the scope of interests and much rather devote these human other reasonable rules and regulations receipts subject to reporting exceeded resources to matters that have more as she may find necessary to prevent the the Department’s statutory authority.’’ widespread and direct benefits for our circumvention or evasion of the The commenter concurs with the NPRM members,’’ such as negotiating reporting requirements. 29 U.S.C. 438. that the 2007 changes to the Form LM– contracts, processing grievances, and 30, had they gone into effect, would organizing unrepresented workers to B. Departmental Authorization have been unduly burdensome and protect the wages and fringe benefits of Secretary’s Order 08–2009, issued could have deterred people from its membership. November 6, 2009, contains the

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delegation of authority and assignment exception of section 202 of the LMRDA. disclosure ensures that meaningful of responsibility for the Secretary’s Upon reconsideration, the Department information will be provided to union functions under the LMRDA to the has determined that the term ‘‘bona fide members without imposing undue Director of the Office of Labor- employee,’’ as used in that section, is burden on officials who do not occupy Management Standards and permits re- most naturally read to distinguish positions of influence over the union’s delegation of such authority. See 74 FR between, on the one hand, payments organizing, collective bargaining, or 58835 (Nov. 13, 2009). that are made to a union official by contract administration activities related virtue of his or her employment by the to the represented employer. Similarly, III. Revisions to the 2007 Form LM–30 company making the payment, and, on this rule modifies the scope of reporting Reporting Requirements the other hand, payments that are made insofar as payments from certain trusts This rule implements five changes to to union officials without regard to such and unions are concerned. The the Form LM–30 reporting employment. This interpretation better Department returns to its historical requirements, as proposed in the NPRM: accords with the purposes of the statute practice of not requiring officials to (1) The elimination of reporting of than the interpretation embodied in the report on payments they receive from union leave and no docking payments, 2007 rule that focuses on whether the trusts or, as a general rule, from unions. and, more broadly, a revised union or the employer making the Officials of a staff union are, however, interpretation of the bona fide employee payment exercises primary control over still required to report on Part A any exception; (2) the removal from an individual’s discrete, temporal payments they receive from the union- coverage of individuals serving as union activities as a union official. employer whose employees the staff stewards or in similar positions Second, this rule returns to the union represents. representing the union, such as a historical practice of excluding union Finally, this rule revises and clarifies member of a safety committee or a stewards and similar union the scope of ‘‘top-down’’ reporting for bargaining committee; (3) the representatives from Form LM–30 officials of international, national, and elimination of reporting for certain bona reporting. The Department believes that intermediate unions. This rule fide loans and other financial this practice comports with the language effectuates the Department’s proposal in transactions on Parts A and B of the of section 202 and better effectuates the NPRM that officers and certain form; (4) the limitation on reporting of labor-management relations than the employees of these higher level unions payments from employers competitive interpretation embodied in the 2007 must look at payments they receive from to the represented employer, certain rule. employers and businesses with trusts, and unions; and (5) a revision of Third, this rule establishes relationships with lower levels of their the reporting required of national, administrative exemptions for Parts A unions (e.g., a local or other subordinate international, and intermediate union and B of the form, whereby union body), as well as with their own level officers and employees. officials generally need only report of the union, when applying the Form First, this rule returns to the historical loans from bona fide credit institutions LM–30 reporting requirements. practice whereby union officers and if such loans are on terms more However, based on a review of the employees were not required to report favorable than those available to the comments, the Department has compensation they received under public. The 2007 rule required more determined to adopt a modification of union leave and no docking policies extensive reporting and made confusing its proposed expansion of the scope of established under collective bargaining and complex distinctions among various top-down reporting for union employees agreements or pursuant to a custom and relationships and credit institutions. of national, international, and practice under such collective This rule also incorporates the intermediate body labor organizations. bargaining agreements. These payments clarification, as set forth in 2007 Form All higher-level union employees that are made by a represented employer to LM–30 Frequently Asked Question have significant authority or influence its employees who are serving on behalf (FAQ) 70, that union officials as a with respect to affiliates will also need of the union on labor-management general rule are not required to report to report these matters in relation to relations matters. Under a union leave on savings accounts, certificates of subordinate affiliates. Higher-level policy, the employer continues the pay deposit (CD), credit cards, etc. where union employees without such and benefits of an individual who often such instruments contain the same significant authority or influence over works full time on such matters. Under terms offered to other customers affiliates or officials of affiliates will not a no docking policy, the employer without regard to an individual’s status be subject to these top-down reporting permits individuals to devote portions as a union official.6 obligations. of their work day or work week to labor- Fourth, this rule limits the reporting The 2007 rule also established management relations business, such as obligation with respect to interests in confusing exceptions to the ‘‘top-down’’ processing grievances, with no loss of and payments from employers that reporting obligations. Payments from pay. The requirement in the 2007 rule compete with employers represented by businesses that dealt with represented that union officials must report union the official’s union or that the union employers were exempt, while the leave and no docking payments has actively seeks to represent. Disclosure of instructions did not specify the been strongly criticized as unduly such payments is important, but only reportability of payments from burdensome. The Department agrees where an official is involved with the businesses that dealt with lower level that this reporting requirement imposes organizing, collective bargaining, or unions. Further, these officials were not undue burden and may impede contract administration activities related required to report any payments or other individuals from running for union to a particular represented employer, or financial benefits received by their office and otherwise serving in possesses significant authority or spouses and minor children from important union roles. The 2007 rule influence over such activities. employers and businesses involved with was based on the premise that such Establishing such limitation on a lower level union. This rule payments are for work performed on the effectuates the Department’s proposal to union’s behalf, rather than the 6 See the 2007 Form LM–30 FAQs at http:// remove these exceptions. employer’s, and are thus not payments www.dol.gov/olms/regs/compliance/ In developing this rule, the made under the ‘‘bona fide employee’’ RevisedLM30lFAQ.htm. Department has reviewed the reporting

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examples utilized in the 2007 rule and Sections 202(a)(1) and (5) of the 30 reporting requirements, with about the substantial guidance issued after the LMRDA require a labor organization one-half providing specific comments in rule’s publication as answers to FAQs in officer or employee to report payments support of the changes. One order to identify the extent to which, if that the official, his or her spouse, or international union commenter at all, reporting will be changed under minor children receive from an concurred with the view that the this rule. This rule supersedes any employer whose employees the labor ‘‘legitimacy’’ of such payments is inconsistent interpretation or other organization represents or is actively established when they are included in a guidance. The Department identifies in seeking to represent, ‘‘except payments collective bargaining agreement or the margin those instances where the and other benefits received as a bona employment practice, and that they do rule does not change the reporting fide employee of such employer.’’ 29 not pose conflict-of-interest problems obligations under the examples and U.S.C. 432(a)(1) & (5) (emphasis added). like ‘‘no show work, featherbedding, or FAQs.7 As discussed later in the text, Until the 2007 rule, the Department’s similar practices.’’ The commenter examples will generally not be included policy had been to exclude from further stated that requiring reporting in the revised instructions. reporting payments and other benefits for such payments for union officials, received for activities undertaken on and not employers, imposes an A. The Bona Fide Employee Reporting behalf of the union, as well as for any ‘‘unnecessary burden’’ on the officials Exception Under Section 202 other ‘‘activities other than productive and deters employees from serving as This rule effectuates the Department’s work,’’ but paid for by the employer. representatives. A national union proposal to return to its historical Thus, the instructions for the 1963 Form concurred with the Department’s view, position that union officials should not LM–30 stated that the following as expressed in the NPRM, that such report union leave and no docking payments and benefits were exempt payments do not pose a conflict of payments. 75 FR 48421. As discussed from Form LM–30 reporting: interest, and also noted that employers are not required to report such above, these payments are made by a [p]ayments and benefits received as a bona represented employer to its employees fide employee of the employer for past or payments on the Form LM–10. who are serving on behalf of the union present services, including wages, payments Another international union on labor-management relations matters or benefits received under a bona fide health, maintained that such reporting would in accordance with the parties’ welfare, pension, vacation, training or other be burdensome, unrelated to the collective bargaining agreement. First, benefit plan; and payments for periods in purpose and intent of the statute, and the historical interpretation under which such employee engaged in activities ‘‘disruptive of many well-established which such compensation was not other than productive work, if the payments labor-management relationships.’’ The for such period of time are: (a) Required by reported—to which this rule returns— commenter also stated that such law or a bona fide collective bargaining arrangements are known to the comports more readily with the agreement, or (b) made pursuant to a custom language in section 202, than the or practice under such a collective bargaining employees, who benefit along with the interpretation underlying the agreement, or (c) made pursuant to a policy, employer from this practice, and it Department’s 2007 interpretation. custom, or practice with respect to presented evidence of the burdensome Second, such reporting imposes a employment in the establishment which the nature of reporting such payments. It substantial burden on union officials on employer has adopted without regard to any explained that union officials would be matters unlikely to pose conflicts of holding by such employee of a position with required to keep track of all hours a labor organization. interest and removing this burden worked under union leave or no ensures that there will be no undue Pre-2007 Form LM–30 Instructions, docking arrangements and calculate interference with the internal workings Part A (Items 6 and 7) at (iv). See 28 FR benefits as well as wages earned, adding of labor unions and labor-management 14384 (Dec. 27, 1963). that such information would not easily relations. Third, there is no persuasive The 2007 rule narrowed the be obtained from the employer, who reason, as a matter of policy, why union exemption in the Form LM–30 may not desire to release it. Such officials must report such payments, instructions, as quoted above, by reporting, the commenter contended, while employers making such payments limiting it to situations where such may discourage employee participation are under no similar obligation. See 75 payments were made pursuant to a bona in the union, and would not disclose FR 48421–48423. fide collective bargaining agreement and conflicts of interest in that no docking totaled 250 or fewer hours during the arrangements are already known to 7 Most of the examples in the 2007 instructions filer’s fiscal year. employees in a bargaining unit either by continue to accurately reflect reporting being required by a collective bargaining requirements as articulated in this rule. Thus, the 1. Review of Comments Received agreement or being made pursuant to a following continue to accurately reflect reporting The Department received 17 custom under a collective bargaining requirements: Examples 2–15, at pp. 3–4 of the substantive comments on the issue of instructions; examples 1–2, 4–5, at p. 6 of the agreement. Further, the commenter instructions; examples 1 and 2, at p. 7 of the the union leave and no docking stated that members know that when instructions; and examples 1, 3–15, and 17, at pp. payments. Of these 17 comments, 14 stewards or other union representatives 8–9 of the instructions. Note that the NPRM had supported the removal of reporting for ‘‘administer the contract, process incorrectly stated that example 3, at p. 6 of the such payments: 12 unions, one law firm, grievances, or represent members in instructions would continue to accurately reflect reporting under this rule. Several of the FAQs are and one public policy organization. disciplinary actions,’’ they are receiving based on requirements that the Department changes Additionally, three comments opposed payment from the employer. with this rule.The following FAQs, however, the change, including two public policy A national union discussed the continue to accurately reflect reporting groups, and 225 individuals who sent in burden and disincentive that reporting requirements: 2–10, 12–26, 28, 30–37, 39, 44, 47, 49–50, 54, 56–59, 72–76, and 79–88. It should be form letters. union leave and no docking payments noted however, that some of the comments and would have on employees’ willingness FAQs, such as FAQs 49 and 73, while remaining a. Comments in Support of NPRM to serve the union. Another national accurate, were intended to illustrate issues that are The Department received 13 union emphasized that such payments, less likely to arise under the revised rule. Others, such as FAQs 1 and 77, while largely accurate, comments that provided general support received pursuant to a collective contain some statements that are based on or refer for removing union leave and no bargaining agreement, are made with to interpretations that are superseded by this rule. docking payments from the Form LM– full knowledge of the employees and

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thus reporting is not needed to provide commenters argued that the opposed to 20 minutes in the 2007 rule) transparency. The union explained that Department’s proposal was based on an and the overall reporting by 30 minutes the burden that such reporting would impermissible reading of the statute. (90 minutes in the proposed rule as impose would discourage members from A public policy organization offered opposed to 120 minutes in the 2007 representing their fellow employees in some specific observations regarding the rule). ‘‘grievances, serving on safety and effect of allowing union leave and no A public policy organization also health committees, and participating in docking to go unreported. It claimed objected to the Department’s assessment collective bargaining.’’ An international that the Department lacked authority of the burden associated with the 2007 union stressed that such payments do under the Act to excuse union officials rule, as discussed in the NPRM. It not pose conflicts of interests, as they from reporting such payments, stated, on one hand, that any burden is ‘‘primarily serve’’ the employers by suggesting that the proposed rule was not the result of the 2007 rule but has promoting ‘‘prompt and fair resolution based simply on the new existed since the enactment of the of grievances and other workplace Administration’s dissatisfaction with statute (even if the Department, in the issues so that work continues and the reporting requirement rather than a commenter’s opinion, did not always morale remains high.’’ considered view of the statute’s enforce the Form LM–30 requirements), Further, a national union stated that requirements. The comment argued that and, on the other hand, that the 2007 in determining whether or not a payments for work done for the union rule created no additional burden payment is received ‘‘as a bona fide cannot be received as a ‘‘bona fide because only ‘‘atypical financial employee,’’ a distinction must be made employee.’’ arrangements that benefit some union between payments made ‘‘by virtue’’ of Additionally, the public policy officials’’ were reportable under the a union official’s employment with the organization claimed that by eliminating rule. reporting, ‘‘de facto no-show jobs’’ and employer and payments made without Taking issue with the view that union ‘‘featherbedding’’ would be concealed regard to such relationship. In this leave and no docking payments pose no and substantial payments to union union’s experience, employees conflict of interest where required by a officials would go unreported. Such volunteer to serve, on their own collective bargaining agreement or made payments, in its view, constitute an personal time, on joint labor- pursuant to a custom under a collective improper ‘‘subsidy’’ for union activity. management, safety and health, and bargaining agreement, another public other committees, with the collective Another commenter, a public policy organization, argued that the policy organization argued that these bargaining agreement only ensuring that payments create ‘‘the definite possibility they do not lose any compensation or Department’s proposal would conceal instances of ‘‘no-show jobs,’’ and other of becoming a conflict of interest.’’ In benefits. this regard, it cited a dissenting opinion Finally, a law firm supported the fraudulent arrangements. This public policy organization also asserted that, in in Caterpillar v. UAW, 107 F.3d 1052, Department’s proposed return to its . proposing to remove union leave and no 1060 (3d Cir. 1997)(Alito, J. dissenting), historical position that union leave and docking payments from Form LM–30 where the dissenting judge stated such no docking payments are not reportable. reporting, the Department was ignoring payments create a conflict, because It urged the Department to clarify that the structure of the statute and ‘‘union negotiators * * * may agree to employers are not required to report establishing an ‘‘administrative reduced benefits for employees in such payments under section 203 of the exemption.’’ exchange for financial support for the Act. The firm asserted that such The individuals who commented by union.’’ payments should be considered to be form letter also addressed this issue and One public policy organization made as ‘‘compensation for, or by stated that no docking reporting should acknowledged that the courts have reason of, [an employee’s] service as an not be removed because most stewards determined that union leave and no 8 employee for such employer.’’ It stated receive no extra compensation for their docking are not unlawful under LMRA that without such clarification an duties, which could make them Section 302, but it nevertheless employer may feel obligated to report susceptible to ‘‘other forms of rewards.’’ contends that the courts have such payments, even though union The two public policy organizations ‘‘misconstrued’’ such provision, and officials are not required to report their stated that the burden associated with that such payments, as well as the receipt of such payments. As the the 2007 rule is significantly overstated. granting of ‘‘super-seniority’’ to union Department discusses in later sections One organization stated that the officials, do create a conflict of interest of the preamble, this rulemaking solely Department’s proposal overlooked how for the union officials, as the officials addresses reporting under section 202 of the 2007 rule mitigated burden by could exchange benefits for the the Act and that interpreting section 203 establishing a 250-hour reporting bargaining unit as a whole for benefits requirements would be beyond its threshold. One of the organizations for themselves. The comment asserted scope. argued, albeit without further support, that ‘‘any special benefit’’ creates a b. Comments in Opposition to NPRM that most union officials would not have conflict of interest, and it cites United to report their union leave or no docking States v. Phillips, 19 F.3d 1565, 1566– The three comments opposing this payments, because these payments 69 (11th Cir. 1994), to illustrate this aspect of the Department’s proposal would not meet the 250-hour threshold. point. It also contended that disclosure offered arguments in support of the The organization also argued that the furthers the public’s and government’s 2007 rule’s premise that union leave Department’s burden estimates in the ability ‘‘to determine the validity of the and no docking payments presented a 2010 NPRM demonstrated the absence financial transaction.’’ Additionally, the conflict of interest for union officials of any significant burden associated commenter rejected the idea that union and must be reported to ensure with reporting union leave and no leave and no docking provided value to appropriate transparency. Two of the docking payment, noting that the the employer, insisting, for example, Department estimated that the proposed that the payments did not increase the 8 The Department of Justice, not this Department, is responsible for interpreting and enforcing section changes would only reduce speed of handling grievances, and that, 302 of the Taft-Hartley Act. The language quoted is recordkeeping time by five minutes (15 in any event, such considerations have from section 302(c) of the statue. minutes in the proposed rule as no relevance to the statute.

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The public policy organization also receiving such payments while paternity leave. It is not relevant contended that any conflict of interest employers making such payments are whether or not the payments made to should be disclosed so members can under no similar obligation. employees are for work or other ‘‘exercise their democratic rights’’ when With regard to the language of section activities engaged in under the control choosing representatives, and that the 202, the Department believes it is best or direction of the employer, as Department will hamper members’ read to require reporting of payments employers routinely provide payments ability to exercise such rights by only when a union official is not a bona to employees as bona fide employees in establishing a Form LM–30 that will fide employee of the employer making such circumstances, which the 2007 provide ‘‘less information on the the payment. This reading departs from rule also recognized. See the definition financial activities of their the 2007 rule’s approach, which sought of ‘‘bona fide employee,’’ in the 2007 representatives.’’ Another public policy to equate payments to ‘‘bona fide Form LM–30 Instructions, which organization similarly argued that the employees’’ with payments made to exempts, in part, payments or benefits Department is proposing to reduce the union officials for ‘‘productive work’’ on received for ‘‘leave for jury duty.’’ ‘‘amount of information’’ made available the employer’s behalf. In the 2010 Further, the Department does not to members, the government, and the NPRM, the Department made the recognize any difference between union public regarding payments to union additional points, discussed below, in leave and no docking payments from officials. rejecting the position taken in the 2007 other types of leave payments that are Additionally, the public policy rule. An individual’s status as an not for ‘‘productive work,’’ assuming organization argued that the effect of the employee is based on the various factors that they are all bona fide, or good faith, union leave and no docking payments is articulated in the common law. See payments. to shift costs of union officer, employee, Nationwide Mutual Ins. v. Darden, 503 The Department disagrees with the and steward training to the employer U.S. 318 (1992). ‘‘Bona fide’’ is commenters’ conclusions that unless and to defray costs involved in the synonymous with ‘‘good faith’’ or union leave and no docking payments to union’s political activities. Thus, the ‘‘genuine,’’ i.e., without fraud or deceit.9 union representatives are reported there commenter contended that reporting is Thus, section 202(a)(1) is most naturally will be no disclosure of de facto ‘‘no- needed for the public to be made aware read to except from reporting union show jobs,’’ ‘‘featherbedding,’’ or similar of these effects. Furthermore, the leave and no docking payments to a abuses of the employment commenter insisted that the effect of the current or former employee of the relationship.10 Contrary to this NPRM’s ‘‘new definition of ‘bona fide company making the payment unless commenter’s view, such payments are employee’’’ will require the filing of made under the guise of employment, reportable on the pre-2007 Form LM–30, other LMRDA reports, including such as where payment is for a no-show the 2007 Form LM–30, and the revised ‘‘persuader reports’’ under section 203 job with the company, in an amount Form LM–30, as they are payments that of the Act. that unreasonably exceeds the value or are not received as a bona fide, i.e., good Finally, both public policy amount of the work performed, or the faith, employee. See IM entry 248.200; organization commenters disagreed with payment is made on terms inconsistent see also the NPRM at 75 FR 48422.11 the Department’s position that, as a with the parties’ negotiated agreement Nothing in the Department’s proposal matter of policy, there was no or the workplace custom and practice suggested otherwise. Regardless of the persuasive reason why union officials under the agreement. In contrast, where label the commenter might attach, e.g., should report union leave and no a payment made to an individual de facto ‘‘no-show job,’’ what is relevant docking payments while employers are working on behalf of the union by his is whether or not the payment was not required to do so pursuant to the current or past employer is sanctioned received as a bona fide employee. Form LM–10, Employer Report, and by a collective bargaining agreement or Further, as mentioned, the legitimacy of section 203 of the statute. by custom or practice of the workplace the payment is established when it is 2. Response to Comments pursuant to the collective bargaining made pursuant to the terms of a agreement, the legitimacy or ‘‘bona collective bargaining agreement. Thus, In response to the comments received, fides’’ of the payment, received as a the determination of whether or not and for the reasons stated in the NPRM result of a genuine employment such payments are made pursuant to a and discussed herein, this rule relationship, is established. collective bargaining agreement, or a effectuates the Department’s proposal to In response to the comments received, custom or practice made pursuant to a rescind the requirement in the 2007 rule the Department notes that payments that union officials report compensation received as bona fide employees may 10 The Department disagrees with the assertion and benefits they receive under include wages and other benefits that a union official remaining on an employer’s employer union leave and no docking received as compensation for service as rolls under a grant of ‘‘super-seniority’’ would have policies. In the NPRM, as noted above, had an obligation, simply upon that status, under an employee of the employer, and other the Act to report all payments received from an the Department advanced three reasons compensation, such as jury duty leave, employer. Like any union official, an official with for its proposal: (1) The historical military leave, and maternity and this status would have been required to report interpretation under which such union leave or no docking payments under the 2007 rule. However, payments made to an official for his compensation was not reported 9 See Black’s Law Dictionary (8th ed. 2004), regular production work have never been reportable comports more readily with the which defines the term as: ‘‘1. Made in good faith; without fraud or deceit. 2. sincere; genuine’’; The under the Act. Payments received for production language in section 202 than the Random House Dictionary of the English Language, work are not reportable because they are received interpretation in the 2007 rule; (2) the Unabridged (2d ed. 1987), which defines the term as a bona fide employee of the employer making the 2007 rule imposes a substantial burden as: ‘‘1. made, presented, etc. in good faith; without payment. An employee’s super-seniority status does not change this analysis. See 72 FR 36127–28. on union officials to report on matters deception or fraud * * *. 2. genuine.—syn. 1. honest, sincere, lawful, legal. 2. genuine.—ant. 11 The Department states that, as a general matter, unlikely to pose conflicts of interest and spurious, deceitful, false.’’ See also Black’s ‘‘bona union leave and no docking payments are received this burden could unduly interfere with fide operation,’’ defined as ‘‘[a] real, ongoing by union officials as bona fide employees, but it the internal workings of labor unions business’’; and ‘‘bona fides,’’ defined as ‘‘1. Good will evaluate the factual circumstance concerning and labor-management relations; and (3) faith. 2. Roman law. The standard of conduct any type of payment to a union official, on a case- expected of a reasonable person, esp. in making by-case basis, if there is any question whether or the absence of any persuasive policy contracts ands similar actions; acting without not the bona fide nature of the arrangement has reason why union officials must report fraudulent intent or malice.’’ See 75 FR 48422. been established.

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collective bargaining agreement, is not they are current or former employees of explained below, that such reporting only relevant but statutorily necessary. the employer. See IM entry 243.200 imposes a substantial burden for union ‘‘Bona fide’’ means ‘‘genuine’’ or in (based on an opinion rendered on officials on matters unlikely to pose ‘‘good faith,’’ the application of which, August 17, 1962). As stated, the bona conflicts of interest, and thus unduly in a unionized workplace, must be made fide nature of the payments is interferes with the internal workings of in part by analyzing the collective established by virtue of the collective labor unions and labor-management 12 bargaining agreement. bargaining agreement or by custom and relations. In response to those Further, the Department disagrees practice under the collective bargaining commenters who argued that the with a commenter’s suggestion that no agreement, or by policy, custom, or Department is downplaying the docking and union leave payments are practice without regard to an importance of section 202 reporting, the a type of ‘‘featherbedding’’ or ‘‘no show employee’s position within a labor Department has acknowledged jobs’’ and as such are unlawful or at organization. The Department least subject to disapproval on public emphasizes that it did not propose to repeatedly in the various LM–30 policy grounds.13 Indeed, as just exempt any payment from an employer rulemakings that section 202 is intended discussed, ‘‘no-show jobs,’’ to a union official pursuant to a to capture payments that, although not ‘‘featherbedding,’’ and similar improper collective bargaining agreement, nor did necessarily illegal, are ‘‘atypical payments are distinct from those it propose to exempt any payment from financial arrangements’’ that should payments that an employee of the an employer to a union official simply nevertheless be disclosed to union employer receives as a bona fide because the official is also a current or members and the public if they present employee of such employer. Moreover, former employee of such employer. a potential conflict of interest. Such it is longstanding Departmental policy Rather, the Department proposed and disclosure aids union democratic self- that the bona fide employee exemption here adopts the position that payments governance and assists government can only be applied to union officials if and other benefits from an employer to agencies and the public to identify a union official are exempt if such potential corruption. The Department 12 See Caterpillar, Inc. v. UAW, 107 F.3d 1052 (3d payments and other benefits are has also acknowledged that a ‘‘special Cir. 1997) (employer’s payments of salary and ‘‘received as a bona fide employee of benefits to union grievance chairpersons did not benefit’’ received by a union official violate section 302 of the LMRA). The majority such employer’’ (emphasis added). See from a represented employer should be stated that the collective bargaining agreement section 202(a)(1). disclosed if it would likely constitute an ‘‘does not immunize otherwise unlawful subjects Additionally, as stated in the NPRM actual or potential conflict of interest. but, by defining the basis for the payments, speaks and noted in the 2007 rule, union leave directly to the question posed by the statute as to At the same time, however, the and no docking payments were common whether the payments are ‘‘compensation for, or by Department is mindful that section 202 reason of * * * service as an employee.’’ Id. at at the time the LMRDA was enacted. 72 1057. FR at 36126. As set out in the NPRM, does not require general reporting of 13 The commenter may have its own distinctive these payments were not an issue of union officials’ financial information. notion of how these terms may be used, but its concern in the hearings before the In the Department’s view, union leave suggestion that union officials receiving compensation or union leave benefits for the work McClellan Committee or in any of the and no docking payments, like other they perform on labor-management matters is legislative materials relating to the payments received by a bona fide somehow improper or tainted is misplaced. Simply LMRDA, unlike payments such as for employee, reflect ordinary put, the terms ‘‘featherbedding’’ and ‘‘no show no-show work or featherbedding. 75 FR jobs’’ cannot be fairly applied to the work arrangements, mutually agreed upon by undertaken by union officials in representing the at 48422. As noted in the 2007 rule, the the employer, the union, and the union and its members in administering the legislative history does not shed light on employees, that do not present such a contract between the union and the employer. The whether Congress had a specific danger of a conflict of interest or term ‘‘featherbedding,’’ is usually associated with intention to require or not the reporting practices to keep workers on a company’s payroll, corruption. As articulated in the NPRM, even though the jobs are no longer needed because of such payments by union officials. See the Department does not view union of changes in production methods. See Robert’s 72 FR at 36126. While, as noted in the leave and no docking payments as Dictionary of Industrial Relations. As there defined, 2007 rule, legislative silence is not presenting the type of danger that the term refers to ‘‘make work for [a union’s] generally a conclusive guide to members through the limitation of production, the Congress intended to highlight through amount of work to be performed, or other make- interpreting statutory text, it is notable, work arrangements.’’ Id., 251. See also 29 U.S.C. as explained in the 2010 NPRM, at 75 reporting. Such payments, where 158(b)(6) (making it an unfair labor practice for a FR 48422, that Congress did not identify established by virtue of the collective union ‘‘to cause or attempt to cause an employer to bargaining agreement, or by custom and pay or deliver or agree to pay or deliver any money union leave or no docking payments as or other thing of value, in the nature of an exaction, requiring disclosure to union members practice under the collective bargaining for services which are not performed or not to be and the public as a matter of course. See agreement, or by policy, custom, or performed’’). ‘‘No-show jobs’’ is a term more 72 FR at 36126. Equally significant, practice without regard to an commonly associated with extortion or shakedown individual’s position within a labor by criminal elements, rather than as a means of such payments were not in any way preserving a worker’s livelihood in the face of proscribed by the AFL–CIO codes of organization, do not present the sort of technological change or a payment with the object ethics that strongly influenced the conflicts of interest presented by other of promoting constructive labor-management reporting provisions of the LMRDA. See payments to union officers and relations. Unlike ‘‘no-show jobs’’ where an individual receives pay for no work, union officials 72 FR at 36112–13. See Senate Hearings, employees. Rather, they serve the are performing the work for which they are being at 123 (statement by Professor Cox that mutual goals of employers and unions. compensated, work deemed to be in the mutual union officials who followed the AFL– They help ensure that individuals with interest of the union and the employer. Clearly, CIO Ethical Practices would have ‘‘featherbedding’’ and ‘‘no-show jobs,’’ as these first-hand knowledge of an employer’s terms are commonly understood, cannot fairly be ‘‘virtually nothing to disclose in his workplace will be able to take a position applied to union leave and no docking report to the public’’). with the union, a benefit not only to the arrangements in which union officials engaged in With regard to the second reason union and employer but also the activities that advance the collective interests of a advanced in the NPRM for removing company’s workers represented by the union. While union leave and no docking from the represented employees. Such payments featherbedding and no-show jobs are reportable on are voluntary; without the assent of both the revised Form LM–30, union leave and no Form LM–30 reporting requirements, docking payments are not. the Department continues to believe, as management and labor, the payments

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cannot be made. They are not kept arrangements. In that case, an employer are provided by mutual agreement of the secret from employees.14 and union officials were convicted, in union and the employer to facilitate Moreover, the Department is part, for violating the LMRA by ignoring labor-management relations. The persuaded that an employer’s agreement a collective bargaining agreement and payments are made to current or former to pay its employees to work for or serve granting retroactive leaves of absences, employees who have been selected by the union does not, in and of itself, have and thus pension benefits, to the the union to perform this service to the an influence on the duties or loyalties officials. The Department believes the bargaining unit, a practice that provides of the union official, since union leave court reached the right result in that benefits to both labor and management. and no docking payments are on the case. Further, the opinion in that case These payments are similar to other same terms as the payments the bona cannot be read to suggest that the benefits provided to employees fide employee would otherwise receive improper conduct there involved was at represented by the union such as if he or she continued work performed all symptomatic of how union officers payment for jury duty, military service, for and under the control of the conduct their activities on behalf of and other situations as discussed above. employer. Indeed, the members their members, nor does it affect the In response to the commenter who themselves are paid by the same reporting of union leave and no docking questioned the impact of union leave employer. Furthermore, when the union arrangements. Moreover, the result in and no docking reporting on labor- official or representative no longer that case lends support to the management relations, the Department serves in such a labor-management Department’s proposal. In Phillips, the is particularly concerned about the capacity he or she could return to payments received were by union potential consequence of requiring regular full-time production work for officials who were no longer employees reporting of payments received under the employer receiving the same of the employer at the time the benefits union leave or no docking policies (i.e., payments and benefits received while were arranged, and the retroactive leave union members will be discouraged working as a union official or was not provided for in the collective from running for union office and others representative.15 bargaining agreement. Because the from serving as stewards). The The Department disagrees with the benefits there at issue were not received Department believes that its historical view of a public policy organization that pursuant to union leave or no docking position to except union leave and no any ‘‘special benefit’’ received by a arrangements or otherwise received by docking payments from reporting is union official must be reported, or that union officials as bona fide employees consistent with the purposes of the any ‘‘special benefit’’ nurtures an of the employer, the benefits would LMRDA and with the Congressional environment in which self interest takes have to be reported under both the plan that the government avoid priority over the interests of a Department’s proposal and the 2007 unnecessary intrusion into internal bargaining unit. Relying on United rule. Moreover, the commenter’s union affairs. Cf. Wirtz v. Local 153, States v. Phillips, 19 F.3d 1565 (11th reliance on Phillips is further undercut Glass Bottle Blowers Assn., 389 U.S. Cir. 1994), the commenter suggested by that court’s recognition, citing BASF 463, 470–71 (1968). Employers have that union leave, no docking payments, Wyandotte Corporation v. Local 227, historically agreed to compensate and ‘‘special benefits’’ create not only a 791 F.2d 1046, 1049 (3d Cir. 1986), that stewards, safety and health committee hypothetical conflict of interest, but no docking payments are not unlawful representatives, and others for such reflect ‘‘in fact, how labor unions under the LMRA. See Phillips, 19 F.3d work because they see it as adding value operate.’’ As an initial matter, the at 1575. to their organizations. As explained in Department strongly disagrees with the The Department finds instructive the the 2010 NPRM, a number of states notion that financial self-interest on the discussion concerning union leave and require the establishment of joint labor- part of union officials animates how no docking payments in Caterpillar, Inc. management safety and health unions represent the interests of their v. UAW, 107 F.3d 1052,1056 (3d Cir. committees. 75 FR 48424. Having members. Additionally, the 1997), where the court recognized that employees serve on employee assistance such payments, while not compensation commenter’s reliance on Phillips is programs and wellness committees is ‘‘for hours worked in the past, certainly misplaced. also seen as a cost-effective business were ‘by reason of’ that service.’’ The The Phillips decision does not decision by many employers. Id. The court also noted that the union leave concern union leave and no docking Department concurs with those and no docking are arrangements in commenters who stated that union leave 14 which ‘‘every employee implicitly gave These payments are usually made under the and no docking arrangements increase up a small amount in current wages and terms of a collective bargaining agreement and tied the speed of grievance adjustments, and to the same rate of pay that the union official would benefits in exchange for a promise that, otherwise benefit labor-management have received under the agreement for time worked if he or she should someday be elected at his or her trade. Indeed, the court in Caterpillar relations. The Department does not view Inc. v. UAW, stated ‘‘each rank-and-file employee grievance chairperson,’’ the employer would continue to pay his or her salary. the section 202 reporting provisions as has the opportunity to vote’’ on the collective requiring the reporting of such mutually bargaining agreement, which is ratified by the Id. Thus, such payments only benefit union membership, and which provides the those union officials who are members beneficial arrangements between membership a means to hold officials receiving the of the bargaining unit, and all members employers and employees. payments accountable. The court asserted that such Regarding the Department’s of the bargaining unit have the potential payments thus differ from ‘‘bribery, extortion, and characterization of the reporting burden other corrupt practices conducted in secret.’’ See of receiving such payments if they Caterpillar 107 F.3d at 1057. Moreover, under become union officials. Further, all as ‘‘substantial,’’ the union commenters section 104 of the LMRDA, each bargaining unit represented employees benefit from the generally agreed with this assessment. member may receive and inspect a copy of the However, some public policy groups collective bargaining agreement. work of their fellow employees who 15 disagreed, with one focusing upon the The Department also notes that a union official represent them. 16 or representative who receives union leave or no In response to the commenter who 250-hour threshold. As discussed docking payments from an employer, as a bona fide asserted that union leave and no employee of the employer, does not, thereby, owe 16 The Department also disagrees with the any allegiance to such employer in conflict with docking payments constitute an comments regarding the significance of the 250- any duty to the union and its members, as the union improper ‘‘subsidy’’ to the union, the hour threshold, as it is not clear why the number appoints or elects its own representatives. Department disagrees. These payments Continued

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below, such burden is substantial, even duty steward. Sometimes the the rule, union leave and no docking with the 250-hour exemption. conversation occurs when the payments must be reported unless they As noted above, one commenter representative is on the way to the break are made pursuant to a collective criticized the Department’s description room or at lunch. Sometimes union bargaining agreement, or by custom and of the burden associated with the 2007 work occurs during a work-related practice under a collective bargaining rule, noting that the proposed rule conversation with a supervisor or agreement, or by policy, custom, or reflected only a five-minute manager and a grievance question practice without regard to an recordkeeping savings. This commenter comes up. Thus, the amount of time individual’s position within the union. overlooked that the significant number required to perform steward and similar Finally, the Department notes that a of union officials who would be functions may vary significantly from commenter suggested that the proposed excluded from filing under the proposed day to day and week to week and is change would create other potential and final rules will be saved the 120- therefore not easy to predict. For consequences affecting election law, minute burden imposed by the 2007 example, in the building and labor-management matters unrelated to rule and, for those who do file, the construction trades, with its very mobile the LMRDA, persuader activity reports reporting burden has been reduced by workforce and short-term employment under section 203 of the Act, and other 25 minutes. Further, the burden on construction projects, stewards will matters involving public policy. The estimate for the 2007 rule only tracks change from job to job, not just from commenter did not fully explain its the number of and burden upon week to week. concerns, but it appears that some of respondents (i.e., filers) to the 2007 rule. As the Department explained in the these issues involve statutes over which As such, the 2007 rule did not include NPRM, there is no persuasive policy the Department has no authority and the number of and burden on union reason why union officials must report that none of these concerns are material officials, stewards, and other union such union leave and no docking to the changes proposed by this representatives who, although not payments, and thus bear the burden of rulemaking. While the discussion of reaching the 250-hour union leave such reporting, while employers making other LMRDA provisions is obviously threshold, would need to keep track of such payments are under no similar necessary to address some issues, this such hours to determine whether or not obligation or burden. As stated in the rule only addresses the scope of filing would be required for their union NPRM, the Department has reexamined reporting required by union officers and leave or no docking payments. See 75 the policy underlying the current employees pursuant to LMRDA section FR 48424, n. 9. Moreover, the burden on requirement and has concluded that the 202. As discussed below, other respondents and non-respondents is inconsistent application is unreasonable commenters have asked the Department heightened because such payments are regarding the imposition of these to use this rulemaking to resolve issues not likely to generate a conflict of reporting requirements on union that may arise under the Act’s other interest and may discourage individuals officials but not employers. 75 FR reporting provisions. While these from serving as representatives for their 48423. The Department disagrees with comments are helpful to the Department fellow workers. the commenters’ statement that, in in identifying concerns among the Additionally, as articulated by some making this determination, the various regulated communities and of the commenters, it may prove Department was ignoring the structure informing the Department about how it difficult for union officials and and language of the statute. To the might best direct its compliance representatives to obtain information contrary, the Department’s view is resources, the Department cannot concerning benefit compensation from entirely consistent with the statute. The resolve those concerns in this rule. their employers in order to comply with specific reference in section 203 B. Coverage of Stewards and Similar the union leave and no docking excepting from reporting ‘‘payments of Union Representatives Under Section reporting required under the 2007 rule. the kind referred to in section 302(c) of 202 These practical problems faced by union the [LMRA]’’ does not require that officials, stewards, and other section 202 be read to mandate such The Department is effectuating its representatives in maintaining records reporting where such payments are proposal to return to its longstanding necessary to meet the reporting burden received by an employee.17 Indeed, policy that union stewards and similar placed on them were not fully there would appear to be no reason why volunteer union representatives are not considered in the 2007 rule. Unless the such payments, regularly made by some as a general rule covered by the Form employer has a payroll reporting system employers in the ordinary course of LM–30 reporting requirements. A union that allows the union stewards to clock conducting labor relations, would steward is responsible for informing in and out every time they have to require union officials, as the recipients employees of their rights under the perform union work, the stewards of such payments, to report their receipt collective bargaining agreement and would have to keep their own records. but not require employers making the applicable law, investigating grievances A member’s work on behalf of the union payments to report them. The filed by union members, representing is not always performed during a series commenters have provided no union members in presenting those of discrete intervals where it is easy to persuasive argument to counter this grievances to management, and determine when union work begins and observation. Additionally, the otherwise enforcing the collective ends. Sometimes, such representatives instructions, as drafted, mitigate any bargaining agreement. See generally will briefly engage in union work when concern that such payments are Herman Erickson, The Steward’s Role in a co-worker comes and speaks to the on- concealed from union members. Under the Union 29–54 (1971). As proposed in the NPRM, 75 FR of hours worked pursuant to a union leave or no 17 See LMRDA Interpretative Manual, at section 48423–25, and as articulated below, the docking arrangement affects a potential conflict of 241.600. This section states that the reporting Department rescinds the definition of interest. See Caterpillar, Inc. v. UAW at 1056., in exceptions in section 203 do not affect the reporting ‘‘labor organization employee’’ in the which the majority questions why Congress would by union officers and employees in section 202, 2007 Form LM–30 that extends Form sanction multiple employees receiving less than ‘‘where the applicable provision of section 202 does eight hours per day of no-docking payments but not provide a pertinent exception.’’ (emphasis LM–30 coverage to such union would criminalize eight hours of union leave added). Section 202, however, contains a pertinent representatives and inserts the following payments per day for a single employee. exception: the bona fide employee exception. language in the revised Form LM–30

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Instructions in Section II, Who Must 2010 NPRM that the Form LM–30 change, including a public policy group, File.18 reporting requirements should not be a legal defense foundation, as well as For purposes of the Form LM–30, an expanded to include stewards. As there 225 individuals who sent in a form individual who serves the union as a union noted, requiring ‘‘stewards’’ to file Form letter. LM–30 reports as ‘‘employees,’’ solely steward or as a similar union representative, a. Comments in Support of NPRM such as a member of a safety committee or on the basis of having received union a bargaining committee, is not considered to leave, ‘‘no docking,’’ or ‘‘lost time’’ There were 13 comments in support be an employee of the union by virtue of payments, raises policy, interpretative, of the proposal to rescind required service in such capacity. and practical concerns. reporting by union stewards. A In the final rule, the Department First, from a policy perspective, federation of labor unions stated that the added the last phrase, in italics, for imposing obligations on union stewards 2007 rule significantly increased the clarity. As explained in the NPRM, and other volunteers (e.g., those who universe of potential filers, noting individuals serving as stewards or in serve on health and safety, productivity especially the addition of stewards and other volunteer positions would be improvement, and bargaining other ‘‘on-the-job union subject to the same reporting obligations committees) intrudes in internal union representatives,’’ as employees of the as other officers and employees, if they affairs. Union stewards and other union. In the commenter’s view, this are officers pursuant to their union’s representatives perform valuable tasks imposed Form LM–30 requirements on constitution or bylaws—an atypical and extending reporting requirements to ‘‘tens of thousands of union members situation—or otherwise qualify as a them would significantly hamper union who voluntarily’’ perform union employee. The italicized words efforts to recruit and retain stewards and representation functions for fellow better convey this point than the other representatives. workers during the regular workday. language proposed in the NPRM, which Second, an examination of the text of An international union supported the had used the adverb ‘‘exclusively’’ to the relevant provisions of Title II of the Department’s view that steward qualify the statement. LMRDA suggests that Congress did not reporting is not required based on In extending the union officer and intend that stewards be considered to be legislative intent. The commenter employee reporting obligation to union union employees. While section 202 stressed the NPRM’s analysis of the stewards in the 2007 rule, the requires reporting from ‘‘every officer of structure of the LMRDA, which Department determined that a union a labor organization and every employee recognized that ‘‘stewards’’ are not steward receiving no docking or union of a labor organization (other than an included in section 202, as well as the leave payments would be considered to employee performing exclusively legislative history and intent, such as a be a labor organization employee within clerical or custodial services),’’ it does prior draft of section 202 that specified the meaning of the Form LM–30. As not require reporting from stewards. In their inclusion. The commenter stated in the preamble to that rule: ‘‘An contrast, however, Congress expressly characterized the removal of stewards individual who is paid by an employer required employer payments to reporting to be ‘‘reasonable’’ and to perform union work is an employee stewards to be reportable, pursuant to consistent with the intent of the Act, of the union if he or she is under the section 203, subject to certain and agreed that the inclusion of control of the union, while so engaged.’’ exceptions. The Department explained stewards would hinder members’ 72 FR at 36109. Stewards were deemed in the 2010 NPRM that the absence of willingness to volunteer to serve their to be ‘‘labor organization employees’’ by similar language in section 202 is a fellow workers and would be a loss to virtue of their receiving union leave or strong indication of Congressional labor-management relations. A national union stated that no docking payments from an employer. intent to exclude agents, stewards, and subjecting stewards to the reporting As stated in the 2010 NPRM and upon similar representatives from the requirements would discourage further review, the Department believes prescribed reporting requirements. employees from volunteering to serve in that the 2007 rulemaking did not Additional support for this position can that capacity. Another national union satisfactorily address or adequately be gleaned from the LMRDA’s also maintained that the 2007 rule support the expansion of the Form LM– legislative history, as explained in the greatly expanded the Form LM–30 30 reporting requirements to include NPRM. Congress, revealingly, did not reporting requirements, and stated that stewards. Rather, the rule focused on include the term ‘‘stewards’’ in stewards are members who volunteer to the ‘‘bona fide employee’’ exception of describing the regulated class ‘‘play a key role’’ in ensuring smooth section 202, which, as mentioned, was established by section 202, despite workplace operations. Thus, they revised to require the reporting of no inserting the term in other LMRDA should be ‘‘encouraged’’ to serve the docking and union leave payments. (See sections, thus indicating that those union and not ‘‘punished with onerous the discussion above concerning this members who serve as ‘‘shop stewards’’ reporting.’’ change to the ‘‘bona fide employee are of a different category than ‘‘labor An international union emphasized exception.’’) The rule also provided, organization employees.’’ When that requiring stewards to file the Form almost in passing, that stewards as well Congress wanted financial payments LM–30 would discourage members from as union officers and employees needed made to stewards to be reported, it knew serving in this important position. to report such payments, based upon how to do so. Further, according to the commenter, whether or not the official qualified as 1. Review of Comments Received stewards benefit management as well as a bona fide employee of the payer- The Department received 16 the employees and the union, and employer during the time for which comments that specifically addressed removing them from potential reporting payment was made. 72 FR 36124. this particular issue. Of these 16 obligations furthers labor-management (emphasis added). comments, 13 supported the return to relations. The commenter expressed its Upon review and reconsideration, the the historical interpretation that such view that the Department should not Department took the position in the individuals are not considered union discourage this involvement. Another international union stressed that this 18 The definition of ‘‘labor organization employees for reporting purposes under employee’’ in the NPRM included the word section 202, 12 unions, and one law change in steward coverage ‘‘will end ‘‘exclusively’’ prior to ‘‘as a union steward * * *’’ firm. Three comments opposed the considerable confusion’’ over the

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reporting requirements, which, Department insofar as union leave and The Department also concurs with the combined with the burden associated no-docking payments are concerned, but unions that stated that the 2007 rule with the form, has, in the commenter’s it argued that the NPRM went too far in increased burden on stewards, in part, experience, ‘‘deterred aspirants’’ for exempting stewards and similar through the confusion surrounding their steward and similar volunteer positions representatives from all reporting. This coverage, thus also significantly crucial for unions and the workplace. commenter stated that these union intruding in internal union affairs and A national union described stewards representatives should report all income labor-management relations. Although and similar positions as ‘‘voluntary, received directly or indirectly from the 2007 rule denied such a chilling unpaid positions’’ that are filled by employers that is not related to their effect would be created, the Department members who are not officers or representation role, such as payments has reconsidered this position. The employees of the union. Stewards received for mowing the lawn of a Department has concluded that the generally handle grievances during management representative or painting impact on those who would have to file, breaks or before or after their regular the representative’s house. coupled with the confusion and working hours, while they also often Finally, a public policy group uncertainty created by extending all of receive union leave or no docking claimed, without elaborating, that most the Form LM–30 reporting obligations to payments for union work during the stewards perform functions of union stewards and similar union employer’s time. Regardless, the officers and therefore are ‘‘officers’’ representatives—even for those that commenter contended that imposing within the meaning of the LMRDA actually had no payments or interests to coverage on such individuals would required to report pursuant to LMRDA report—invariably would dissuade some ‘‘seriously undermine cooperative labor- section 202.19 Moreover, the commenter individuals from continuing in, or later management relations and contended that the Department has no volunteering for, those positions. productivity.’’ Not only would authority to exempt from coverage of the Moreover, independent of the reporting individuals be discouraged from Act as many as 80,000 individuals who, required by the 2007 rule, union volunteering to serve, but those that do in its view, are covered by the reporting stewards and other representatives may be deterred from doing so during provisions of section 202; this perform valuable tasks and extending work hours, delaying grievance commenter also concurred with the onerous reporting requirements to them adjustments. view that stewards are union would ‘‘chill’’ future offers to serve. Some union commenters employees. Imposing reporting burdens on such acknowledged that individuals who are individuals clearly will temper the union stewards may be required to 2. Response to Comments willingness of individuals to volunteer report ‘‘in the unusual circumstances’’ The Department concurs with the to serve in such positions—a loss to the when the steward is a constitutional comments affirming the central and union, the employer, and these officer position, is a paid position in the important role that stewards and similar individuals’ fellow employees, as well union, or is an employee of the union union representatives play in the labor- as to the effective conduct of labor- under circumstances distinct from his or management context. As stated by many management relations. her status as steward. Section 202 does not refer to stewards of the commenters, stewards and similar Further, a law firm also agreed with as union officers or employees. Because union representatives differ from union the Department’s view as stated in the other sections of the LMRDA expressly NPRM that, if Congress had intended officers and employees in that they are apply to stewards, the Department that stewards would be subject to the union members who volunteer portions views their omission from section 202 reporting requirements of section 202, it of their time to union representation as an intention to exclude them from its would have indicated that intention in without additional compensation. application. As noted in the NPRM, 75 fashioning the terms of section 202 as it Additionally, unlike officers, stewards FR 48424, employers must report did under section 203. In contrast to are often appointed; in many payments to stewards pursuant to section 202, employers are required by construction unions, they are appointed section 203; and stewards are explicitly the express terms of section 203 to (or removed) by the Business Manager covered by the fiduciary responsibilities report payments made to stewards. of the local union. Stewards, safety and provision of section 501 and the health, and bargaining committee bonding provisions of section 502. The b. Comments in Opposition to NPRM members are typically created and Department acknowledges the central In response to the NPRM, OLMS empowered by the collective bargaining role that stewards play and received a form letter signed by 225 agreement, not by the union’s responsibilities that they exhibit within individuals in opposition to the constitution and by-laws. Additionally, labor organizations, as demonstrated by Department’s proposal. The letter stated the Department concurs with the the provisions of the LMRDA that apply that stewards are an ‘‘essential part of numerous commenters who confirmed to them. However, as stated, the union representation,’’ elected by the Department’s position in the NPRM statutory structure indicates that coworkers, to ‘‘responsible positions,’’ that imposing obligations on union Congress deliberately did not apply the and have the status of a ‘‘union official.’’ stewards and other volunteers may also section 202 requirements to stewards, The letter also noted that because most significantly intrude in internal union presumably because it did not want to stewards receive no compensation for affairs and labor-management relations. unduly interfere with legitimate labor- performing their duties, they may be management relations. more sensitive to other forms of reward, 19 The commenter further argued that if the Furthermore, the statute provides for suggesting to these individuals the need Department classifies stewards as ‘‘essentially disclosure of payments to stewards employees of an employer,’’ then agency fee payers for conflict-of-interest reporting by would have no union fees to pay. The commenter without imposing reporting obligations stewards. offers no further explanation for its conclusion, on the stewards themselves. Section 203 A few public policy groups also which is not self-evident. However, as the of the statute requires employers to opposed the Department’s proposal to Department has noted in a previous rule, the disclose any payment, subject to certain Department does not regulate payments by agency rescind the general reporting fee payers or reports prepared by unions showing exemptions, to any ‘‘officer, agent, shop requirement for stewards. One public how they compute costs that are allocated to agency steward, or other representative of a policy organization agreed with the fee payers. See 68 FR 58395. labor organization.’’ Thus, the concerns

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of the commenter that was troubled by view of the statutory language, and which identified several kinds of the prospect that payments to stewards several comments supported it. Rather, payments from credit institutions that other than those for no docking or union under section 202, only union did not require reporting so long as they leave would be undisclosed are employees and officers are required to were arm’s length transactions in unwarranted. submit reports. In sum, for the reasons accordance with usual business The Department disagrees with the stated in the NPRM and earlier in this practice. These payments included comment that most union stewards preamble, stewards and other interest and dividends involving savings necessarily must be considered union volunteers, as a general rule, are neither and checking accounts and certificates officers and, as such, required to file officers nor employees of a union. The of deposit and credit card arrangements. reports pursuant to section 202. The Act commenters offer no persuasive In the 2010 NPRM, the Department defines union officers as ‘‘any argument that the Department has explained that the 2007 rule reflected a constitutional officer * * * and any departed from the Act’s reporting policy choice in favor of the disclosure member of [the union’s executive board mandates. of information, even without a showing or similar governing body.’’ LMRDA, of a likely conflict of interest, and even C. Reporting of Loans and Other section 3(n). As noted earlier, a steward with the risks concerning burden upon Transactions With Credit Institutions generally is responsible for informing and intrusion into the private affairs of employees of their rights under a This rule effectuates the Department’s union officials. 75 FR 48425. In the 2010 collective bargaining agreement, proposal to amend the Form LM–30 to NPRM, the Department further investigating and presenting grievances, exempt from reporting marketplace explained that it may not have given and otherwise enforcing the collective transactions with bona fide credit sufficient weight in fashioning the 2007 bargaining agreement. These are not institutions, including loans, interest, rule to Congress’s concern that the executive responsibilities normally dividends, and payments and credit LMRDA should not unnecessarily associated with union officer positions, extended through credit card regulate unions and their officials, and as described in union constitutions and transactions, provided that they are that the burden of reporting such bylaws; rather, they draw their essence arm’s length transactions in accordance routine transactions would outweigh the from the collective bargaining with usual business practice. In so value of any additional information agreement. In unusual situations, the doing, the Department establishes the disclosed. Id. position of steward is a constitutional appropriate balance between privacy The Department explained that loans office in the union (or is authorized to and disclosure intended under the and other transactions made on market perform the functions of an officer). In LMRDA—to disclose only a union terms are usual, regular transactions, other instances, an individual, although official’s actual or potential conflicts of unrelated to the officials’ status in the serving as a steward, is an employee of interests, while keeping private bona union, and are therefore unlikely to the union under circumstances distinct fide investments ‘‘because they are not pose a conflict of interest with the from his or her status as steward. In matters of public concern.’’ Senate officials’ duties to the union. 75 FR those circumstances, such individuals, Report, at 15, reprinted in 1 Leg. 48426. In contrast to these loans and both historically and under this rule, are History, at 411. See 75 FR 48425. transactions, a loan, gift, or other benefit subject to the reporting requirements of The 2007 rule established the general obtained from a transaction other than the Form LM–30, as union officers or requirement that union officials report at arm’s length provides the union union employees. The Department notes the details of any loan received from official with a net monetary gain, and that several union commenters any business that deals with the consequently a potential motive to deal concurred with this position as well. official’s union, the union’s trust, or with a business in a way contrary to the Finally, the Department disagrees represented employer (in substantial interests of the union. Thus, the with the suggestion that the Secretary’s part). 72 FR at 36133–38. This aspect of Department concluded that the better proposal is inconsistent with the Act the rule engendered strong protests from policy is to require the reporting of and that the Department, in effect, lacks union officials and some segments of loans and other bona fide financial discretion to disregard what the the financial services industry as transactions from a credit institution commenter views as the clear command intrusive and unduly complex. Thus, only where the transaction is on other that stewards are employees of the shortly after the rule’s publication, the than market terms. Id. union when they act on the union’s Department issued guidance to reduce Furthermore, as discussed in the behalf. Until the 2007 rule, stewards the complexity in the rule and the NPRM, the proposed bona fide financial had not been required to file reports confusion about its requirements. The transaction reporting exemption under under section 202, and the 2007 rule Department issued this guidance sections 202(a)(3) and (4) would prevent was based on an interpretation of the through a series of Form LM–30 the submission of superfluous reports ambiguous statutory term ‘‘labor Frequently Asked Questions (FAQs), that would overwhelm the public with 20 organization employee.’’ 72 FR 36144. posted on the Department’s Web site, unnecessary information, thus impeding The rule did not claim that coverage of the discovery of true conflict-of-interest 20 stewards was required by the terms of http://www.dol.gov/olms/regs/compliance/ payments. 75 FR 48425. The proposal the statute, and indeed it did not place RevisedLM30_FAQ.htm. FAQs 70–73 deal with issues surrounding payments from credit also would prevent unnecessary coverage of stewards in the category of institutions. FAQ 70 stated, in part, that union burdens on union officers and revoked ‘‘administrative exceptions.’’ 72 officials do not need to report ‘‘credit card employees and avoid interference with FR 36156. transactions (including unpaid balances) and the privacy of such officials. Id. The structure of section 202, itself, interest and dividends paid on savings accounts, checking accounts or certificates of deposit if the demonstrates that Congress did not payments and transactions are based upon the union or a trust in which the union has an interest, intend that stewards be considered to be credit institution’s own criteria and are made on or a business a substantial part of which deals with union employees by virtue of service in terms unrelated to the official’s status in the labor an employer the official’s union represents or is such capacity. Again, the position of organization.’’ FAQs 71 and 72 outlined the actively seeking to represent. Finally, FAQ 73 obligations of union officials regarding home loans, affirmed that the de minimis exemption applies to ‘steward’ is not enumerated in section which clarified that such loans must be reported if transactions, interests, and dividends from a 202 as it is in other provisions of the received from a trust in which the official’s union financial institution, even if it had dealings with the statute. No commenter challenged this is interested, a business that deals with the official’s official’s union.

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Additionally, the Department there criteria and are made on terms unrelated loans made to union officials on such explained, at 75 FR 48426, that in the to the official’s status in the labor terms. 2007 rule the Department excepted from organization. b. Comments Opposing the Proposed reporting under section 202(a)(6) such 1. Review of Comments Submitted Section 202(a)(3) and (4) Exemption bona fide financial transactions with a Concerning the Proposed Changes to the Regarding Reporting of Loans From credit institution because of the burden Reporting of Loans Under LMRDA associated with reporting what ‘‘are Bona Fide Credit Institutions Sections 202(a)(3) and (4) among the most common financial The two public policy organizations transactions undertaken by The Department received 14 disagreed with the Department’s individuals.’’ 72 FR 36118. The NPRM comments about the proposed proposal, arguing that such loans should stated the Department’s belief that this exemption regarding the reporting of be disclosed by union officials on the reasoning also must apply to the loans. Of these 14 comments, two were Form LM–30. One of these organizations reporting of marketplace loan from public policy organizations, 11 stated that ‘‘the fear that seemingly transactions under sections 202(a)(3) were from national/international private mortgage information will and (4). 75 FR 48426. unions, and one comment was from a somehow become public due to the The NPRM explained that the federation of international labor unions. reporting requirements of the Form LM– proposed revision was limited to bona a. Comments in Support of the Proposed 30 is misplaced,’’ in that mortgages are fide loans from legitimate credit Exemption Regarding Reporting of public documents that can be obtained institutions. 75 FR 48426. The Loans from a state recorder’s office or, in some Department has not changed other cases, accessed online. The same longstanding interpretations of section Comments submitted by all eleven national/international unions and the commenter addressed the Department’s 202 that require union officers and statement in its proposal, 75 FR 48425, employees to report other payments federation of international labor unions supported the Department’s proposal to that its revised interpretation ‘‘would from vendors, service providers, credit prevent the submission of superfluous institutions, and other businesses that exempt the reporting of bona fide market rate loans from credit reports that would overwhelm the deal in substantial part with the public with unnecessary information,’’ represented employer or in any part institutions. There comments expressed many common themes, including union expressing its view that this concern is with either the official’s union or any misplaced due to the technological trust in which the official’s union is officials’ right to privacy in personal, routine financial matters unrelated to developments of the 21st century. It interested or loans received from characterized the Department’s view as employers or businesses that are not their union role, the undue burden 21 associated with reporting bona fide meaning that ‘‘more information credit institutions. Id. As explained actually means less useful information.’’ below, the Department has determined arm’s length transactions, and the absence of any link between these The commenter added that OLMS to adopt, without change, the position computer systems could easily handle set forth in the NPRM regarding bona transactions and conflict-of-interest all Form LM–30 reports, and allow fide financial transactions with credit concerns. cross-checking other forms, and stated institutions on Part B of the revised Three commenters agreed that the that the public can view Form LM–30 Form LM–30: Department’s proposal achieves a Bona fide loans. Do not report bona correct balance between the privacy of data on http://www.unionreports.gov to fide loans, including mortgages, union officers and employees and the ‘‘find whatever information they seek.’’ received from national or state banks, Act’s goal of disclosing actual or Another public policy organization credit unions, savings or loan potential conflicts of interest. Another commented that the Department’s associations, insurance companies, or commenter stated that the requirements proposed administrative exemption for other bona fide credit institutions, if the established by the 2007 rule (apparently bona fide loans with terms no more loans are based upon the credit as distinct from the interpretation in the favorable than those available to the institution’s own criteria and made on FAQs) ‘‘intru[des] into [union officials’] public ‘‘misses the point of disclosure terms unrelated to the official’s status in private affairs, and would produce and the need for it.’’ The commenter the labor organization. Additionally, do information which is irrelevant to their added that, while the loan terms may not report other marketplace union duties and the purposes of the not be more favorable than those transactions with such bona fide credit LMRDA.’’ As expressed by another available to the public, there is no institutions, such as credit card commenter, the 2007 rule’s ‘‘broad ‘‘guarantee that the loan was given to a transactions (including unpaid requirement does not comport with the qualified individual union official (e.g., balances) and interest and dividends Act’s intent to require only the the union official may have a very low paid on savings accounts, checking disclosure of transactions in which credit score or income insufficient to accounts or certificates of deposit if the there is actual or potential conflict of make the payments).’’ The commenter payments and transactions are based interest with an official’s duties to his/ also stated that ‘‘union officers have upon the credit institution’s own her union and delves into personal been known to have their loans matters that are of absolutely no public completely forgiven or paid off by 21 As stated in the 2010 NPRM: concern.’’ another source,’’ and added, ‘‘* * * if The proposed modification does not relax the Another commenter noted a parallel there is no disclosure of the loan, then obligation to report on loans or other financial between the Department’s proposal and no one will know that a loan should transactions (including credit card arrangements the approach used in other ‘‘ethics perhaps not have been given or even and interest-bearing accounts) where a union official receives terms more favorable than the regimes,’’ such as the financial that a possibly questionable loan market allows, where for example a union official disclosure rules established by each exists.’’ Additionally, this commenter receives a loan because of the official’s status body of Congress. It explained that referenced a media report concerning a despite a credit history that would normally Congress does not require its members public official’s ‘‘special loan’’ prevent an individual from receiving credit, or payments on the loan are extended or forgiven to report on loans that are made on arrangements with a particular mortgage because of preferential treatment as a union official. terms generally available to the public, company, asserting that just as voters 75 FR 48426, n. 11. and that it made sense to treat similarly benefit from such disclosure, union

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members would benefit from the by Congress to not discourage any arm’s loans, interest, and dividends earned disclosure of such loans. length business transactions, which are during the regular course of business not ‘‘questionable in nature,’’ illegal, or with a credit institution, because of the c. Other Comments pose actual or potential conflicts of burden associated with reporting what Although the Department did not interests. This, according to the ‘‘are among the most common financial propose to eliminate the requirement commenter, would also impose a transactions undertaken by that a union official must report loans significant burden on union officials individuals.’’ 72 FR 36118. The from a represented employer that is a whose unions represent or seek to Department believes that this reasoning credit institution, such as a bank whose represent employees of credit also must apply to the reporting of employees are represented by the institutions. The commenter also stated marketplace loan transactions under official’s union, some commenters that bona fide loans and other bona fide sections 202(a)(3) and (4). submitted comments requesting the financial transactions between a credit The Department notes that union elimination of this requirement. Such a institution employer and a union commenters agreed with the approach request is beyond the scope of this rule, official are not reportable by the credit proposed in the 2010 NPRM, as well as but the Department, for completeness, institution employer under section 203, the supporting rationale the Department discusses these comments below. citing the LMRA section 302(c)(3) offered. These commenters agreed that A federation of international labor exemption, 29 U.S.C. 186(c)(3). The any benefit associated with disclosing unions urged the Department to create commenter argues that, since credit arm’s length transactions was heavily a reporting exemption, under section institution employers are not required to outweighed by the burden, loss of 202(a)(5) of the LMRDA, for bona fide report such loans and transactions on privacy, and limited utility that such loans and other bona fide financial the Form LM–10 (Employer Report), disclosure would entail. transactions between a union official then union officials should not be Only two policy organizations and a credit institution employer whose required to report such loans and submitted comments in opposition to employees the official’s union transactions on Form LM–30. the proposal. One asserted that the represents or is actively seeking to Department had overstated the impact represent. An international union 1. Response to Comments that the rule would have on an official’s concurred with this request. These Upon consideration of the comments privacy. In this regard, it asserted that unions argued that by not applying the received on this issue, the Department some of the same personal financial data same arm’s length exemption, as has determined to revise the reporting that would be reported under the terms proposed generally in the 2010 NPRM,22 obligation for union officials by of the 2007 rule, such as mortgage to transactions involving credit adopting an exemption to the reporting information, may already be accessible institutions whose employees are of bona fide loans and other financial to the public. However, the Department represented by an official’s union, the transactions made on market terms with notes in response to this comment that Department would be ignoring the credit institutions. In the Department’s such information is not made public in regular course of business exemption in view, loans made on market terms are a reporting regime intended to disclose section 202(a)(5), which they assert of little or no interest to union members, actual or potential conflicts of interest, relieves any reporting on any ‘‘regular yet they disclose to members and the as would be the case with the Form LM– course of business’’ transactions.23 general public matters about which 30. That some mortgage information The commenter asserted that the union officials, no less than other may be available publicly by people section 202(a)(5) marketplace individuals, have a legitimate with easy access to that data does not transactions exemption should be expectation of privacy.24 But for the excuse the intrusion that results from applied to bona fide financial Department’s guidance and the position making public what most people still transactions with credit institutions. adopted in today’s rule, a union official consider to be private financial The commenter argued that the would have to report each mortgage or information. Requiring a union official Department should give effect to what it other bank loan received from any credit to collect and, in effect, publish all such sees as the same statutory interests institution that deals with his union, a information in the Form LM–30 involving routine transactions that section 3(l) trust, or, in substantial part, certainly magnifies the intrusion. would otherwise be reportable under with the represented employer. In the Further, that certain financial other provisions of section 202. The Department’s view, the burden information can already be accessed by commenter relied, in part, on its general associated with such requirement would the public does not justify requiring that reading of the Act’s legislative history, far outweigh the value of any such information be reported on Form which it reads to express an intention information disclosed. In the 2007 rule, LM–30. Moreover, as discussed, the the Department excepted from reporting reporting of routine bona fide loans and 22 Union officials must report, pursuant to section under section 202(a)(6) arm’s length similar transactions does not advance 202(a)(5), ‘‘any direct or indirect business transaction or arrangement between him or his the disclosure purposes served by spouse or minor child and any employer whose 24 As discussed in the text, the proposed section 202 and therefore the burden employees his organization represents or is actively modification does not relax the obligation to report associated with such reporting is not seeking to represent, except work performed and on loans or other financial transactions (including warranted. payments and benefits received as a bona fide credit card arrangements and interest-bearing One commenter stated that the employee of such employer and except purchases accounts) where a union official receives terms and sales of goods or services in the regular course more favorable than the market allows, where for Department was mistaken in its view of business at prices generally available to any example a union official receives a loan because of that requiring bona fide loan-type employee of such employer.’’ the official’s status despite a credit history that information to be reported on the Form 23 The commenter notes correctly that the would normally prevent an individual from LM–30 could impede the utility of the Department did not address its section 202(a)(5) receiving credit, or payments on the loan are argument in the 2010 NPRM. The Department there extended or forgiven because of preferential form to union members and the public. noted that any loans from an employer represented treatment as a union official. Moreover, loans The commenter pointed out that the by the official’s union (or whose employees it received from employers or businesses that are not Department’s Form LM–30 Web site actively seeks to represent) must be reported financial institutions will have to be reported as employs technology allowing data to be pursuant to section 202(a)(2) of the LMRDA— will any loans on other than market terms from including bona fide loans from a credit institution employers or businesses that have a relationship effectively managed and searched. The employer. See 75 FR 48426., n. 11. with the official’s union. Department does not disagree with this

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characterization of the efficiency of the are represented employers. Because the represented and potentially represented OLMS Web site, but this observation is Department did not propose to employers, the union official’s union, or not relevant to the issue presented in eliminate this requirement, no extensive trusts in which the official’s union is the NPRM, as the Form LM–30 does not discussion is required. As noted in the interested. In each case, the reporting require general financial disclosure. NPRM, the Department acknowledged obligation is triggered by the particular Rather, its purpose is to highlight actual that it was not changing this aspect of relationship between an official’s union or potential conflicts of interest the 2007 rule. Further, the Department and the entity from which the official involving union officials. Thus, notes that, historically, the Department receives a payment or in which the collecting large amounts of information has held that any loan to an official from official holds an interest. with little or no utility can obscure an employer whose employees are By contrast, section 202(a)(6) does not other information concerning possible represented by the official’s union are specify any relationship between an or actual conflicts of interest, as each reportable pursuant to 202(a)(2), entity and an official’s union, nor does report submitted must be searched without any statutory or other it express when payments must be separately in order to find information exceptions (other than the de minimis reported. Rather, it more broadly relevant to actual or potential conflicts threshold). See IM sections 244.100 and requires union officials to report any of interest. Intermixing meaningful 244.120; see also the pre-2007 Form payment of money or other thing of reports with thousands of innocuous LM–30 Instructions, Part A, exemption value from ‘‘any employer or any person reports impedes easy review of the (iii).25 The 2007 rule upheld this who acts as a labor relations consultant reports that disclose actual or potential principle, and the Department stated in to an employer’’ (except payments of the conflicts. Eliminating superfluous the preamble to the 2010 NPRM that a kinds referred to in section 302(c) of the information removes an unnecessary union official would need to report any Labor Management Relations Act of burden on union officials and promotes loans from an employer represented by 1947, as amended (LMRA)). As noted in the objective of section 202 to disclose the official’s union (or whose employees the NPRM and discussed in the 2007 actual and potential conflicts of it actively seeks to represent).’’ See 75 rule, the Department has long interests. FR at 48426 n. 11. Additionally, the interpreted section 202(a)(6) as a ‘‘catch- The commenters expressed Department notes that the appearance of all’’ that captures conflict-of-interest understandable concern that any loans a conflict of interest and any temptation payments from employers not otherwise or other transactions with terms to curry favor by offering what appears reportable in the previous five preferential to union officials be to be an arm’s length loan or related subsections of 202. Thus, LMRDA reported. The Department’s proposal, transaction on favored terms is much Interpretative Manual section 248.005 however, ensures that any such loans greater where the official’s union states, in part: ‘‘[Section] 202(a)(6) is will be disclosed. Only loans and other represents (or seeks to represent) the designed for those situations which transactions that reflect market rates are institution’s employees than where a pose conflict-of-interest problems which excepted from reporting. These loan is made by an institution that has are not covered in the previous five transactions do not carry with them any a more attenuated relationship with the sections of 202.’’ 72 FR at 36129. indicia of a conflict, actual or apparent, official’s union. Further, the 2007 rule made clear that between the union official and his or section 202(a)(6) can be read to her duty to the union. As discussed in D. Scope of Reporting Requirements encompass disclosure of any employer the 2010 NPRM and expressly stated in Under Section 202(a)(6) payment that could present a financial the Form LM–30 instructions, In the NPRM, the Department conflict of interest for the union official. transactions not ‘‘based upon the credit proposed to narrow the scope of Id. The Department did not propose to institution’s own criteria,’’ according to reporting required under section change this requirement. ‘‘usual business practice,’’ or ‘‘made on 202(a)(6) with respect to (1) Payments After a review of the comments terms related to the official’s status in from business competitors to the received, the Department retains the the labor organization’’ must be reported employer whose employees the union general requirement, as earlier on the revised Form LM–30. For official’s union represents or actively proposed, that officials report payments example, if a loan is given to a union seeks to represent; (2) payments from employers and labor relations official with a low credit score, if a loan received from trusts; and (3) payments consultants from whom a payment is extended or forgiven, if the loan does from unions. In this final rule, the would create an actual or potential not reflect market terms, including Department has adopted its proposals conflict between the filer’s personal usual fees, or if it otherwise evinces on these points. financial interests and the interests of preferential treatment based upon the As explained in the NPRM, sections the filer’s labor organization (or the officials’ union status, it must be 202(a)(1)–(5) of the LMRDA establish filer’s duties to the labor organization). reported. Any relaxation of the loan’s conflict-of-interest reporting As proposed, the Department included terms, repayment requirements, or requirements concerning payments a non-exhaustive list in the instructions forgiveness must also be reported if received by union officers and for the revised Form LM–30 of examples based on preferential treatment because employees from two sets of entities: (1) of such actual or potential conflicts of of the official’s union status. Employers that a union represents or is interest. These examples included Furthermore, loans received from actively seeking to represent; and (2) payments from business competitors of employers or businesses that are not businesses, such as vendors and service the employer whose employees the credit institutions must be reported. The providers, that buy or sell to the union official’s union represents or same considerations apply to other whose employees the union is actively transactions with credit institutions, 25 The exemption (iii) of Part A of the pre-2007 seeking to represent. Further, to ensure including credit cards and interest- Form LM–30 Instructions exempts transactions that only actual or potential conflict-of- bearing accounts. ‘‘involving purchases and sales of goods and interest payments are reported, the Finally, as noted, two commenters services in the regular course of business at prices Department has qualified this generally available to any employee of the requested the Department to exempt employer. This does not apply to transactions requirement so that a union official, as from reporting loans and related involving stocks, bonds, securities, or loans, for a general rule, must report such transactions from credit institutions that example.’’ financial interests only if the official is

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involved with the union’s organizing, child) from any employer or labor paragraphs of section 202(a) addresses collective bargaining, or contract relations consultant to an employer are payments by particular employers or administration activities or possesses payments for the following purposes: (1) businesses that have dealings with the significant authority or influence over Not to organize employees; (2) to official’s labor organization (202(a)(4)) such activities. As explained in the influence employees in any way with or an employer whose employees are NPRM, an official will be required to respect to their rights to organize; (3) to represented by the official’s union or the report such payments where he or she take any action with respect to the union actively seeks to represent, possesses such authority or influence by status of employees or others as (202(a)(1), (2), (3), (5)). The actual or virtue of his or her position, even if members of a labor organization; (4) to potential conflict of interest for such authority has not been exercised. take any action with respect to payments from and interests in such This rule also effectuates the proposal to bargaining or dealing with employers entities is evident. retain the requirement that union whose employees the filer’s union The literal language of section officials must report payments received represents or whose employees the 202(a)(6), if applied as the commenters from an employer that is a not-for-profit union is actively seeking to represent; advocate, would render superfluous the organization that receives or is actively and (5) to influence the outcome of an limiting language in the other and directly soliciting (other than by internal union election. 72 FR at 36128, subsections, as it would potentially mass mail, telephone bank, or mass 36173. These payments, per se, create require reporting from any entity that is media) money, donations, or an actual or potential conflict between an employer, regardless of whether or contributions, from the official’s labor the filer’s financial interests and his or not the entity had any connection with organization. her duties to the labor organization. the union and its represented The Department is revising, as The Department received 15 employers. Given the absurdity of such proposed, the reporting requirements comments on the scope of section construction, the Department, mindful insofar as payments from certain trusts 202(a)(6), with 12 supporting all of the of the statute’s language and legislative and labor unions pursuant to section changes,26 one supporting the changes history, has interpreted section 202(a)(6) 202(a)(6) are concerned. In contrast to in part and opposing in part, and two as a ‘‘catch-all’’ provision, intended by the 2007 rule, which required payments comments opposing all of the proposed Congress to capture various payments from trusts to be reported, the modifications to this aspect of the that would pose apparent conflicts of Department proposed to return to its NPRM. The comments on specific interest, even though outside the literal historical position that such payments aspects of the rule are addressed terms of subsections (a)(1)–(5). The are not reportable because they do not below.27 As a preliminary matter, Department has never interpreted this pose an apparent or actual conflict of however, the Department believes it section in the way these two interest between the official’s personal important to address the view expressed commenters apparently would prefer— financial interests and his duty to the by two commenters that none of the as a mandate to require a union official union and its members. As explained in proposed changes to reporting under to report on his or her financial interests the 2010 NPRM and based upon the section 202(a)(6) are justified. from virtually all employers. The 2007 considered analysis in the Department’s In essence, these commenters read rule outlines this longstanding approach 1967 opinion on this issue, the section 202(a)(6) as a mandate to require by the Department, 72 FR at 36128–30, Department believed that these a union official to report on his or her and the Department has continued the payments pose ‘‘no conflict with which financial interests with virtually all same basic approach in this rulemaking, Congress was concerned.’’ 75 FR 48428. employers. The Department disagrees. It see 75 FR48426–29, 48434–35. As Further, the Department believes, as remains of the view that its recognized in the 2007 rule and the stated in the NPRM, that the better interpretation is sound as a matter of 2010 NPRM, the Secretary must reading of section 202(a)(6) of the law and policy. Granted, the terms of interpret the statute to clarify the LMRDA is that labor unions and trusts section 202(a)(6) are expansive, intended reach of section 202(a)(6). 72 are not within the universe of requiring a union official to report ‘‘any FR 36139–41; 75 FR 48429–30. Here, in ‘‘employers’’ from which union officials payment of money or other thing of contrast to the 2007 rule, the Secretary, should report payments, as both entities value * * * which he or his spouse or in exercising her discretion to interpret are treated separately from other minor child received directly or that section, has concluded that it does ‘‘employers’’ under the Act. In drafting indirectly from any employer.’’ In not require union officials to report on the LMRDA reporting and disclosure contrast to the breadth of section certain payments received from requirements, Congress delineated 202(a)(6), however, each of the other employers that compete with separate requirements for these discrete represented employers, section 3(l) statutory actors (unions and trusts), and 26 Seven of these commenters supported the trusts, and labor organizations. reporting of labor organization proposed changes to the 2007 rule but also opposed other portions and thus suggested additional 1. Obligation To Report Payments From disbursements is set forth in section 201 modifications to the form. Business Competitors of the Employer of the statute, not section 202. 27 Two commenters suggested that the Whose Employees the Union Official’s Moreover, the Department maintains Department should further revise the section Union Represents or Whose Employees that this reading of the statute better 202(a)(6) requirements to limit reportable interests solely to those payments made by employers that the Union Is Actively Seeking to implements the labor union and labor- would impact the labor-management relationship Represent management reporting requirements of between a union and a represented employer. Thus, the LMRDA. for example, they would exempt from reporting As explained in the 2010 NPRM and Finally, the Department also retains, payments to a union official from a charity to which reiterated here, the Department has as proposed, the requirement that union the official’s union contributes. Because the historically viewed subsection 202(a)(6) Department did not propose such change, the officials must report five types of comments are outside the scope of the rule. The differently than the other subsections of payments received from an employer, Department briefly notes, however, that the section 202(a). The relationships regardless of the relationship the suggestion is at odds with the general ‘‘catch-all’’ addressed in 202(a)(6), such as that employer has with the filer’s union. purpose of section 202(a)(6), would leave between a union official and a undisclosed conflicts of interest, and is not These reportable payments to a union compelled by the language of section 202(a)(6) or competitor employer to a represented official (or the official’s spouse or minor the Act’s structure. employer, are further removed from the

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activities of the union than those from the technology company.29 Under triggered by objective circumstances involving the represented employer and this rule, the individual would not have that create an actual or potential the other business relationships to report these payments. In contrast, conflict, or an appearance of one, and addressed in the first five subsections of assume that an individual employed by then, upon its disclosure, allows section 202. In particular, the a union as an organizer also works for members and the public to assess the competitor employer does not have a a technology company that is a implications. As discussed in section current and ongoing relationship with competitor of a company whose V.C. of the preamble, the asserted the union; indeed, neither is actively employees are represented by the union. burden associated with this aspect of seeking such a relationship (if it did, Under both this rule and the 2007 rule, the rule is overstated. As the sections 202(a)(1), (2), and (5) would the individual would have to file a Form Department explains in that section, the likely apply). Further, any payment LM–30 to report gifts, gratuities, or other rule allows most filers to compile the made by a competitor or other employer non-exempt payments he or she receives necessary information through a to not organize or otherwise affect the from the technology company. relatively easy three-step process. union official’s responsibilities with the Multiple commenters offered support Two public interest organizations union is per se reportable under Part C for the proposal. One national/ opposed the change. The first stated that of the instructions. Moreover, the international union supports the change restricting reporting to officials involved Department believes that in the outside as it reduces burden on officials and in organizing, collective bargaining, or chance that there could be a conflict focuses reporting on actual or potential contract administration is contrary to concerning a union official and a conflict-of-interest scenarios. With the statutory text and the views competitor employer, the Department’s respect to burden, the commenter Congress expressed in the legislative ‘‘significant authority or influence’’ test, stressed the ‘‘layers’’ of subsidiaries and history. The commenter maintained that as shown in italics and discussed below, affiliates that must be researched to this change would remove a ‘‘significant would ensure its reporting. identify the represented employer’s amount of disclosure by employers and competitors in order to determine if union officials’’ who do not engage in The instructions to the Form LM–30, reporting is required. Moreover, the these activities. Another public interest as revised in this rule, provide: commenter contended that this organization similarly questioned why Complete Part C if you, your spouse, or information may not be publicly the Department would limit reporting to your minor child received, directly or available.30 situations ‘‘where an official is involved indirectly, any payment of money or other One international union supported with organizing, collective bargaining,’’ thing of value (including reimbursed the change, but also suggested that it or so forth, as proposed. The commenter expenses) from any employer (other than a should be narrowed further to require argued that this limitation would run Represented Employer under Part A or reporting of a ‘‘gift’’ only when an counter to the purposes of the Form Business covered under Part B above) from official has ‘‘actual knowledge’’ of an LM–30, which is to disclose conflicts of whom a payment would create an actual or employer being a competitor to a interest, and it does not accurately potential conflict between these 28 financial represented employer. It explained that interests and the interest of your labor reflect the administration of most organization or your duties to your labor such a change would reduce a filer’s unions, in which any payments to any organization. Such employers include, but burden because it would be unnecessary official, regardless of the formal title, are not limited to, an employer in to ‘‘research potentially complex chains could ‘‘easily’’ influence all the others. competition with an employer whose of business ownerships through webs of The commenter stated that, ‘‘any employees your labor organization represents subsidiaries and affiliates.’’ The representative in any capacity should be or whose employees your union is actively Department does not concur with this required to report relevant payments seeking to represent, if you are involved with suggestion, as determining if an official from any employer.’’ the organizing, collective bargaining, or had actual knowledge would hinge The Department disagrees with the contract administration activities or possess reporting on a subjective assessment. contention that this change to section significant authority or influence over such Rather, a reporting obligation is 202(a)(6) reporting is not based in the activities. You are deemed to have such statute or is contrary to the legislative authority and influence if you possess 29 It should be noted that such employee would history. To the contrary, the Department authority by virtue of your position, even if not be required to report his regular wages from the has consistently held that section you did not become involved in these employer. LMRDA, section 202(a)(6), which 202(a)(6) is a ‘‘catch-all’’ for conflicts of activities. exempts payments of the kinds referred to in LMRA section 302(c)(1), excepts these payments from interests not otherwise captured in the An example illustrates the difference reporting. A public policy organization, which previous subsections of section 202. The between the 2007 Form LM–30 and the offered general opposition to the proposed changes Department’s interpretation is narrower reporting requirement to the reporting of payments from competitor consistent with section 202(a)(6), its implemented here. First, assume that an employers, noted that the NPRM indicated that the wages paid by the technology company would be legislative history, and the purposes individual employed by a union to reportable under the 2007 rule, and that this served by the Act’s disclosure handle computer problems also works mistake cast doubt on the entire NPRM. The text requirements. The Department’s for a technology company that is a has been clarified to make plain that regular wage proposal, as adopted in the final rule, competitor of a company whose payments are not to be reported. provides clear examples to the public as employees are represented by the union. 30 The concerns of the commenters pertaining to the level of ‘‘research’’ that must be conducted in to what circumstances trigger reporting, Under the 2007 rule, the individual order to determine what payments are reportable without overburdening union officers would have to file a Form LM–30 to are unsubstantiated and exaggerated. As discussed and employees. It triggers reporting on report gifts, gratuities, or other non- in greater detail in the top-down reporting section the core, essential functions of a labor exempt payments he or she receives of this preamble, III.E., the scope of the official’s inquiry is limited to considering non-exempt, organization: organizing, collective atypical payments received from an employer and bargaining, and contract administration. 28 The NPRM stated, ‘‘between your financial only then must the official look at the relationship In this regard, the Department notes, interests * * *’’ The Department modified this that the employer has with the official’s union. contrary to the commenters’ apparent phrase to read ‘‘between these financial interests,’’ Nevertheless, by limiting this aspect of reporting to so filers are aware that they must look at the officials that possess actual authority or influence suggestion, that the Congressional goal payments and interests of their spouse and minor over subordinate affiliates, the rule should in enacting section 202 was not to children as well as their own. ameliorate concerns among some filers. require wholesale ‘‘disclosure by

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employers and union officials,’’ but, will provide compliance assistance to Congress did not intend union trusts to rather, conflict-of-interest disclosure; filers with questions about specific be treated as employers and other the revisions contained in this rule circumstances. businesses under section 202(a)(6). An effectuate this purpose. international union commented that 2. Obligation To Report Payments The restriction of reporting to those reporting of expense reimbursements for Received From Trusts with influence over organizing and serving as a trustee of a union benefit similar areas applies only to the broad In the 2010 NPRM, the Department fund had never been required, ‘‘catch-all’’ provision of section proposed to return to its longstanding expressing support for the Department’s 202(a)(6), and not to the other interpretation that union officials are proposal to return to the former provisions of section 202. Indeed, not required to report payments practice. pursuant to these other provisions, the received from trusts in which their Further, one international union Department will continue to require unions have an interest. These trusts are stated that the removal of such reporting reporting by union officers and non- defined by section 3(l) of the LMRDA as would eliminate an inconsistency exempt employees of payments from a ‘‘trust or other fund or organization (1) between what union trustees would represented employers and the That was created or established by a report and management trustees were enumerated businesses with close labor organization, or one or more of the not required to report. An international relationships with the officials’ union.31 trustees or one or more members of the union stressed that reimbursements to However, the Department does not governing body of which is selected or union trustees should not be reportable. interpret section 202(a)(6) in the same appointed by a labor organization, and Another international union offered two manner, as a competitor employer is (2) a primary purpose of which is to technical corrections to the revised further removed in relationship to the provide benefits for the members of Form LM–30 Instructions, in Part C, to union. The Department notes, though, such labor organization or their make explicit that payments from trusts that Part C of Form LM–30 still requires beneficiaries.’’ See Form LM–30 are not reportable. The Department will the reporting of any payment to any Instructions, p. 13. address these suggestions later in the covered union officer or employee, if As explained in the NPRM, this preamble section on the revised form the payment constitutes a per se interpretation is reflected in a 1967 and instructions. See Part IV. reportable activity, pursuant to the opinion signed by the head of OLMS’s Two commenters opposed the Revised Form LM–30 Instructions, Part predecessor agency and the Department’s proposal to eliminate the C: Other Employer or Labor Relations Department’s Solicitor. As there stated: reporting of payments made by section 3(l) trusts to union officials.32 A public Consultant (reportable per se activities). Congress was concerned with This position is consistent with the arrangements with the primary employer, interest organization asserted that the Department’s longstanding approach that is, the one whose employees the union Department offered ‘‘no good reason’’ treating the broad section 202(a)(6) represents or seeks to represent, which might for the return to its ‘‘historical language as a ‘‘catch-all’’ to capture impair the union officer’s loyalty as a position’’; that the Department had likely conflict-of-interest payments not representative of that organization [vis-a`-vis] ‘‘found no problem that will be solved’’ otherwise captured by sections the employer. Even assuming that a trust by the modification; and that the 202(a)(1)–(5). fund could successfully be characterized as proposal was ‘‘primarily based on a very The Department also notes that a a primary employer, which we doubt, we fail old internal’’ opinion. This commenter, to perceive the existence of a conflict where national union objected to the a union official received payments from a however, provided no basis for rejecting Department’s general ‘‘catch-all’’ trust fund for which he also works, even if the Department’s rationale, nor did it requirement, retained in the NPRM, that this arrangement is approved by employer offer any rationale as support for the a union official must report any representatives on the trust. The employer position taken in the 2007 rule. In the payment from an employer that creates representatives are acting in their role as 2010 NPRM, the Department cited the an actual or potential conflict of trustees and thus no conflict-of-interest Kleiler-Donahue letter to emphasize the interest. The commenter described the situation with which Congress was longstanding nature of the position, as concerned arises. requirement as confusing and too broad. well as to explain the letter’s reasoning. The commenter objected that the Id., p. 4–5. As the letter notes, 75 FR 48428. To reiterate the point Department’s proposal would require payments from trusts to union officers made in the NPRM, the preamble to the reporting of transactions that will have and employees—wages to employees or 2007 rule merely cited the letter without no effect on labor relations or union reimbursed expenses—are payments refuting it, and the Department now administration. In response to this reported elsewhere and, more returns to the position and rationale comment, the Department cannot importantly, pose ‘‘no conflict with stated in the letter. 72 FR 36154. delineate every conceivable conflict-of- which Congress was concerned.’’ Payments received from a section 3(l) interest scenario, nor could Congress, Kleiler-Donahue Ltr., p. 5. trust do not establish a conflict of which is why it established section A federation of unions, eight national/ interest, as the interests of the trust and 202(a)(6). Generally, entities from which international unions, and one law firm union, or an official’s duties to the payments are reportable are described in offered support for the Department’s union, do not diverge. Indeed, a section the instructions, and the Department proposal regarding payments from trusts 3(l) trust must exist for the primary and its stated rationale in the NPRM. In 31 The Department notes that, in interpreting the particular, these commenters stressed 32 These organizations also asserted that the scope of ‘‘top-down’’ reporting, the Department is that payments from section 3(l) trusts to Department’s proposal as it applies to the only requiring reporting by employees of union officials do not pose an actual or reportability of payments to trusts and unions is intermediate and national/international unions of inconsistent with the Act’s language, its structure, payments from and interests in entities with potential conflict of interest. One and relevant case law. One of the commenters also requisite relationships with lower-level unions, international union emphasized that asserted that the proposal was contrary to the when such employees have significant authority or such trusts are created to benefit the position that the Department has taken in influence over such lower-level unions. See Part members and their beneficiaries, so a enforcement litigation under section 203 of the Act. III.E. herein. The Department’s approach here with Because these assertions are focused primarily on respect to reporting interests in and payments from payment from the trust would not pose the Department’s proposal to revise the reportability a competitor of a company whose employees are a conflict of interest for a union official. of certain payments from unions, these arguments represented by the union is similar. Another international union added that are discussed in the section that follows in the text.

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purpose of providing benefits to the organization, and the financial In drafting the LMRDA reporting and union members and their beneficiaries. transactions of such subsidiaries would disclosure requirements, Congress mandated Moreover, requiring Form LM–30 generally need to be reported on the separate requirements for the discrete reporting in situations that do not pose labor organization’s annual financial statutory actors: ‘‘labor organizations,’’ ‘‘labor organization officers’’ and ‘‘labor a conflict of interest would be disclosure report, thus providing organization employees,’’ ‘‘employers,’’ inconsistent with the balanced reporting disclosure. See the Labor Organization ‘‘labor relations consultants,’’ and ‘‘trusts in regimen intended by Congress. Annual Report Form LM–2 Instructions, which a labor organization is interested.’’ Another public interest organization Section X 34 and the Labor Organization (While there are no reporting requirements opposed the proposed change Annual Report Form LM–3 Instructions, for section 3(l) trusts, section 208 authorizes contending that a conflict of interest Section X. Second, although not covered the Secretary to establish such requirements arises and public disclosure is required by LMRDA section 202, many section for labor organizations concerning such when an entity spends lavishly on 3(l) trusts, such as pension and welfare entities.) Further, the statute separately defined five of these six terms. See sections union officials. The comment cited plans, including many Taft-Hartley 3(e), 3(i), 3(l), 3(m), and 3(n) of the LMRDA. examples of payments from several plans, are covered by the Employee entities to union officials, including two Retirement Income Security Act In the Department’s view, section 201 from filed LM–30 reports that, it (ERISA), which provides reporting and requires ‘‘labor organizations’’ to asserted, would not be disclosed under disclosure requirements as well as other disclose, among other financial the Department’s proposal. financial safeguards for employee transactions and information, In response to this comment, the benefit funds. Third, pursuant to a disbursements to many individuals and Department again emphasizes that longstanding interpretation retained in entities, including employers, section 202, and the Act as a whole, do the 2007 rule and this rule, while businesses, their own officers and not provide for general reporting of any payments from a trust are not reportable employees and, potentially, those of payment by an employer, business, or by a union official on the revised Form other labor organizations. Section 203, trust to a union official that may have LM–30, payments from and interests in on the other hand, requires ‘‘employers’’ an undefined, arguable, or even any business that deals with the to file certain reports. As applied to subjective ‘‘disclosure value.’’ To be official’s section 3(l) trust are reportable. section 202, ‘‘labor organization’’ reportable, a payment must create a officers and employees must report 3. Obligation To Report Payments From divergence between the financial payments from ‘‘employers’’ and Unions interest of the official and the interests ‘‘businesses’’ that have established of the official’s labor organization. See In the 2010 NPRM, the Department certain relationships with the official’s Revised Form LM–30 Instructions, Part proposed to modify specific aspects of ‘‘labor organization.’’ The statute’s C. Such circumstances do not generally the general requirement that union reporting provisions thus establish arise regarding a section 3(l) trust, as the officials report payments they received ‘‘employers’’ and ‘‘labor organizations’’ union and the trust have a common from labor organizations. 75 FR 48428. as distinct and separate entities. There interest in ensuring that the trust In support of the proposal, the is nothing in the statute that indicates operated for the benefit of their common Department relied on its statutory that Congress intended, for reporting beneficiaries, the union’s members. analysis of the Act’s reporting purposes, that the category of employers With regard to the commenter’s provisions, concluding that section also would include labor organizations, characterization of certain payments, 202(a)(6) is better read as limited to or that Congress meant for officers and this rulemaking is not the appropriate payments by employers—distinct from employees to report transactions with place for issuing determinations labor unions—notwithstanding the labor organizations acting as such. If regarding disclosure in specific factual acknowledgment, in discussing the Congress had intended that result, it situations. However, as discussed reporting obligations of an official of a seems apparent that in drafting section below, there are reporting requirements staff union, that a union may be an 202 it would have explicitly identified that apply in situations such as those employer. 75 FR 48428–29. Further, as payments from labor organizations as described by the commenter.33 explained in the NPRM, the reportable.35 First, full disclosure is required Department’s proposal would not affect The Department holds the view that concerning the financial operations of a staff union official’s obligation to this reading of the statute better certain entities previously considered to report payments he or she receives from implements the labor union and labor- be section 3(l) trusts that are wholly a union-employer whose employees the management reporting requirements of owned, controlled, and financed by a official’s union represents or actively the LMRDA. First, as stated above, single labor organization. These are seeks to represent. conflict-of-interest payments from labor ‘‘subsidiary organizations’’ of a labor The Department, in reconsidering the organization-employers represented by position taken on this question in the staff unions are reportable under 33 Although the commenter has identified 2007 rule, has concluded that a better sections 202(a)(1), (2), and (5). Second, information that may be of interest to union reading of the LMRDA is that a ‘‘labor the various reports required under members, it has provided no information that organization’’ is distinct from an section 201—Form LM–2, LM–3, and indicates that those payments, in fact, pose a real ‘‘employer,’’ as that term is used in LM–4 Labor Organization Annual or apparent conflict with the official’s duty to his section 202(a)(6). As stated in the union. The information that the union reported just as readily evinces the symbiotic relationship that NPRM: 35 This reasoning is consistent with LMRDA exists between the official’s union and the trust and Interpretative Manual section 260.005. This section a unity of interest, rather than divided loyalty. 34 The Department notes that reporting for provides that no report is required for activities Furthermore, the commenter provides no subsidiary organizations on the Form LM–2, the performed by an attorney on behalf of a union information to indicate that the reported annual financial disclosure form for the largest (distinct from activities performed for an employer), information would be unavailable to members of labor unions, was removed from the reporting even though the attorney meets the definition of the public through public documents required of requirements for that form as a result of revisions ‘‘labor relations consultants’’ under section 3(m), the trust by other regulatory authorities such as the made in 2003. See 68 FR 58374 (Oct. 9, 2003). because the only section of the Act which requires IRS or banking authorities. Moreover, compliance Subsequently, in 2010, the Department returned reports from labor relations consultants is section assistance, not this rulemaking, is the appropriate subsidiary reporting to the Form LM–2 reporting 203(b), which provides for reports from every mechanism to address specific factual requirements for fiscal years beginning on or after person who has an agreement with an employer for circumstances. January 1, 2011. See 75 FR 74936 (Dec. 1, 2010). certain purposes.

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Reports—require all covered labor employers from the definition, namely reported by union officials. In its view, organizations to disclose any ‘‘labor organizations’’ and section 3(l) such intention is negated because the disbursements, including those to trusts. The commenter also asserted that Act ‘‘neither narrowly defines’’ when a officers and employees of other unions. the Department’s interpretation in the union is an employer, nor ‘‘specifically Such disbursements include those NPRM causes ‘‘structural’’ problems, as excludes’’ unions from the definition of addressed in Part B, Schedule 3, the Department ‘‘ignored’’ that unions the term, thus indicating that the ‘‘plain Employer’s Relationship 5(b)–(e), of the are ‘‘employers’’ in areas other than reading’’ of the statute is that labor 2007 Form LM–30 that required filers to section 202. The commenter cited rules organizations can be employers. report payments from certain unions. of statutory construction and case law Further, the commenter cites the See 72 FR 36163. All of these articulating these rules to argue that National Labor Relations Act (NLRA) disbursements constitute payments from terms within a statute must be applied definition of employer, which excludes labor organizations in their capacity as consistently throughout the statute. To labor organizations (except when acting the representative of employees, not as do otherwise, it asserted would create a as an employer). The commenter also an employer of employees. A union ‘‘Pandora’s Box’’ of problems, as unions asserts that the Department ‘‘argues member or a member of the public must report payments to their against’’ itself by asserting that labor would naturally look to the labor ‘‘employees’’ pursuant to section 201 organizations can be employers in the organization’s annual financial and union ‘‘employees’’ must comply context of staff unions. Finally, the disclosure report, and not the Form LM– with the section 202 reporting commenter referred to the removal of 30 reports, to view disbursements from requirements. unions and trusts from the scope of a particular union. Further, pursuant to Further, the commenter stated that ‘‘employer’’ under section 202, as an section 201(c), union members can view Congress would have excluded ‘‘labor effort to eliminate ‘‘unions and labor the underlying records of their union’s organizations’’ from the definition of union-controlled trusts’’ from the reports to ascertain further information ‘‘employer’’ in the LMRDA if it intended section LMRDA section 203 reporting related to the payments to third-party for unions to not be covered by section requirements concerning employer and union officials. 202(a)(6). The commenter also labor relations consultants. Multiple commenters offered support contended that the Department’s With regard to the particular for the proposal regarding payments ‘‘discrete statutory actors’’ argument contentions by the two commenters, the from unions and the stated rationale in was inconsistent with the Department’s Department concurs with the the NPRM. In particular, multiple litigation position in Warshauer v. Solis, observation that ‘‘labor organizations’’ national/international union 577 F.3d 1330 (11th Cir. 2009) and the and ‘‘employers’’ are not mutually commenters stated that the statute does court’s holding in that case.36 In the exclusive. Indeed, labor organizations not allow the reading of ‘‘employers’’ to commenter’s view, the Department there often act in a dual capacity, as both include ‘‘labor organizations,’’ outside argued that ‘‘employer’’ is not just the labor organizations and as employers. of the staff union context. One represented employer, but any private Further, the statute does not define international union stressed that section sector employer. The commenter ‘‘employer’’ in a manner that excludes 201 provides for reporting from unions, concluded that the Department cannot ‘‘labor organizations’’ from its and that a ‘‘plain reading’’ of the Act have it ‘‘both ways,’’ that ‘‘employers,’’ definition, which facilitates coverage of clearly distinguishes between ‘‘labor ‘‘labor organizations,’’ and ‘‘labor staff unions under the Act and labor organizations’’ and ‘‘employers’’ for relations consultants’’ cannot be organization ‘‘employees’’ in various purposes of financial reporting and, discrete actors under the Department’s parts of the statute, several of which the with the exception of payments to staff theory in Warshauer. The commenter commenters cited, including section union officials, does not require union also states its view that under the 202. The Department also acknowledges officials to report payments received Department’s analysis a union-employer that the LMRDA defines the term ‘‘labor from a union. This union points out that and its consultants could be required to organization’’ differently than does the payments by a union are captured on file reports under the persuader activity NLRA. the union’s own reports, as prescribed language of section 203. The Department disagrees with the by section 201 of the Act. Two unions Another public interest organization assertion that it utilizes ‘‘employer’’ emphasized the Act’s legislative history criticized the position taken by the inconsistently throughout the Act. As as well as the statutory language. One Department in the NPRM, stating that stated in the NPRM, the Department international union also offered support there is ‘‘little basis’’ for excluding considers that the better application of for IM section 260.005. None of these unions from the ‘‘employers’’ of section section 202(a)(6) is to exclude payments commenters disagreed with the 202(a)(6). The commenter rejected the from ‘‘labor organizations,’’ as the Department’s analysis that union- idea that ‘‘employers’’ and ‘‘labor LMRDA establishes separate reporting employer payments to staff union organizations’’ are discrete statutory requirements for ‘‘labor organizations’’ officials should be reportable. actors, arguing instead that the and ‘‘employers,’’ a statutory One commenter based its opposition definition of ‘‘employer’’ is ‘‘broad and construction that reduces redundancy in to the Department’s proposal on the inclusive’’ and does not exclude labor the reporting requirements and burden LMRDA’s definitions of ‘‘employer’’ and organizations. The commenter also on unions and their officials. Indeed, ‘‘employee.’’ The commenter contends rejected the notion that Congress would payments from labor organizations are that these ‘‘clearly defined terms’’ apply have included the term ‘‘labor reportable pursuant to section 201, to the whole of the Act, and they must organization’’ in section 202 if it while union officials must report include labor organizations and labor intended for payments from them to be conflicts of interest pursuant to section organization employees, as one cannot 202, and employers and labor relations be an ‘‘employee’’ under the Act unless 36 In that case, the court held that an attorney who consultants must report under certain one works for an ‘‘employer.’’ was designated legal counsel (DLC) (designated by circumstances pursuant to section 203. According to the commenter, the 2007 the union to provide legal services to its members Thus, the ‘‘plain reading’’ of the term for claims relating to workplace injuries) is subject Form LM–30 defined these terms to the LMRDA’s section 203 reporting requirements ‘‘employer’’ within section 202 does not pursuant to the statutory definitions as an ‘‘employer’’ if it has employees and makes include labor organizations acting as without removing a ‘‘subset’’ of reportable payments to unions or union officials. labor organizations. If Congress

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intended for payments from labor requirements imposed on filers by the included the term ‘‘labor organization’’ organizations to be reported pursuant to statute (there on ‘‘employers,’’ here on alongside ‘‘employer.’’ sections 202(a)(6) or 203(a)(1), then it labor union officials), the Department’s Further, the Department’s analysis on would have included the term ‘‘labor longstanding interpretation, and, this point is also consistent with the one organization’’ along with ‘‘employer.’’ secondarily, on the Act’s legislative case that addressed the scope of the Contrary to the commenters’ view, the history. See Brief for Appellee, 2008 WL section 202 reporting requirements. In Department’s position is consistent with 526954, Argument at I.A.1. & 2., B. 3.a. U.S. v. McCarthy, 300 F. Supp. 716, the structure of the Act. For example, & b., C. 1. (brief is without pagination 720–21 (S.D.N.Y. 1969), the court held section 201 establishes initial and on Westlaw); 577 F.3d 1330, 1335–36 that a union officer must report a salary annual reporting requirements for (upholding Secretary’s interpretation received from a labor relations entities that meet the statutory after considering the language of section consultant to an employer, pursuant to definition of ‘‘labor organization,’’ and 203(a)(1) and its context among the five section 202(a)(6). The union officer when section 201 refers to an subsections of section 203). argued that such payments were exempt ‘‘employee’’ of a labor organization, In Warshauer, the Department did not under LMRA section 302(c)(1) (the then it clearly is referring to the subset assert that the term ‘‘employer’’ must be section 302 exemptions are relevant of labor organizations that also qualify read in a way that would require a labor because section 202(a)(6) refers to as an ‘‘employer,’’ as this is the only union with employees to be treated as section 302(c)), but the court held that reading of the statute in which labor an employer for all purposes under the a ‘‘labor relations consultant’’ is not a statutory ‘‘employer’’ under the organizations can have employees. Act. Both the Department’s brief and the Further, in section 504(a), the statute LMRDA. Otherwise, the court court’s opinion focus on the particular uses the terms ‘‘employer’’ and ‘‘labor recognized, the intent of section 202, to language of section 203((a)(1)), there at organization’’ separately and explicitly, disclose conflict-of-interest payments, issue. While the Department argued in to enumerate each situation in which a would be circumvented. Hence, the that case that section 3(e) of the Act person is barred from serving a union or court held that the provision exempting ‘‘defines the universe of employers’’ employer, or as a labor relations regular wage payments from an encompassed by section 203(a)(1)’s consultant for either entity. In section employer was not applicable to regular employer reporting requirements, 504(a)(3), the statute bars an individual wage payments from the labor relations neither the Department’s brief nor the from serving as a labor relations consultant. court’s opinion is in any way consultant or adviser to a ‘‘person There is no merit to the contention engaged in an industry or activity inconsistent with the Department’s that the Department’s proposal affecting commerce,’’ a term that is interpretation of section 202(a)(6). unreasonably distinguishes between broader than both ‘‘employer’’ and Further, while the Department argued staff unions and other unions that also ‘‘labor organization.’’ See LMRDA that ‘‘employer’’ encompassed the have employees. The distinction is section 3(d). Thus, the approach universe of employers encompassed in based on the fact that the payments articulated in this rule does not section 3(e) of the Act, it did not assert (such as gratuities) must be reported establish any ‘‘structural’’ problems that every payment from all such under sections 202(a)(1)(2), and (5)—as identified by the commenters, nor does employers was reportable. Rather, in payments by a represented employer to it open any ‘‘Pandora’s Box,’’ as one additional guidance, the Department a union official—while in the other commenter suggested. delineated the kinds of relationships circumstances enumerated in the 2007 The commenter is mistaken in its that employers must have with unions rule, the union is not making the understanding of the Department’s to trigger reporting for payments to such payments as an employer. This position in Warshauer v. Solis. In that unions and their officials. See Form treatment ensures that the Form LM–30 case, the court held that the Department LM–10 FAQ 10. The Department’s reporting requirements apply to staff did not act arbitrarily and capriciously position here is consistent with union officials as they would to officials in determining that the term Warshauer. The court did not address of other LMRDA-covered unions. ‘‘employer’’ in section 203(a)(1) the issue whether the term ‘‘employer’’ Regarding the commenter’s concern included employers who did not included ‘‘labor organizations,’’ either that the changes proposed would deny participate in persuader or other labor in section 202 or 203, but instead union members any information about relations activities. In Warshauer, the recognized that Congress specifically payments made by a union to union plaintiff, an attorney providing legal limited the ‘‘employers’’ in other officials, the Department reiterates the services to members of a union, subsections of 203, but chose not to in point made in the NPRM that any such conceded that he was an ‘‘employer’’ section 203(a)(1). See Warshauer v. payments would be included in the but argued that only employers who Solis, 577 F.3d at 1335. While payor-union’s annual financial persuade employees about their right to Warshauer stands for the principle that disclosure report, either in the aggregate organize and bargain collectively must ‘‘employer’’ in section 203(a)(1) is or, in specified circumstances, itemized file reports, and that he did not engage broader than merely employers who when they reach $5,000. See 75 FR in this activity. The pertinent statute, participate in persuader or other labor 48428–29. If payments in question are section 203, contained five reporting relations activities, it does not address exclusively benefits, then they would be provisions, four of which were triggered the different question as to whether included in Schedule 20 of the Form by persuader activity. The remaining ‘‘labor organizations’’ acting as such are LM–2. Members of the local could also provision was not so limited, requiring included within this term, given that the examine the underlying documents reporting based solely on certain statute delineates separate reporting related to the reporting, for just cause, financial payments, and the Department provisions for ‘‘labor organizations’’ and pursuant to section 201(c). As stated, contended that its plain language ‘‘employers.’’ The reasoning in the reporting and disclosure of labor required the plaintiff to file a report Warshauer supports the Department’s organization expenditures are pursuant without regard to whether he engaged in determination here that if Congress to LMRDA section 201, not section 202. persuader activity. In Warshauer, like intended to include payments from As to the comment that alleged the here, the Department interpreted the ‘‘labor organizations’’ acting as such in Department lacks understanding of the language in light of the other section 202(a)(6), then it would have Act, the Department first reiterates that

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‘‘labor organizations’’ can be employers 202(a)(1) and (5); the section also uses serve the conflict-of-interest reporting when acting as employers. Thus, ‘‘labor relations consultant’’ to an obligation intended in the Form LM–30 payments from a union-employer to a employer, rather than more broadly rule. The requirement to report does not staff union official are reportable on the ‘‘any person who acts as a labor apply universally to payments from all Form LM–30 pursuant to section relations consultant to an employer’’; charities and non-profits, but only to 202(a)(1). The result is the same, even and the subsection cites the LMRA payments from a charity or other non- if the union-employer is a non-LMRDA section 302(c) exceptions, which apply profit that ‘‘receives or is actively and covered union, evidencing the in a labor-management context. An directly soliciting (other than by mass consistency in the Department’s international union stated that extensive mailing, telephone bank, or mass media) approach. Moreover, the commenter’s reporting concerning charities and other money, donations, or contributions from argument does not flow logically, as, not-for-profit organizations exists the official’s labor organization.’’ In under the 2007 rule, not all non-exempt elsewhere, citing the Form 990 filed such circumstances, the need for payments from LMRDA covered ‘‘labor with the IRS and the reporting of conflict-of-interest reporting is apparent. organizations’’ to union officials were payments to such entities from unions The commenter also urged the reportable pursuant to section 202(a)(6); on the Form LM–2. Thus, Form LM–30 Department to state that a non-profit just those from ‘‘labor organizations’’ reporting of payments from such entities organization is not actively seeking with employees were reportable. to unions, in its view, would be contributions from a union in receiving Finally, regarding the contention that redundant, burdensome, and without a a membership dues payment from the the Department’s interpretation will statutory basis. union or a payment for advertising in affect reporting under the persuader The Department addresses these the non-profit’s publication. The effect activity provisions of section 203, this concerns only briefly. As noted, the of such a construction would be to area is outside the scope of this rule. Department proposed only limited exempt union officials from reporting The Department notes that the suggested changes to reporting under section payments from a non-profit under these problems are not self-evident. See 202(a)(6). Similar arguments directed at circumstances, thereby defeating the LMRDA Interpretative Manual section restricting the reach of that section were intended conflict-of-interest disclosure 260.005 (discussed earlier in this considered and rejected by the purposes. It should be noted that the section) for guidance on the application Department in the 2007 rule. 72 FR issue of what constitutes solicitation of of section 203 in this respect. 36130. The Department has not donations is not relevant in the situation reconsidered this position, but notes posed by the commenter. As presented 4. Obligation To Report Payments From that the interpretation suggested by the by the commenter, the non-profit Charities and Other Not-for-Profit commenters is not compelled by the organization actually receives money or Organizations language of section 202(a)(6) or the contributions from the union. The Form In the NPRM, the Department legislative history relied upon by the LM–30 rule provides that a union proposed no changes concerning the commenters. Furthermore, the official must report payments received reporting of payments received by union Department notes that payments from a from a charity or non-profit organization officials from not-for-profit charitable organization to a union if that organization receives money or organizations. Nonetheless, the official, including director’s fees and contributions from the official’s union Department received four comments reimbursed expenses, are potential or is actively and directly soliciting from unions, asserting that such conflicts of interest, as the union official donations. Thus, the issue of what payments should not be reportable could be influencing the union to constitutes solicitation of donations for because they do not arise out of labor- donate to the charity in order to purposes of applying the Form LM–30 management relations. The commenters maintain the position and income rule is not relevant. Further, it is beyond contend, in essence, that section associated with his or her position on the scope of this rulemaking to make a 202(a)(6), should not be applied to the charity’s board, and not based upon determination concerning what activity payments that do not take place within the union’s best interests. The constitutes solicitation of donations of this context. Such a request is beyond commenters have offered no persuasive union funds. the scope of this rule, but the reason why union members should be E. Scope of ‘‘Top-Down’’ Form LM–30 Department, for completeness, discusses denied information that allows them to Reporting by National, International, these comments below. make a determination about a potential and Intermediate Body Labor One federation of unions praised the conflict of interest. Additionally, while Organization Officers and Employees Department’s narrowing of reporting on some reporting may be duplicated by payments received by union officials other reporting frameworks, the Form In the NPRM, the Department from trusts and unions. It agreed with LM–30 enables members and the public proposed to extend the top-down the Department’s assessment that each to view potential conflict-of-interest reporting requirements, expressly entity is a discrete actor not named in payments to union officials in one established for officers of international, section 202. It also contended, however, location, which justifies any marginal, national, and intermediate unions by that the text and legislative history and additional burden on the union official. the 2007 rule, to employees of such purpose of section 202 require that Another commenter, a law firm, organizations, who had been excepted ‘‘employer’’ in section 202(a)(6) be read offered recommendations on reporting from reporting under the 2007 rule. to include only labor relations conflicts regarding payments from charities and Under the proposal, employees of of interest not covered in sections other not-for-profit organizations. The parent and intermediate unions, like the 202(a)(1), (2), and (5). The federation commenter argued that requiring officers of such unions, would be asserted that the ‘‘employer’’ in section reporting of reimbursed expenses would required to report on financial interests 202(a)(6) included employers in the discourage union officials from in, and payments from, companies that same ‘‘labor market’’ or ‘‘likely providing volunteer services to such have dealings with their union’s organizing targets.’’ The comment organizations. The Department subordinate affiliates and their trusts, as presented three arguments supporting considers that any payment, including a well as certain companies doing this view: section 202(a)(6) uses the payment for expenses incurred in business with a represented employer. term ‘‘an employer,’’ like sections voluntary service, must be reported to The NPRM also proposed to eliminate

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two limited exceptions established by which you serve as an officer or employee. the statute, the findings by the the 2007 rule (sometimes referred to as However, if you are an officer of a national, McClellan Committee concerning ‘‘carve-outs’’) whereby union officers, international, or intermediate union, you conflicts of interest between higher- when applying the top-down reporting must also look at employers and businesses level officers and subordinate unions, that have specified relationships with requirements, were not required to subordinate affiliates (e.g., a local union or the stated purpose of the LMRDA to report on: (1) Payments received by the other subordinate body), as well as your own redress the problems identified in the officer’s spouse or minor children as level of the union. These relationships are McClellan hearings, and the bona fide employees; and (2) financial identified below in the instructions for Department’s longstanding interests held in companies that did completing Parts A, B, and C of the form. If interpretation in the LMRDA business with an employer whose you are an employee of a national, Interpretative Manual that certain top- employees were represented by international, or intermediate union and down reporting was required. 72 FR subordinate affiliates. 72 FR 36122. possess significant authority or influence 36121–24. (whether or not exercised) over a subordinate Although the instructions to the Form Apart from eliminating these affiliate’s activities (e.g., its organizing, exemptions, the Department proposed collective bargaining, contract enforcement, LM–30 had historically been silent on no changes to top-down reporting by spending or investment decisions, or union this point, there has been longstanding officers of parent and intermediate administration), you are also required to look administrative precedent applying the unions. at employers and businesses that have section 202 requirements to higher-level Based on a review of the comments, specified relationships with such affiliate, as union officials. For example, in Section the Department has modified its well as your own level of the union. See 241.100 of the LMRDA Interpretative proposal insofar as it affects reporting instructions below. Manual, the Department addressed the by employees of parent and reporting standards for international intermediate unions. In the final rule, 1. Background union officers, as follows: the Department requires these Many labor organizations consist of a Section 202(a)(3) of the Act requires employees to report on ‘‘top-down’’ three-tier hierarchy: local labor reports from ‘‘every officer of a labor financial interests and payments where organizations, intermediate bodies, and organization’’ of income derived from ‘‘any they hold positions of significant a ‘‘parent’’ national or international business a substantial part of which consists authority or influence over the labor organization. This section of the of buying from, selling or leasing to, or subordinate affiliates. The ‘‘significant rule concerns the obligation of a union otherwise dealing with, the business of an authority or influence’’ trigger is similar officer or employee of a higher-level employer whose employees such labor organization represents or is actively seeking but not identical to the Department’s union (intermediate or national/ to represent.’’ An international union officer proposal in the 2010 NPRM to reduce international) to report his or her must report his income from such a business the burden associated with the reporting interests in and payments (and those of even though he is not an officer of the local of payments from companies that are in the filer’s spouse and minor children) which represents the employees of the competition with a represented from employers and businesses that business, and even though his duties as an employer.37 Comments on the NPRM have a relationship with subordinate international officer do not include suggested that a similar approach would affiliates of the employee’s union. representation activities. eliminate some of the uncertainty and Under sections 202, union officers burden surrounding top-down and employees must report payments 2. Overview of Comments Received and reporting. As discussed in greater detail from, holdings in, or transactions with: Department’s Response below, the Department concurs with the • An employer whose employees the Twelve comments, all from unions, suggested approach. It ensures that filer’s labor organization represents or is including one federation of unions, employees of parent and intermediate actively seeking to represent; specifically discussed the top-down unions generally will report any • A business a substantial part of reporting requirement. An additional financial interests that could pose a which consists of dealing with an three union commenters expressed conflict of interest, while eliminating employer whose employees the filer’s overall support for comments submitted the uncertainty regarding reporting on labor organization represents or is by the federation of unions, which matters that pose little or no risk of a actively seeking to represent; or included recommendations on top- • conflict of interest. A business that deals with the down reporting. One international Additionally, the Department has filer’s labor organization or, as union supported the Department’s adopted the proposed elimination of the interpreted by the Department, a trust in proposed top-down reporting carve-outs. The Department has which the filer’s labor organization is requirement as articulated in the NPRM. accordingly modified the scope of top- interested. All others expressed opposition, down reporting for union officers and The scope of the reporting obligation asserting that the Department’s employees to read: thus depends on which organizations proposed top-down approach creates constitute the filer’s ‘‘labor When applying the Form LM–30 reporting undue burden, and represents a requirements, you are required to look at organization.’’ The issue here is the considerable expansion of the scope of employers and businesses that have specified disclosure obligation of potential top-down reporting requirements set relationships with the level of the union in conflicts of interests that arise between forth in the 2007 rule. a union official and his or her Comments To Eliminate the Top-Down 37 In the NPRM, the Department proposed to limit responsibility to his or her immediate reporting interests in, and payments from, organization as well to any subordinate Reporting Requirement and competitors to represented employers. Under the labor organization(s) within the union’s Department’s Response proposal, officers and employees—without regard to their place in the overall hierarchy of their structure. Six of the commenters who opposed unions—would only have to report on interests and In the rulemaking that culminated in the proposed top-down reporting payments from such employers if they hold a the 2007 final rule, the Department requirement asserted that this reporting position with significant authority or influence over interpreted the language of section 202 requirement should be eliminated organizing, collective bargaining, or contract administration activities. The Department has to require top-down reporting. In altogether in light of the burden that it adopted this proposal in the final rule. This issue reaching this conclusion, the imposes. One international union is more fully discussed above in section III. D.1. Department relied on the structure of asserted that it not only opposed the

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NPRM’s proposed expansion to the top- requirement should be limited to conflict-of-interest payments envisioned down reporting requirement, but also situations in which a parent union has by the LMRDA.’’ The commenter added believes that the 2007 rule’s top-down placed a subordinate union under that the requirement places LM–30 filers reporting requirement is unnecessary trusteeship. They argued that a in a ‘‘severely compromising and legally and ‘‘of little value in disclosing real trusteeship represents the only situation tenuous position,’’ and expressed conflicts of interest.’’ Another in which parent body officers and concern about the additional reporting commenter asserted that both labor employees have financial and and recordkeeping burden associated organization officers and employees managerial control over subordinate with the elimination of the ‘‘carve-outs’’ should have to report only in relation to affiliates. The Department disagrees from the 2007 rule. matters involving the level of the union with this approach because it would be Another commenter expressed hierarchy that they serve and not any unduly restrictive in its exclusion of concern that the proposal expands the subordinate affiliate. other scenarios—beyond trusteeships— top-down reporting obligation beyond The Department disagrees with this that could present a conflict between even what the 2007 rule deemed view and does not support the union officials’ personal financial feasible and necessary,’’ and disagrees elimination of a top-down reporting interests and their duty to the labor with the proposed elimination of the obligation. As explained below, the union and its members. 2007 rule’s ‘‘three critical narrowing reporting burden associated with top- principles’’ associated with top-down down reporting has been overstated and Comments on Burden and Department’s reporting. With respect to the proposal is insufficiently supported by the Response to eliminate the reporting exemption in commenters. Further, such a restricted Several commenters stated that top- the 2007 rule for bona fide employee rule on top-down reporting would down reporting requires union officers payments to spouses and minor eliminate all disclosure of any potential and employees to conduct research, children an international union stated, conflicts of interests of higher-level often extensive, to identify employers or ‘‘It is unreasonable to require that all union officers and employees businesses with which lower-level such things of value, legitimately concerning subordinate organizations, a affiliates bargain or otherwise deal. One received by the spouse in the course of position never previously taken by the commenter described the proposed top- his or her own employment, be subject Department. For example, similar to the down reporting requirement as to scrutiny and reporting solely because situation presented in IM section ‘‘unreasonable and overly burdensome’’ of some inadvertent common 241.100, international union officers and expressed concern that inadvertent connection to a separate local union or and employees may encourage failure to file Form LM–30 reports could related trust fund, at least where the subordinate unions to purchase goods or represent a possible Federal law international officer or employee in services from a business in which they violation. Another commenter question has no authority or ability to have an interest, or a business from expressed concern about the inability of influence the local union or trust fund which they received a gratuity, such as international union officers and decision-making process.’’ 38 a printing company or travel agency. employees to obtain information The Department disagrees with these The subordinate affiliate, fearing necessary to comply with the reporting commenters that the burden imposed by repercussions if it does not do business obligation, and predicted that, by being full top-down reporting is not justified with this vendor, may engage its overly inclusive, ‘‘the result will likely by the actual or potential conflicts of services, even though other vendors be widespread, though unwitting and interest that will be reported. Initially, may offer better rates, services, or unintentional, noncompliance, with no the Department emphasizes, as products. useful information for the public.’’ articulated above, that top-down As a further example, a national Additionally, some commenters reporting is necessary to disclose certain union officer or employee whose spouse stated that the expansion of top-down actual or potential conflict-of-interest is an employee of a service provider reporting imposes a far greater burden situations. Further, to illustrate the may influence lower-level unions to do than the reductions otherwise business with this provider. Top-down associated with the proposed rule. 38 Three international unions stated that the reporting, as well as the other aspects of Although acknowledging the possibility burden associated with the top-down reporting section 202 of the LMRDA, is intended of potential conflicts of interest between requirements was greatly compounded by the higher-level union officers and Department’s decision to retain the 2007 definitions to obtain disclosure of this kind of of ‘‘substantial part’’ and ‘‘actively seeking to conflict-of-interest situation, and such employees and business conducted with represent,’’ by requiring greater research by union reporting is of value to members and the subordinate affiliates, another officers and employees to determine how the public. Several commenters commenter stated that such potential definitions of the terms would apply to lower levels acknowledged that higher-level union conflict does not justify the reporting of the officer or employee’s union. burden, especially in the absence of a Section 202(a)(3) requires a union official to officers and employees may engage in report income and benefits from and interests in conduct raising actual or potential central repository of businesses whose businesses that deal in ‘‘substantial part’’ with an conflicts of interest with lower levels of relationships with subordinates could employer whose employees the official represents their unions. Eliminating the top-down trigger reporting. This commenter noted or is ‘‘actively seeking’’ to represent. Sections that compiling and updating such a list 202(a)(1), (2), and (5) require the reporting of reporting obligation in its entirety payments from, interests in, and transactions with would circumvent the intent of the would be costly and burdensome. employers whose employees the official’s union LMRDA to provide disclosure of actual Seven international unions opposed represents or is ‘‘actively seeking to represent.’’ or potential conflicts of interest. the Department’s proposal to eliminate The 2007 rule defines ‘‘substantial part’’ as 10% certain top-down reporting exclusions of the entity’s business, and provides that the labor Comments To Limit Top-Down that were established in the 2007 rule. union must take concrete steps that demonstrate Reporting to Trusteeship Situations and that it is ‘‘actively seeking’’ to represent employees One commenter asserted that ‘‘while of an employer. This rule does not substantively Department’s Response ‘top-down’ reporting by officers is alter these definitions, which affect numerous Two international unions commented unnecessary and overly burdensome, aspects of reporting pursuant to sections 202(a)(1)– (5), independent of the top-down reporting issue. that they favored the elimination of the expanding such reporting to now These issues are also discussed above at section top-down reporting requirement, but include employees is even further III.F.1. (‘‘substantial part’’) and III.F.2 (‘‘actively suggested alternatively that the removed from capturing the types of seeking to represent’’).

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Department’s contention that the employee’s dealings with vendors and applicability of the Form LM–30 commenters’ view of top-down burden service providers, not all transactions reporting requirements in top-down is overstated, it is helpful to look at the with such entities must be reported. situations. In instances where the union methodology involved in determining Instead, only those matters involving officer or employee or his or her spouse whether a top-down report is owed. The financial situations in which one has an or minor child is an employee of a first step is for a union officer or interest or derives income or other vendor or service provider, receives an employee to look at the types of benefits with monetary value, as occasional payment, such as a gift or interests in, income and benefits required by sections 202(a)(3) and (4), gratuity or a discount on a purchase, or received, and transactions engaged in must be reported. Reportable benefits otherwise has difficulty determining the during his or her fiscal year. The second would include gratuities, such as applicability of the top-down or other step is to eliminate from this list those complimentary hotel rooms, but not reporting requirements, the Department that are exempted by the general regular business or commercial is available to provide compliance exclusions, if applicable, such as transactions in which no such gratuity assistance. In this regard, the publicly held stock, income received by is conferred. See IM section 246.400. Department advises that any officer or the union officer or employee as a bona Thus, an officer or employee would not employee who encounters such fide employee of a represented be required to report the value of the difficulty should request necessary employer, and the de minimis hotel room for which he or she paid information in writing from the union, threshold. This step likely will reduce market value on terms available to the vendor, service provider, or employer. If the number of potential reportable public. the entity refuses to provide the transactions. The third step is to then Union officers and employees, like information, the officer or employee most individuals, do not generally determine whether any of the remaining should contact the Department for receive large gifts and gratuities in financial transactions were derived from assistance in obtaining the information. connection with their business dealings, represented employers, as well as In the meantime, the union officer or service providers and vendors of the and therefore are unlikely to have any employee should make a good faith represented employer, the union, and reporting obligations. Further, those determination, based on the information the union’s trusts.39 The commenters who do receive such gifts and gratuities reasonably available, whether reporting appear to be suggesting that the inquiry are likely to have received them as a is required for the matter involved. If would skip the first two steps and go result of a vendor or service provider’s the union officer or employee directly to the third. intent to influence the union officer or Indeed, officers and employees of employee. In any event, if gifts or other determines that no report is required, parent and intermediate unions will not benefits are conveyed or received, a the officer or employee should retain be required to look at every relationship union officer or employee would be in the written request for information that that lower-level entities have, but, position to seek further information he or she presented to the business, rather, only those that relate to the few, concerning the entity providing the gift employer, or union and any related if any, employers and businesses or other benefit, and, if the requisite documentation. identified in step three of the process. relationships exist, the reporting If an investigation is conducted, there The Form LM–30 report is to be requirements dictate disclosure so is no risk of prosecution absent unusual completed by union officers and members and the public can determine circumstances calling into doubt the employees only when reportable whether or not a potential conflict of legitimacy of the good faith transactions occur during a reporting interest exists. Additionally, a union determination. See 72 FR at 36133. The period, usually a calendar year. officer or employee with a significant Department emphasizes that criminal Reporting is self-initiated. Reportable interest in a business, like any similar liability only results from a willful transactions are generally not the norm. individual with such an interest, is action or from knowingly making a false In determining whether a report is likely in a position to know the entities statement or representation of a material owed, an officer or employee of a parent with which the business deals. The fact or knowingly failing to disclose a or intermediate union would consider same risk of conflict exists where a material fact. See LMRDA Section 209, the nature of a transaction or interest of spouse or minor child of an officer or 29 U.S.C. 439. which he or she has knowledge, rather employee with significant authority or than consider information about the influence over a subordinate affiliate The Department disagrees with the operations of every subordinate affiliate. works for a company that has business concern expressed by some commenters Moreover, with regard to an officer or dealings with those affiliates or business that top-down reporting, as prescribed with or involving an employer whose in the 2007 rule, would result in 39 A fourth step could involve the ‘‘catch-all’’ Part employees are represented by the ‘‘widespread * * * non-compliance.’’ C of the revised Form LM–30, pursuant to section affiliates. Under the 2007 rule, an The Department expects that union 202(a)(6), which would require reporting of any officers and employees will undertake payments from any other employer (other than one international officer whose spouse already identified in sections 202(a)(1)–(5)) from works on commission for a business the task responsibly and without undue whom the receipt of the payment by an official supply/printing company that sells burden, as the rule reasonably achieves would create an actual or potential conflict of personal computers, office furniture, conflict-of-interest reporting without interest. But OLMS proposed restricting the undue burden on filers. In particular, reporting of payments from employers in and printing services throughout the competition with represented employers to union country to locals affiliated with the the Department anticipates that the officers and employees with significant influence international union would not report ‘‘significant authority or influence’’ over organizing, collective bargaining, or contract the spouse’s income, even though the modification it has adopted in the rule administration activities related to a particular will reduce the general level of concern represented employer, see 75 FR 48427, and this potential conflict of interest that such a rule adopts that limitation for employees. See relationship poses is apparent. Under that the proposal may have created discussion above in section III.D.1. This eliminates the revised rule, such income is among employees of parent and the top-down issue for most employees of parent reportable. intermediate unions. The Department and intermediate unions. For those that must expects that only a small fraction of report, it is only because they possess the Thus, potential filers are not required significant authority or influence out of which a to engage in extensive research or create such individuals will have any top- conflict may arise. a ‘‘central repository’’ to determine the down reporting obligations.

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Comments To Narrow the Scope of Top- a hundred subsidiary entities.’’ Another Additionally, those employees who Down Reporting to Individuals Having commenter stated that a vast majority of exercise significant authority or ‘‘Significant Authority or Influence’’ its international union officers and influence over subordinates, unlike and Department’s Response employees have no responsibilities or most employees, are positioned to affect A federation of national and authority with respect to the union’s relationships involving subordinate international labor unions proposed numerous local unions and intermediate affiliates and to be influenced by a narrowing the scope of top-down bodies, and described the idea of represented employer or a potential or reporting by limiting reporting to limiting reporting to officers and current vendor or service provider of a situations in which the filer has employees with ‘‘significant authority or lower-level union. Thus, the ‘‘significant authority or influence’’ over influence’’ as ‘‘far more practicable, yet Department is interpreting section 202 the subordinate labor union. The still burdensome, and more in tune with in a manner that targets Form LM–30 commenter noted that the Department the Act’s ultimate objective of limiting top-down reporting to those employees had proposed under Part C of the reporting to areas where there exists an with significant authority or influence instructions to limit reporting payments actual or potential conflict of over lower-level unions, as a reasonable 41 way to capture conflict-of-interest from employers in competition with interest.’’ situations while avoiding possible represented employers to situations in Upon consideration of these confusion for those employees who are which an employee possessed comments and a further consideration of unlikely to have conflicts of interest significant authority or influence over how best to achieve the Act’s intended involving lower-level bodies. This certain union functions, such as disclosure without imposing approach ensures that the Form LM–30 negotiations, contract administration, or unreasonable burden, the Department reporting requirements do not organizing. The federation noted that has concluded that the federation’s unnecessarily intrude upon the the Department justified this Part C suggestion is a better approach than the legitimate internal operations of unions, limitation by stating that it relieves ‘‘the approaches taken in the 2007 rule and the 2010 NPRM. While the Department and thus better implements the undue burden’’ of requiring the filer ‘‘to Congressional purpose behind section undertake research in order to discover’’ disagrees with the view of certain commenters that top-down reporting is 202. In the Department’s view, this who are ‘‘competitors to their union’s approach effectuates the statute’s represented employers.’’ 75 FR 48427.40 not justified—however limited— because of the burden associated with it, disclosure purpose while limiting The commenter asserted that requiring unnecessary intrusion on unions and all national or international union the Department concurs that most union employees do not have significant their employees. Further, because of officers and employees to conduct other aspects of this final rule that research to identify employers or authority or influence over matters related to lower-level unions and exempt from reporting such transactions businesses with which lower-level as mortgages, car loans, and similar affiliates bargain or otherwise deal therefore would not present the kind of conflict between their personal interests transactions—so long as they are based would impose a similar ‘‘undue on market rates and prices—the burden burden.’’ and their responsibilities to the union that the LMRDA intended to disclose. associated with top-down reporting, as Three national/international unions have all aspects of Form LM–30 specifically concurred with the The Department also acknowledges that such employees are likely to be less reporting, has been substantially federation’s proposal to narrow top- reduced from the requirements down reporting to those officers and familiar with the Form LM–30 requirements than officers and established in the 2007 rule. employees with ‘‘significant authority or By requiring employees who exercise employees with significant authority or influence.’’ Advocating for limiting the authority or influence over subordinate influence over these affiliates. 42 top-down requirement to a ‘‘more affiliates to report on interests and rational level,’’ one commenter stated payments in companies that do business 41 that narrowing the requirement by the This commenter proposed using criteria set with these affiliates or with represented ‘‘significant authority or influence’’ forth under the Fair Labor Standards Act (FLSA) to determine, on a case-by-case basis, if an individual employers, the Department brings top- variable would ‘‘help to lessen the has ‘‘significant authority or influence’’ over the down reporting into greater congruence considerable burden of requiring subordinate entity. The commenter, apparently, is with the language of section 202, which officers or staff to know all the business referring to the test used for the FLSA’s requires conflict-of-interest reporting by relationships involving * * * more than administrative exemption. See 29 CFR 541.201– .203. The Department disagrees with this suggestion both officers and employees. Although regarding the application of the FLSA factors, as there is an inferential basis for the 40 The commenter is referring to the following these factors will not easily correspond to the distinction made in the 2007 rule statement (implementing section 202(a)(6) of the activities of union officers and employees and the between union officers and union Act): purpose of the determination regarding such [An officer or employee must report a payment significant authority or influence. employees, i.e., that only relatively few received from certain employers, including] an 42 The Department recognizes that some might see employees (compared to union officers) employer in competition with an employer whose a unified approach for officers and employees as wield the influence that would give rise employees your organization represents or whose preferable to the approach adopted in the final rule. to potential conflicts of interest, neither employees your labor organization is actively The Department notes, however, that it did not the statute nor the 2007 rule seeking to represent, if you are involved with the propose any change to the basic approach organizing, collective bargaining, or contract established for officers in the 2007 rule and distinguishes between the two administration activities or possess significant supplanting this approach now could be perceived categories in any other respect for authority or influence over such activities. You are as unfair to commenters. Furthermore, on a reporting purposes. Moreover, there is deemed to have such authority and influence of you practical level, the Department believes that little basis for a blanket exclusion of possess authority by virtue of your position, even disclosure is equally well served by the approach if you did not become involved in these activities. adopted in the final rule. Generally, an officer of a higher-level union employees, because 75 FR 48450. See 75 FR 48420, 48427, 48434 parent or intermediate union, by virtue of his or her such individuals (e.g., union organizers) (discussing this part of the instructions). The 2007 office, exercises significant authority or influence could exercise significant authority or rule required that officers and employees report over subordinate affiliates. While the same is not influence over matters relating to such payments even if they had no involvement true of most employees of parent and intermediate with the activities identified above or possessed no unions, in those instances where an employee subordinate affiliates. significant authority or influence over such possesses such authority, he or she has the same Furthermore, regarding the other 2007 activities. reporting obligation as an officer. carve-outs to top-down reporting

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(payments received by the officer’s circumstances, as section 202(a)(6) F. Other Issues Concerning the Form spouse or minor children as bona fide employers (and particularly the LM–30 Reporting Requirements employees and financial interests held competitor employer example) are While the Department proposed in companies that did business with an further removed from the union than the changes to only five substantive areas of employer whose employees are closer relationships described in section the 2007 rule’s reporting requirements, represented by a subordinate affiliate), 202(a)(1)–(5). the comments to the NPRM addressed the statute also does not distinguish In the top-down reporting scenario, other areas related to Form LM–30 between, on one hand, financial the potential conflicts of interest of reporting. These issues include: the interests held by officers and union officers and employees with definitions of ‘‘substantial part’’ and employees, and, on the other hand, significant authority or influence extend ‘‘actively seeking to represent’’ in financial interests held by their spouses to any area of union activity engaged in LMRDA section 202 (a)(3); the and minor children. Additionally, there by subordinate affiliates.44 These definition of ‘‘labor organization officer’’ is little basis for excluding interests in higher-level union employees may in section 202; the reporting of and income and benefits derived from a exercise control over the actions and director’s fees; the de minimis reporting business that deals with the employer decisions of lower-level unions in any exemptions; value range reporting; and but not the union and its trusts, and the area of union activities, including not alternative statutory constructions of 2007 rule did not explain any perceived only organizing, collective bargaining, section 202. For completeness, the distinction. In the Department’s view, comments on these areas are addressed this exclusion creates confusion and contract enforcement, but also below. While these comments are regarding the scope of top-down including spending or investment reporting, as indicated in the comments decisions and union administration. helpful to the Department in identifying to the NPRM, which reflected a Further, such higher-level employees concerns among the various regulated misunderstanding by the commenters may have substantial communication or communities and directing compliance about this aspect of the 2007 rule. It also interaction with officers and employees resources, the comments address illustrated potential under-inclusiveness of subordinate bodies whereby they matters that are beyond the scope of this of the ‘‘bona fide employee’’ exception ‘‘significantly influence’’ the actions by rule. such lower-level bodies. Moreover, to top-down reporting in the 2007 rule, 1. The Definition of ‘‘Substantial Part’’ union officers of a higher-level body such as the example of the higher-level in Section 202(a)(3) union officer who influences affiliates to possess significant authority and LMRDA section 202(a)(3) requires do business with the company that influence by virtue of their position, and union officials to report any interests in employs the spouse of the officer or they are covered under this rule’s top- and payments from, ‘‘any business a employee. Finally, section 241.100 of down reporting requirements without substantial part of which consists of the LMRDA Interpretative Manual, upon exception. Such higher-level officers are which reporting by higher level officers elected directly by members at lower buying from, selling or leasing to, or was based, involved a conflict-of- levels of the union, or indirectly otherwise dealing with, the business of interest scenario that would not have through representatives chosen by such an employer whose employees such been reported under the rule.43 lower-level unions, and thus are labor organization represents or is Reporting will now be required for that accountable to those members and can actively seeking to represent’’ (emphasis scenario. influence the officers and employees of added). In the 2007 rule, the Department The Department is also not applying the lower-level unions. determined that 10% or more of a business’s annual receipts will be the identical standard utilized in Part C Finally, the Department does not considered ‘‘a substantial part’’ of its of the revised instructions for payments adopt a limitation of the ‘‘significant business. See Definition 15, ‘‘substantial received under section 202(a)(6), authority or influence’’ requirement to part,’’ in the 2007 Form LM–30 regarding payments received from an ‘‘a matter potentially implicated by the Instructions; 72 FR 36133. In the 2010 employer in competition with a transaction in question,’’ as NPRM, the Department stated it was represented employer. There, an officer recommended by one commenter, retaining the 2007 definition of or employee must report a payment because the potential conflict of interest ‘‘substantial part.’’ See 75 FR 48434. from such a competitor employer, if the for an officer (or an employee with Three national/international union individual is involved with the significant authority or influence over a commenters asserted that the definition organizing, collective bargaining, or subordinate affiliate) is clearly of ‘‘substantial part’’ in the 2007 rule contract administration activities or implicated without any further unnecessarily complicates compliance possesses significant authority or clarification. influence over such activities. This with the Form LM–30. One commenter, noting the difficulty it poses for top- standard is appropriate under such 44 Section 202 assumes that all union officers and employees (other than exclusively clerical or down reporting by officials of parent 43 In short, this section, which had been issued custodial employees) possess sufficient authority and intermediate unions, stated that it in 1962, provided that an international union and influence, at their level of the union, without unfairly requires a union official to officer must report interests that the officer and his reference to specific duties and responsibilities, to ‘‘take affirmative steps to investigate.’’ spouse had in a company that dealt in substantial warrant conflict of interest reporting if the official part with a represented employer of a subordinate receives a payment from or has an interest in the Another national/international union body, despite the officer’s lack of specific authority statutorily-enumerated entities. However, the commenter argued that defining for representation activities. While the statute is not explicit, in the case of higher-level ‘‘substantial part’’ as 10% or more interpretation was specific to income received for union officials, as to whether reporting is required creates too low a threshold for reporting. an entity that had dealings with a subordinate with respect to potential conflicts of interest in affiliate, neither the interpretation nor the language relation to subordinate affiliates within the union’s The commenter instead suggested that a of the statute supports an argument that limits hierarchy. Nevertheless, it is the Department’s view larger percentage (it did not suggest a reporting to these specific factors. The IM section that top-down reporting is necessary to ensure that particular percentage) would be a more is also consistent with the purpose of the statute, conflict of interest payments are captured, as appropriate threshold, citing to section which requires officers and employees to publicly illustrated above. Some union commenters, as 245.200 in the LMRDA Interpretative disclose possible conflicts between their personal identified above, explicitly acknowledged that financial interests and their duty to the labor union conflict of interest scenarios are possible with Manual, which addresses whether a and its members. transactions involving lower levels of the union. company’s dealings with an employer

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that amounted to some 80% of its A filer does not need to investigate provided by, the vendor. In such business was ‘‘substantial’’ within the the relationship of every vendor or instances, the union official should meaning of section 202(a)(3).45 In the service provider to each represented request information in writing from the commenter’s view, setting the threshold employer of his or her union; the filer vendor. If the vendor refuses to provide at 10% requires reporting about only needs to look at those in which he the information, the official should payments received from companies only or she has an interest or from which he contact the Department for assistance in doing a modest amount of business with or she has received income or other obtaining the information. In the a covered employer, requiring, in its benefit. Further, the commenter meantime, the union official should view, ‘‘an inordinate amount of time to presented no evidence that the 10% make a good faith estimate, based on the survey and evaluate every single threshold constitutes only a ‘‘modest’’ information reasonably available, of business,’’ which an official, his or her rather than ‘‘substantial’’ percentage of whether the 10% threshold has been spouse, or minor child have transactions business for most entities, and is met. If such estimate exceeds the 10% with or holdings in during the fiscal therefore unlikely to target likely threshold, then the union official should year. The commenter cited the conflict-of-interest scenarios. file the report and explain that the unfairness in not limiting reporting to As discussed in the preamble to the vendor failed to provide requested situations in which the filer has ‘‘actual 2007 rule, 72 FR 36133–34, section information. If the estimate yields a knowledge.’’ The commenter added that 245.200 of the LMRDA Interpretative figure less than 10%, no report is the filer is at the ‘‘mercy of the Manual (set forth in the margin), does required, but the union official should business’’ where the information is not not define a reporting threshold. It does retain the written request for publicly available, and that businesses not specify or imply that reports would information he or she presented to the do not have a legal obligation to provide not be required of union officials if the vendor and any work sheet used to the data and may even be legally corporation derived less than 80% of its arrive at the less than 10% figure. See obligated to not disclose such business from the employer. The 72 FR at 36133. information. The two other commenters example’s inclusion of the 80% figure With regard to the concerns expressed generally agreed with this commenter’s illustrates only one ‘‘substantial about potential criminal liability from a observations.46 business’’ relationship that would filer’s failure to identify all companies The Department does not agree that require a report—not a threshold to use that have conducted substantive the definition of ‘‘substantial’’ adds any in determining whether a reporting business with a represented employer, additional burden, or requires an obligation is triggered. Furthermore, no the Department emphasizes that ‘‘inordinate’’ amount of time to apply, commenter suggested an alternative criminal liability only results from a separately from the top-down reporting percentage threshold to 10%. willful action or from knowingly There is no merit to the suggestion obligation. The statute establishes making a false statement or that a reporting obligation attaches only reporting in certain enumerated representation of a material fact or where a union official possesses actual situations involving interests or income knowingly failing to disclose a material knowledge that the vendor’s volume of or benefits from vendors or service fact. See LMRDA Section 209, 29 U.S.C. business with a relevant employer was providers, such as where the vendors or 439. Thus, a filer who makes a good greater than the reporting threshold. service providers deal in substantial faith, conscientious effort to comply This approach would provide an part with a represented employer. The with the reporting requirements should incentive for a union official to remain have no concern about criminal purposes served by section 202(a)(3) willfully ignorant of the business liability. require a reporting threshold that relationship between a vendor in which balances the burden associated with he or she holds an interest or from 2. Definition of ‘‘Actively Seeking To reporting insubstantial matters and the which he or she receives a payment and Represent’’ in Section 202 benefit served by the disclosure of any a represented employer. A subjective LMRDA sections 202(a)(1), (2), and (5) potential conflicts, no matter how small. standard in which actual knowledge of require union officials to report certain In this regard, a quantitative approach is the amount of business triggers payments, interests, transactions, and appropriate in analyzing the level of reporting would also be difficult to arrangements from an employer whose business engaged in for a vendor or implement. employees its union represents or is service provider, and it is relatively easy The Department recognizes that some actively seeking to represent. for a filer to apply, thus reducing union officials may encounter difficulty Additionally, LMRDA section 202(a)(3) burden. in learning the amount of business a requires union officials to report any vendor conducts with the represented interests in, and payments from, ‘‘any 45 245.200 Substantiality of Dealing Union employer. The Department, however, business a substantial part of which Officers A and B of a local union are co-owners of believes that the likelihood of such consists of buying from, selling or a building corporation. The corporation, through intermediaries who are regular meat wholesalers, difficulty is overstated, and the filer is leasing to, or otherwise dealing with, sold meat to employers who bargain with the local not at the ‘‘mercy’’ of a business to the business of an employer whose union. In 1962, some 80% of the corporation’s determine whether or not the employees such labor organization business of approximately $100,000 was with such substantiality threshold has been met. represents or is actively seeking to employers. Both A and B owe reports for the year 1962 with regard to their interest in and their This is especially true where the union represent’’ (emphasis added). The 2007 income from the building corporation pursuant to official holds an ownership or operating rule created a definition for ‘‘actively section 202(a)(3), since both the interest and the interest in the vendor. In those seeking to represent,’’ a term not income are ‘‘derived from, any business a instances, there should be little trouble previously defined in the Form LM–30 substantial part of which consists of buying from, selling or leasing to, or otherwise dealing with, the in obtaining the needed information. and its instructions as follows: business of an employer whose employees such There may be some instances where ‘‘Actively seeking to represent’’ means labor organization represents or is actively seeking the union official encounters some that a labor organization has taken steps to represent.’’ difficulty in obtaining information, such during the filer’s fiscal year to become 46 The same theme is repeated in the comments submitted on the Form LM–30 definition of as where the official is an employee of the bargaining representative of the ‘‘actively seeking to represent,’’ as discussed in the the vendor or receives a gift or gratuity employees of an employer, including next section of the text. from, or a discount on a purchase but not limited to:

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• Sending organizers to an employer’s track vaguely-defined activities at every or filing an NLRB petition’’ does not facility; subordinate level of their union.’’ The constitute the entire universe of • Placing an individual in a position commenter urged the Department to ‘‘concrete steps’’ that a union can take as an employee of an employer that is adopt a revised definition that is to actively seek representation. Thus, the subject of an organizing drive and ‘‘narrower’’ and ‘‘more objective,’’ and creating such a limitation would unduly paying that individual subsidies to that is ‘‘limited to discrete and limit reporting. assist in the union’s organizing enumerated activities that clearly Moreover, while the activities listed activities; constitute organizing employees, such are specific, the ‘‘otherwise committing • Circulating a petition for as a labor organization demanding labor or financial resources to seek representation among employees; recognition from an employer or filing representation of employees working for • Soliciting employees to sign an NLRB petition during the reporting the employer’’ language is necessary, as membership cards; period.’’ Another commenter echoed the the Department cannot enumerate every • Handing out leaflets; concern about the definition’s ‘‘vague conceivable scenario that constitutes a • Picketing; or triggers,’’ and ‘‘urge[d] the [Department] situation in which a union is ‘‘actively • Demanding recognition or to remember that the LMRDA and the seeking to represent’’ employees. In this bargaining rights or obtaining or LM–30 reporting obligation are subject regard, the term ‘‘actively seeking to requesting an employer to enter into a to criminal penalties.’’ This commenter represent’’ derives from the statute, and neutrality agreement (whereby the suggested that revising the definition to the definition is a reasonable attempt to employer agrees not to take a position include ‘‘unequivocal conduct, such as give meaning to the term. The definition for or against union representation of its filing a petition with the NLRB or of ‘‘actively seeking to represent’’ will employees), or otherwise committing demanding representation or bargaining aid filers in complying with the labor or financial resources to seek rights’’ would avoid creating a chilling reporting requirements, and, as with the representation of employees working for effect for ‘‘workers seeking to associate definition of ‘‘substantial part,’’ a filer the employer. Where a filer’s union has to protect and advance their economic can request assistance from the taken any of the foregoing steps, the filer interests.’’ Further, the commenter Department if he or she is having is required to report a payment or noted that the absence of a ‘‘durational difficulty determining if reporting is interest received, or transaction limit on conduct’’ will make it even required. Again, pursuant to the statute, conducted, during that reporting period. more difficult to determine the reporting criminal liability is triggered only upon Note: Leafleting or picketing, such as obligation, and suggested that ‘‘any a showing of willfulness. purely ‘‘informational’’ or ‘‘area standards’’ conduct that constitutes actively seeking A federation of international labor picketing, that is wholly without the object to represent should be limited to actions unions urged the Department to make of organizing the employees of a targeted undertaken during the reporting period two changes to the definition of employer will not alone trigger a reporting about which a union official is filing ‘‘actively seeking to represent.’’ First, obligation. For example, if a union pickets a and not extend to conduct completed in the commenter suggested that the word sporting goods retailer solely for the purpose prior reporting years.’’ ‘‘concrete’’ be added before the word of alerting the public that the retailer is ‘‘steps,’’ so that the first sentence of the The Department disagrees with these selling goods that are made by children definition would begin, working in oppressive conditions in violation commenters’ criticism of the definition ‘‘Actively Seeking to Represent— of accepted international standards, the of ‘‘actively seeking to represent.’’ First, means that a labor organization has picketing would not meet the ‘‘actively the matters related to top-down seeking to represent’’ standard. taken Concrete steps during your fiscal reporting have been addressed in the year to become the bargaining The 2007 Form LM–30 Instructions, previous section on that topic, and the representative of the employees of an Definition 1. In the 2010 NPRM, the Department reiterates that the limiting employer, including but not limited to Department stated that it was leaving of such reporting to union officials with * * *’’ (emphasis added). unchanged the 2007 definition of significant authority or influence over The commenter noted that adding the ‘‘actively seeking to represent.’’ See 75 lower level unions (all officers and word ‘‘concrete’’ would make the FR 48434. those employees with such influence or definition consistent with the The Department received five authority) will alleviate much of the Department’s rationale for the definition comments on the Department’s 2007 commenters’ concern. Second, the as stated in the 2007 rule,47 and would definition of ‘‘actively seeking to criticism of the definition as overbroad, ‘‘advance both the public interest in represent.’’ One public policy with ‘‘vague triggers,’’ and without clarifying the Department’s intent and organization supported the definition. ‘‘objective’’ criteria, is unpersuasive. the legitimate interests of union officials Three national/international labor The definition is narrowly tailored to subject to the rule.’’ unions criticized the definition, and a acts that constitute concrete steps Second, the commenter stated that federation of international labor unions towards organizing, as opposed to two examples of union ‘‘steps’’ that offered a clarification of the definition. merely having an interest in organizing. would constitute ‘‘actively seeking to Three national/international union See the 2007 rule at 72 FR 36131. The represent’’ are in conflict with the commenters urged the Department to enumerated acts are objective in nature, Department’s stated rationale for the reevaluate the ‘‘actively seeking to as they are activities that unions as a definition in the 2007 rule. The represent’’ definition, arguing that the whole generally take to seek commenter urged the Department to proposed rule’s expanded top-down recognition, and they illustrate revise the examples as follows (note that reporting obligation, coupled with this ‘‘concrete steps’’ toward acquiring the commenter’s suggested additions are definition, significantly adds to the exclusive bargaining representative overall burden on filers. One of these status. Pursuant to the terms of the 47 In the 2007 rule, the Department explained commenters called the 2007 rule’s definition, the activities, as well as the ‘‘that the term ‘actively seeking to represent’ is definition ‘‘absurdly broad.’’ payments to be reported, must occur intended to distinguish between situations where a union has taken concrete steps to organize and One commenter argued that ‘‘[i]t is during the particular fiscal year in those where the union merely has an interest in unfair to subject union officers and question. Limiting ‘‘actively seeking to organizing employees of the employer in question.’’ employees to prosecution for failing to represent’’ to ‘‘demanding recognition 72 FR 36131 (emphasis added).

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in italics): (1) Sending organizers to an One national/international union attended gathering’’ standard. The employer’s facility to solicit employee commenter requested that the widely-attended gathering provision support for the union; and (2) Handing Department amend the definition of exempts reporting of payments or gifts out leaflets seeking or urging employee ‘‘labor organization officer’’ so that it is received while in attendance at up to support for the union.’’ limited to ‘‘individuals who are named two of such gatherings per fiscal year for The Department believes that the officers holding positions given policy- which an employer or business has federation’s first suggestion, to insert the making authority pursuant to the union spent $125 or less per employee per term ‘‘concrete’’ into the definition of constitution and bylaws.’’ The gathering. See the 2007 Form LM–30 ‘‘actively seeking to represent,’’ would commenter stated that the Department’s Instructions, page 2. The Department provide filers with additional clarity. definition is overbroad and could result has long had a de minimis exemption The Department considers such in the Form LM–30 reporting for Form LM–30 reporting, which addition to be consistent with the stated requirements extending to a union derives from LMRDA Interpretative purpose of the definition, which is to member who was unaware that he Manual sections 241.700 and 241.710, view only concrete steps as constituting would be subject to Form LM–30 although historically the exemption ‘‘actively’’ seeking to represent. The reporting requirements, including the there applied to payments of Department does not view this change top-down reporting obligation. The ‘‘insubstantial value,’’ without as a material revision to the current rule commenter views the current definition providing a quantitative threshold.50 and is making the change. as reaching individuals the statute did The 2007 rule retained a prior $100 The second suggestion would require not intend to reach, such as exemption for unregistered securities, the rule to be modified in a substantial ‘‘unsuspecting rank-and-file members.’’ which existed in the pre-2007 Form way and therefore is beyond the scope The Department disagrees with the LM–30 Instructions. The Department of this rule. The Department, however, commenter’s views on this issue. The proposed no change to this exemption notes its disagreement with the rule’s definition of ‘‘labor organization or the de minimis thresholds. commenter’s suggestions, as there are officer’’ is derived directly from section Three commenters were pleased that concrete steps that a union can take in 3(n) of the statute, and merely provides the Department had not proposed to actively seeking to represent employees further clarification of the term and, as eliminate the de minimis exemption, other than sending organizers to an an example, states under what but suggested that the Department employer’s facility expressly soliciting circumstances a trustee may be a union consider revising the dollar thresholds employee support for the union or officer. The Department does not view for reporting and linking them to a cost- handing out leaflets expressly seeking or the definition as exceeding the scope or of-living or other automatic adjustment urging employee support for the union. intent of section 3(n). Moreover, the mechanism. A law firm expressed Department notes that pursuant to support for the 2007 rule’s de minimis 3. Definition of ‘‘Labor Organization 51 Officer’’ in Section 202 section 3(n) and the ‘‘retained’’ Form exemptions, but suggested that the de minimis thresholds be revised. The The LMRDA defines ‘‘labor LM–30 definition, rank-and-file union members and other volunteers, such as commenter urged the Department to organization officer’’ in section 3(n).48 increase the $20 and $250 de minimis The 2007 Form LM–30 Instructions stewards, would not ordinarily be covered union officers. thresholds to $50 and $500, further clarifies this definition as set out respectively, and to increase the widely- 49 in the margin. 4. Reporting of Director’s Fees attended gathering exclusion from $125 The 2007 rule requires that a union to $150. 48 ‘‘Officer’’ means any constitutional officer, any Although the suggestions are beyond person authorized to perform the functions of official who receives ‘‘director’s fees’’ president, vice president, secretary, treasurer, or from an employer generally must report the scope of this rule, the Department is other executive functions of a labor organization, these payments. The Department did not persuaded that a $50 recordkeeping and any member of its executive board or similar not propose to eliminate this threshold, a $500 reporting threshold, governing body. LMRDA section 3(n). and a $150 widely-attended gathering 49 Labor organization officer means any requirement. A law firm opposed the constitutional officer, any person authorized to requirement to director’s fees to be threshold are more appropriate than the perform the functions of president, vice president, reported on Form LM–30. The current $20, $250, and $125 thresholds, secretary, treasurer, or other executive functions of Department rejects the suggestion to respectively. The Department views the a labor organization, and any member of its executive board or similar governing body. An remove this requirement, as this was not current levels, based on dollar values, as officer is (1) a person identified as an officer by the a change proposed in the NPRM, and, providing a reasonable distinction, constitution and bylaws of the labor organization; furthermore, a union official’s service applied nationally, between gifts that (2) any person authorized to perform the functions may create a conflict of interest and of president, vice president, secretary, or treasurer; on a board of directors, and the (3) any person who in fact has executive or policy- accompanying fee, may influence the those that do not. The commenter did making authority or responsibility; and (4) a official’s duties to the union. not provide any persuasive justification member of a group identified as an executive board for why the increased amounts would or a body which is vested with functions normally 5. De Minimis Exemptions better distinguish between gifts that may performed by an executive board. Note: Under this definition, an officer includes a The 2007 rule adopted several de ‘‘conflict’’ and those that do not. trustee appointed by the national or international minimis exemptions, including: A $250 union to administer a local union in trusteeship. If reporting threshold; a $20 50 In 2005, a reporting exemption of $25 was you are a trustee elected or appointed by the local recordkeeping threshold; and a ‘‘widely- established, which the 2007 rule subsequently union to audit and/or hold the assets of the union, raised to $250. Additionally, IM section 241.700 you may or may not be a union officer, depending requires that the payments of insubstantial value be on your union’s constitution and other factors. If decisions for the union or that you are authorized ‘‘given under circumstances unrelated to the you serve in your union in any capacity and you to perform the functions of president, vice recipient’s status in a labor organization.’’ Neither are unsure if your position is an officer position, president, secretary, treasurer, or other the 2007 rule nor the revised rule have this you are likely an officer of a labor organization if constitutionally designated officer requirement. • any one of the following applies: Your union’s annual Form LM–2 or Form LM– 51 This commenter also urged the Department to • Your union’s constitution or bylaws refers to 3 lists your position as an officer of the union implement the same de minimis thresholds for your position as an officer of the union • In your position, you serve on your union’s Form LM–10 reporting. Since this issue is beyond • Your union’s constitution or bylaws states that executive board or similar governing body the scope of this rule, the Department acknowledges your position has the authority to make executive See Definition 12, 2007 Form LM–30 Instructions. this suggestion, but will not address it in this rule.

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A national/international union determine the impact, if any, on the but this rulemaking does not lend itself commenter urged the Department to officials’ duties. to addressing a particular activity that revise the de minimis thresholds, The members should have does not involve a change proposed by arguing that they are too low given the information concerning these payments the Department. Without expressing a steep costs of meals and entertainment in order to evaluate for themselves the view on this matter, the Department charged by hotels located in large effect on the officials’ duties to the notes that it is available to provide metropolitan areas. The commenter union, such as whether or not they compliance assistance and guidance to provided examples of conference rates constitute ‘‘lavish entertainment’’ and filers on a case-by-case basis. at hotels where meetings are held, and create possible ‘‘susceptibility to Additionally, a federation of listed examples of the lowest cost food improper influence.’’ An official international labor unions suggested items available, many of which exceed concerned with the appearance of a that the exclusion of income from the $20 de minimis threshold. particular charge or charges could also unregistered securities (on page 5, The commenter also expressed provide further information on the Form exclusion (ii)) be raised from $100 to concern that reporting such conference LM–30 to provide increased context to $250 to achieve consistency with the and meal rates on Form LM–30 ‘‘would the payments, which would diminish or General Exclusion for payments of $250 very likely mislead union members and eliminate the problem of members being or less (page 4) of the instructions. A provide fodder for anti-union misled or confused by the payments. national/international labor union consultants.’’ The commenter added, The Department does not concur with concurred with this suggestion. The ‘‘To many union members, disclosing the suggestions to index the de minimis Department disagrees with this such large sums received for meals exemption thresholds with inflation or proposal. In the Department’s view, the might well call to mind lavish other quantitative or qualitative $100 exemption for unregistered entertainment and cause concern about mechanisms. The exemption is securities is reasonable and consistent possible susceptibility to improper provided to ensure that individuals are with past exclusions provided by the influence * * * However, the reality not required to report, and in some Department. Further, there is no basis cases even track, payments that are of would [be] quite different—literally for concluding that the de minimis insubstantial value and not likely to nothing more than a few bagels and threshold for unregistered securities constitute an actual or potential conflict sandwiches, which the membership must be identical to the threshold for of interest. Further, establishing a would not care about if they knew the payments, such as gifts and gratuities, quantitative assessment for determining true facts. But under current rules, those received. de minimis amounts is superior to a members would see a formal qualitative approach, as filers will easily 6. Value Range Reporting of Financial Government filing, presumably to deal know whether or not a payment is Arrangements and Interests with something significant, and get exempt, without asking the Department A national union commenter exactly the wrong impression about to apply a set of factors and determine suggested that item 7(b) in Part A of the their representatives.’’ whether or not the exemption is revised form, and item 12(b) in Part B, The commenter noted that inflation appropriate. Indexing the thresholds be modified to include valuation will decrease the value of all de minimis and establishing a fluctuating standard categories (covering different ranges of thresholds contained in the proposed would jeopardize the convenience of the dollar values, such as between $5,000 Form LM–30, and cautioned that the de quantitative assessment and and $10,000 or $10,000 to $15,000) that minimis threshold problem will become unnecessarily risk increasing the burden filers would use to disclose the more significant with time. Finally, the on union officials—with no apparent estimated value of financial commenter urged the Department to benefit in terms of transparency. arrangements and interests. The adopt a method for establishing de A law firm suggested that the commenter stated that ‘‘the applicable minimis thresholds that reflect the Department clarify the exemption for statutory language in the LMRDA is realities of union officials’ attendance at widely-attended completely silent regarding whether circumstances, and cited the per diem gatherings. In its view, the Department union officials have to report the exact rates paid by government agencies as an should revise the exemption so that value of a financial interest, or whether example. ‘‘individuals associated with service an approximate range is sufficient.’’ The The Department disagrees with this providers to multiemployer plans, commenter stated that, for example, commenter’s suggestion to use different employers who contribute to such requiring the reporting of a ‘‘value de minimis thresholds, varying by plans, and employer-appointed trustees range’’ of a particular stock would locality or setting them to a level based of plans that are unrelated to the Form adjust for possible fluctuation in the on the charges assessed for ‘‘meals and LM–30 filer’s union may all be stock’s value, and noted the difficulty of entertainment * * * by hotels located considered to be among the ‘substantial determining ‘‘a good faith estimate’’ due in large metropolitan areas.’’ In the number of individuals with no to the potential for significant Department’s view, it would be relationship to a union or a trust in fluctuation in the value of a financial impractical to establish varying rates by which a labor organization is transaction or asset. The commenter locality, and pegging them to the most interested.’ ’’ The commenter argues also indicated that Congress and the expensive charges for modest meals and that, without such clarification, the Office of Government Ethics apply these other gratuities would create too high of widely-attended gathering exception types of valuation categories to the a dollar threshold, thus potentially would be overly narrow, and union disclosure requirements concerning excluding from reporting actual or officials would need to ‘‘identify by presidential appointees’ financial potential conflicts of interest. Moreover, sight the service providers to plans and interests. ‘‘steep costs’’ and ‘‘large sums’’ employer-appointed trustees of plans The Department disagrees that this provided by a represented employer and with no relationship to their union or its approach to reporting would increase certain key businesses to union officials affiliated plans in order to ascertain the utility of the form. Introducing a are precisely the types of payments that whether an event qualifies as a widely complex requirement actually may should be reported on the Form LM–30, attended gathering.’’ The Department increase the reporting burden on filers. to enable the members and the public to acknowledges the commenter’s concern, Additionally, the commenter presented

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no information or analysis as to how service provider to a union official business with the official’s union or this would increase transparency seeking to generate business with the represented employees is faithful to regarding actual or potential conflicts of official’s union. This plain potential congressional intent. For the same interest. conflict of interest would go unreported, reasons, the Department rejects the unless the union official held an commenter’s alternative request that 7. Alternative Views of Reporting ownership interest in the business. even if the Department disagrees with Required by Section 202 The Department has also considered its statutory arguments, the Department An international union representing the additional arguments advanced by should create an exception for its professional athletes, supported by a the commenter, including its assertion members due to what it considers an federation of unions, provided statutory that the legislative history supports its unnecessary and undue burden on its analysis in support of an argument that narrow view of what must be reported officials.53 Another commenter an endorsement arrangement is not under these sections. Upon review, the representing employees working in the reportable on Form LM–30. The legislative history relied upon by the entertainment industry requested that commenter asserted that sections commenter cannot be fairly read to its officials be exempted from reporting 202(a)(3) and (4) should be interpreted reflect the narrow construction it would certain gratuities, which it claimed were to apply only to businesses in which the force upon these sections. The unique to the union and its members’ union official has an ownership interest. commenter also suggests that its industry. This exemption request is The commenter’s position, at bottom, preferred reading of sections 202(a)(3) outside of the scope of the rule, would reduces to a claim that the use by and (4) and the legislative history is seemingly require a fact-based analysis, Congress of the word ‘‘derives,’’ rather embodied in the Department’s own and could not in any event be resolved than ‘‘received’’ in these sections early interpretation of these provisions. on this limited record. evinces a plain intention that the The commenter relies on a general interests to be reported are solely discussion in the Department’s 1961 IV. Revisions to the Regulations, Form, ‘‘ownership interests.’’ annual report about its then recent filing and Instructions 54 As a general matter, the language of experience under the Act. In context, This final rule revises the Form LM– sections 202(a)(3) and (4) does not however, it is clear that the Department, 30 in order to simplify its use by filers provide for this limitation. First, a union in making these statements, was not by reducing the length of the form (from officer must file ‘‘a signed report listing offering an interpretation of sections nine pages to two pages) and its * * * any * * * interest * * * and any 202(a)(3) and (4). Instead, the instructions (from 22 pages to 13 pages) income or other benefit with monetary Department was merely reporting on its and eliminating or modifying some value (including reimbursed expenses) early experience with reports under reporting requirements. The Department * * * derived from, any business.’’ 29 sections 202 and 203 of the Act. Further, identifies below the various changes U.S.C. 432(a)(3), (4) (emphasis added). in any event, these statements do not effectuated by the final rule to the The term ‘‘any business’’ cannot easily evince an interpretation that limits an Department’s regulations implementing be read to mean ‘‘any business in which official’s reporting obligation under section 202, 29 CFR 404.4, the Form the union officer or employee owns an section 202 to ‘‘ownership interests.’’ LM–30, and its accompanying interest.’’ Second, the commenter The commenter candidly instructions, which are incorporated asserts that in normal usage the word acknowledges that the meaning it into the regulations by reference. 29 ‘‘derives’’ is used ‘‘in lieu of * * * attributes to the ‘‘1961 interpretation’’ is CFR 404.3. received from’’ and indicates that the at odds with the Department’s payment is from a business to an published interpretation that states: A. Regulations individual who holds an ownership ‘‘Union officers who receive Only one change has been made to the interest. But the statute uses the term complimentary hotel rooms and other regulatory text. 29 CFR 404.1(f). In ‘‘derived’’ to describe a category of gratuities of substantial value from the section 404.1(f), the Department income that includes ‘‘payments and hotel at which the union holds its removes the definition of ‘‘labor other benefits received as a bona fide convention are required to report organization,’’ which had been added in employee.’’ 29 U.S.C. 432(a)(1), (2). As pursuant to section 202(a)(4).’’ the 2007 rule to establish the scope of income ‘‘derived’’ includes ‘‘payments Interpretative Manual, section 246.400. reporting required of higher-level union received,’’ Congress was not using Although the commenter indicates that officers. Paragraphs (g) through (j) of ‘‘derived’’ in the limited sense suggested this interpretation was issued by the by the commenter. Additionally, the Department sometime after 1984, the 53 The commenter states that ‘‘out of an excess of Department notes that the crucial interpretation, in fact, was issued in caution’’ the union’s officials have been reporting distinction between ‘‘derives’’ and 1964.52 Thus, the position set forth in these payments because of the difficulty they have ‘‘receives’’ that the commenter attributes in determining whether the companies they receive the LMRDA Interpretative Manual payments from conduct substantial business (10% to these terms is not borne out by their demonstrates that the position taken by or greater) with the league. The Department common understanding as synonyms. the Department in the 2007 rule was not emphasizes that payments from a company doing See, e.g., ‘‘Derive’’ ‘‘to take, receive, or a new one. business with a represented employer are reportable obtain, esp. from a specified source.’’ only if the business is greater than 10% or more of The Department believes that its the company’s annual receipts. The Department Merriam-Webster’s Collegiate Dictionary interpretation that requires union notes that the commenter does not state whether (10th ed. 2002); ‘‘Receive’’ ‘‘to come into officials to report gifts, gratuities, and filers have made any inquiries regarding the extent possession of: ACQUIRE < ∼ a gift >’’. other payments received by union of business conducted between the companies Id. There is simply no persuasive making payments and the league. As stated in the officials from companies that do preamble to the 2007 rule, the Department is argument that the plain language of available to assist filers in obtaining such these sections evinces the ‘‘ownership’’ 52 The LMRDA was enforced by various offices information if their own efforts are unsuccessful. delimited meaning the commenter within the Department prior to 1984, when OLMS See 72 FR 36134. would attribute to the use of ‘‘derived.’’ was established. The commenter inferred that since 54 For the convenience of LM–30 filers and the the interpretation was contained in a publication public, this section restates most of the information Further, the interpretation would issued by OLMS, it could not have predated 1984. contained in the comparable section of the NPRM, exclude from reporting payments and The Department’s internal files show that the revised as necessary to reflect differences between gratuities provided by a vendor or interpretation is dated July 1964. the proposed and final rules. See 74 FR 48430–35.

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section 404.1 also will be re-designated the monetary value of the payment or and ‘‘more straight-forward’’ than the as (f) through (i), respectively. The term interest along with its source and other 2007 form. The commenters that ‘‘labor organization’’ is separately pertinent information. A sum of money generally opposed any changes to the defined in the LMRDA, and language or other payment or asset, in and of 2007 rule did not comment on the regarding the scope of reporting for itself, has no meaning, and can lead to content and layout of the form and national, international, and intermediate confusion for the viewer and reflect instructions. union officers and employees has been unfairly on the filer. Further, presenting The federation of labor organizations added to the revised instructions. a figure for ‘‘total reported income or expressed support for the Department’s other payments’’ gives the impression proposed revisions to the form and B. Revised Form that this total represents payments instructions, with noted exceptions. The The revised Form LM–30 utilizes a received by the filer, when in fact, this commenter stated that its experience simplified format that will better figure might also include items such as providing training to union officials on facilitate filers’ compliance with Form interest in personal or real property, their reporting obligations ‘‘indicates LM–30 reporting requirements and insurance, or share holdings. that the vastly more complicated form increase the form’s utility to the public. The revised form does not contain and instructions adopted by the 2007 Unless otherwise noted, the revised sections on Employer and Business rule would have been very difficult for form and instructions adopted by this Relationships (items 6 and 7, union officials to understand and rule are the same as those proposed in respectively, on the 2007 form). The complete,’’ and would likely have the NPRM. Further, the Department will Department does not believe that this resulted in a lower level of compliance address below comments received on general information adds to the than under a simpler report. This the layout of the form and instructions. usefulness of the form, because this commenter also suggested several With respect to layout, the revised information is reported on each changes to the proposed form and form more closely resembles the pre- schedule. A bulleted checklist listing instructions. These suggested 2007 form than the lengthier 2007 form. various reportable relationships has also modifications will be discussed below, The revised form, which is two pages in been eliminated. in the specific form/instructions length, contains four sections: a section The revised form’s contact sections to which they pertain. Two that contains basic identifying information sections in Parts A, B, and international union commenters information on the filer and his or her C generally collect the same information concurred with the comments submitted labor organization, and Parts A through requested in Schedule 1 of the 2007 by the federation of labor organizations, C. Part A is designed to capture form, except that the revised form does including suggested changes to the form reportable transactions between union not ask whether the filer, filer’s spouse, and instructions. officials and represented employers. or minor child had a relationship with Three international union Part B captures reportable transactions the employer, business, or labor commenters expressed support for the with businesses that deal with the relations consultant at the end of the Department’s proposal, but suggested official’s union or a trust in which the reporting period. The Department some additional modifications to the union has an interest, or that have received no comments on this proposed form and instructions. These substantial dealings with a represented change. The revised form also suggestions will be discussed in the employer. Part C covers transactions eliminates the requirement that a filer relevant form/instructions sections with other employers or labor relations provide the Web site address of the below. consultants. The form has been employer, business, or labor relations Multiple commenters asserted that the simplified by removing numerous consultant in which the filer holds an 2007 Form LM–30 reporting schedules, checklists, and examples. interest or receives a payment. The requirements were overly burdensome, While the inclusion of this information Department does not believe that the confusing, and complicated, and in the 2007 form was intended to assist Web site address is necessary, since questioned the purpose of the increased filers, it is the Department’s present viewers of the form can independently disclosure obligation. An international view that these additions made the form locate this information. union commenter stated that ‘‘[t]he 2007 more confusing and difficult to In place of the separate Additional form was extremely burdensome to complete. Information Schedule, which was filers, and confusing and misleading to The revised form does not contain the included in the 2007 form, the revised the public.’’ Another international summary schedule that was on the first instructions simply provide guidance on union commenter described the 2007 page (item 5) of the 2007 form. The how to provide additional information. form as ‘‘virtually indecipherable.’’ Department does not believe that Filers who choose to complete the Form Another international union commenter requiring a summary schedule to report LM–30 in paper format are instructed to stated that the trainings for union ‘‘total reported income or other attach a separate letter-size page, with officers and employees would have been payments’’ and ‘‘total reported assets’’ is identifying information. Filers who ‘‘unnecessarily complicated—to no useful information, by itself, and may be complete the Form LM–30 useful purpose—had the Department misleading. Without knowing the electronically will be able to add determined to use the new form and context of the reportable transaction or additional information as needed. instructions proposed in 2007.’’ transactions, a viewer does not have a In response to the NPRM, ten labor An additional international union basis to assess the actual or potential organizations—one federation of labor stated that ‘‘[t]he Department’s proposal conflict of interest and the impact such organizations and nine international correctly recognizes the unnecessary a conflict would have on the official’s unions—submitted comments on the over-complication, confusion, and duties to the labor organization. For a content and layout of the LM–30 form burden caused by its 2007 rule. The new filer with multiple payments, a summed and instructions. All ten commenters form and instructions strike the correct total on the front page of the form is expressed support of the Department’s balance between the Act’s twin goals of misleading, even if the totals are proposed revisions and endorsed the requiring disclosure of conflict separated by assets and other payments, decision to adopt a form similar to the transactions and not creating since a viewer of the form can only pre-2007 form. Multiple commenters unnecessary reporting burdens for judge a conflict of interest by looking at described this earlier form as ‘‘simpler’’ union officials.’’

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Another international union nature of the interest, transaction, reportable interest in, transaction or commenter stated that ‘‘the changes to benefit, arrangement, income, or loan; in arrangement with, or received income, the form[ ] and instructions improve item 7b, the filer enters its amount or payment, or benefit from ‘‘an employer clarity, eliminate redundancy, and value. As stated above, the Department (other than a Represented Employer or reduce the amount of unnecessary has removed the requirement that filers Business covered under Parts A and B information currently required to be report the Web site address for the above) from whom a payment would filed.’’ The commenter added that the employer. create an actual or potential conflict changes ‘‘permit the DOL to more As will be explained in the Revised between your personal financial effectively fulfill the goals of the Instructions section below, the filer interests and the interests of your labor LMRDA reporting requirements in must complete a separate Part A for organization (or your duties to your disclosing conflicts of interest.’’ This each transaction reported. A labor organization); or a labor relations commenter also stated its view that the Continuation Button is located below consultant to such an employer or to the changes will help filers comply with the Part A if the filer needs to complete one Represented Employer listed in Part A.’’ LM–30 reporting obligation more or more additional Part As. If the filer has reportable activity with such an employer or labor relations ‘‘efficiently’’ and ‘‘cost effectively’’ than Part B—Business (Items 8–12) under the 2007 rule. consultant, he or she must provide in The revised form requires the filer to item 13a the contact information for the Section-by-Section Discussion of complete Part B if he or she had a employer or labor relations consultant. Revised Form reportable interest in, transaction or In item 13b, the filer must indicate A section-by-section discussion of the arrangement with, or received income, whether the entity is an employer or revised form follows: payment, or benefit from ‘‘[a] business, consultant. The filer must describe the such as a vendor or service provider, (1) First Section—Basic Identifying nature of the payment in item 14a, and A substantial part of which consists of report the amount or value of the Information (Items 1–5) buying from, selling or leasing to, or payment in item 14b. As stated above, The first section of the revised form otherwise dealing with the business of the Department has removed the gathers basic information about the filer a Represented Employer described in requirement that filers report the Web and his or her labor organization. Item Part A or (2) any part of which consists site address for the employer or labor 1 requests the Form LM–30 file number, of buying from or selling or leasing relations consultant. and item 2 calls for the fiscal year directly or indirectly to, or otherwise As will be explained in the Revised covered in the report. Item 3 provides a dealing with your labor organization or Instructions section below, the filer box to identify whether the form is with a trust in which your labor must complete a separate Part C for each being filed as an amended report. The organization is interested.’’ transaction. A Continuation Button is filer must provide his or her contact If the filer has reportable activity with located below Part C if the filer needs information in item 4, which includes such a business, he or she must provide to complete one or more additional Part lines for his or her name and street in item 8 the contact information for the Cs. address (both required), and an email business, including the name and In its comments submitted in address (optional). In item 5, the filer telephone number of a contact person. response to the NPRM, a federation of provides identifying information about In item 9, the filer must indicate the labor organizations suggested that his or her labor organization, indicates entity the business deals with by ‘‘Contact name’’ and ‘‘Telephone’’ be whether he or she is an officer or checking the box for (a) Labor removed from Part A (item 6), Part B employee, and notes his or her officer organization, (b) trust, or (c) employer. (items 8 and 10), and Part C (item 13a). position or job title. If the filer serves as If the filer checks the box for trust or The commenter stated that filers are not an officer or employee in more than one employer, he or she must provide the in the position to designate a contact labor organization, this information is trust or employer’s name and contact person for employers and businesses. captured on an item 5 Continuation information in item 10. The filer must The commenter added that ‘‘inviting Page. describe the nature of the dealings in inquiries to the employer or business Below the first section, the revised item 11a, and report the value of the from members of the general public form states, ‘‘Complete Part A, B, or C dealings in item 11b. Additionally, the seems inadvisable,’’ especially since the if, during the past fiscal year, you or filer must describe in item 12a the Department could make such inquiries. your spouse or minor child directly or nature of the interest, benefit, The Department disagrees. In its view, indirectly had a reportable interest in, arrangement, or income and report in filers should be able to easily ascertain transaction or arrangement with, or item 12b the amount or value of the the contact information for an employer received income, payment, or benefit interest, benefit, arrangement, or or business from which they have from the entities described below.’’ income. As stated above, the received income, a gift, or another Department has removed the benefit, or in which the filer has an Part A—Represented Employer (Items 6 requirement that filers report the Web interest, or otherwise has engaged in a and 7) site address for the business. As will be business transaction or arrangement. In the revised form, ‘‘Represented explained in the Revised Instructions Further, the reporting of this contact Employer’’ is defined as ‘‘an employer section below, the filer must complete a information will assist union members whose employees your labor separate Part B for each transaction and the public to cross-check organization represents or it is actively reported. A Continuation Button is information reported on Forms LM–10 seeking to represent.’’ If the filer had a located below Part B if the filer needs and Forms LM–30, and assist the reportable interest, transaction, benefit, to complete one or more additional Part Department in determining reporting arrangement, income, or loan from his/ Bs. compliance. her ‘‘Represented Employer,’’ he or she must provide in item 6 the employer’s Part C—Other Employer or Labor Signature and Verification (Item 15) contact information, including the name Relations Consultant (Items 13 and 14) The filer must provide his or her and telephone number of a contact The revised form requires the filer to signature, date, and telephone number person. In item 7a, the filer provides the complete Part C if he or she had a in item 15, which is located on the

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bottom of the first page. As explained in 30, the Department intends to provide preamble, the term ‘‘labor organization’’ the instructions, filers are instructed to compliance assistance support to Form is separately defined in the LMRDA. view the OLMS Web site for further LM–30 filers. Fourth, the instructions have been information on how to electronically Additionally, the Department has revised to reflect that, under this rule, sign and submit the Form LM–30. The substantively modified the definitions employees of parent and intermediate signature line on the revised form is of some key terms that are found in the unions have top-down reporting identical to that on the 2007 form, 2007 Form LM–30 Instructions. First, obligations if they have significant except that the revised form assigns the the Department has removed the authority or influence over subordinate heading ‘‘Signature and Verification’’ to definition of ‘‘bona fide employee’’ as affiliates. Two exemptions for top-down item 15. The signature line on the 2007 used in the 2007 rule and added the reporting, established by the 2007 rule, form did not include a heading. bona fide employee exemption found in have been eliminated. The Department the instructions for the pre-2007 form, had proposed that the top-down C. Revised Form LM–30 Instructions with minor edits for clarity, as reporting obligation would apply to all 1. General explained below. The language that was employees of parent and intermediate added reads: unions, as had been established for all The revised instructions reflect officers of such unions by the 2007 rule. significant changes in both layout and Payments and benefits received as a bona fide employee of the employer for past or In response to comments submitted on content from the 2007 form. The content the proposal, the final rule has modified has been changed to reflect the specific present services, including wages, payments or benefits received under a bona fide health, this requirement. Under the rule, only changes adopted by this rule, as welfare, pension, vacation, training or other employees who possess significant discussed earlier in this preamble. Other benefit plan; and payments for periods in authority or influence over subordinate changes have been made to add clarity which such employee engaged in activities affiliates must report on financial and eliminate unnecessary repetition. other than productive work, if the payments interests in, and payments from, The discussion immediately below for such period of time are: (a) Required by companies that deal with the highlights significant changes between law or a bona-fide collective bargaining subordinate affiliates or companies that the revised and 2007 instructions. agreement, or (b) made pursuant to a custom or practice under such collective bargaining deal with or involve employers whose As noted above, the revised form and employees are represented by the instructions reinstate the general ‘‘Parts agreement, or (c) made pursuant to a policy, custom or practice with respect to affiliates. A, B, and C’’ format featured in the pre- employment in the establishment which the The reasons for these changes are 2007 form and instructions, replacing employer has adopted without regard to such discussed in detail in section III of this the multiple-schedule format employee’s position with a labor rule. introduced by the 2007 rule. The organization.55 (emphasis added). 2. Particular Sections and Parts revised format is clearer and more Second, the Department has modified streamlined and will make the form the definition of ‘‘labor organization Section I, Why File: This section much easier for filers to understand and employee.’’ As a result, the Department presents general information about the complete, without affecting the has inserted the following language into reporting requirements of section 202. usefulness of the information disclosed. the revised Form LM–30 Instructions in This information is identical to that The revised instructions do not Section II, Who Must File: ‘‘For presented in the 2007 instructions, include a separate ‘‘Definitions’’ section, purposes of the Form LM–30, an except that it has been simplified to which was included in the 2007 individual who serves the union as a refer to the individual completing the instructions. The revised instructions union steward or as a similar union form as ‘‘you,’’ instead of ‘‘filer.’’ instead present definitions and Section II, Who Must File: The 2007 representative, such as a member of a clarifications of key terms in the context instructions presented a lengthy Section safety committee or a bargaining of the sections in which they first II, Who Must File and What Must Be committee, is not considered to be an appear in the document. When a Reported (located on pages 1–9). The employee of the union, by virtue of definition follows a section of the revised instructions have divided this service in such capacity.’’ (emphasis instructions, the term to be defined is into two separate, concise sections, added). Note that the definition has italicized. Further, if a defined term is Section II, Who Must File and Section been slightly modified from the NPRM used in multiple places, the later III, What Must Be Reported. The for clarity purposes, as explained in Part references refer back to the section in Department believes that this change III, Section B, with the addition in which the term is first used and defined. will enable filers to more easily italics and removal of the word This approach will help filers understand this basic information. This ‘‘exclusively’’ before the phrase ‘‘as a understand key terms as they read section states that ‘‘(a)ny officer or union steward.’’ employee of a labor organization (other through the instructions, and will Third, the Department has removed than an employee performing clerical or eliminate the need for filers to the definition of ‘‘labor organization’’ custodial services exclusively), as frequently refer to a separate (Part III, D10), which had been added to defined by the LMRDA, must file Form ‘‘Definitions’’ section to determine what the 2007 rule in order to describe the LM–30 if, during the past fiscal year, the must be reported and how it must be top-down reporting obligation of officer or employee, or spouse, or minor reported. national, international, and intermediate The Department has removed the child, either directly or indirectly, held body officers under section 202 of the examples that are dispersed throughout any legal or equitable interest, received LMRDA. As explained earlier in this the 2007 instructions. These examples, any payments, or engaged in many of which involved situations 55 The final part of the instructions read, in the transactions or arrangements (including confronted by a very small number of pre-2007 Form LM–30 Instructions and in the loans) of the types described in these filers, made the form unnecessarily NPRM, as: ‘‘or (c) made pursuant to a policy, instructions.’’ ‘‘Labor organization complex and difficult to complete, custom or practice which the employer has adopted employee’’ is defined as ‘‘any individual without regard to any holding by such employee of without meeting the intended goal of a position with a labor organization.’’ The (other than an individual performing providing helpful guidance. Following Department made changes in the final rule to this exclusively clerical or custodial the publication of a revised Form LM– language to ensure clarity. services) employed by a labor

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organization within the meaning of any the Public Disclosure section in the 2007 officers. This change is discussed in law of the United States relating to the instructions. greater detail in section III, part E, of employment of employees.’’ It also Section VIII, Officer and Employee this notice. provides: ‘‘For purposes of the Form Responsibilities and Penalties: With the The definition of ‘‘directly or LM–30, an individual who serves the exception of a slight change in wording indirectly’’ is presented immediately union as a union steward or as a similar in the first sentence (changed ‘‘required after this introductory language. This union representative, such as a member to file’’ to ‘‘required to sign’’), this definition, including its two examples, of a safety committee or a bargaining section of the revised instructions is is unchanged from the 2007 rule. committee, is not considered to be an identical to the information in the The revised subsection, General employee of the union by virtue of Section VII, Officer or Employee Exclusions, describes the general service in such capacity.’’ The term Responsibilities and Penalties in the reporting exemptions, ‘‘insubstantial ‘‘minor child’’ is also defined as 2007 instructions. payments and gifts’’ and ‘‘widely- someone younger than 21 years of age. Section IX, Recordkeeping: This attended gatherings,’’ both of which are The reporting exceptions for section contains information identical to unchanged from the 2007 rule. In insubstantial payments and gifts, that in the Recordkeeping section of the response to a suggestion submitted by a including attendance at widely attended 2007 instructions. federation of labor organizations, the gatherings, are unchanged from the 2007 Section X, Completing Form LM–30: Department has moved the definition of instructions, but their discussion has This section presents detailed ‘‘trust in which a labor organization is been moved to Section X, Completing instructions on completing all of the interested’’ from the General Form LM–30. information items in the Form LM–30. Instructions section (page 4) to the Section III, What Must Be Reported: The Department believes that the definition section in Part B (page 7) This revised section simply refers filers placement of this section on page 3 of because the trust definition is relevant to Parts A, B, and C of the instructions the revised instructions represents a only to Part B. An international labor for information about financial significant improvement over the 2007 union also commented that the transactions and interests that must be instructions, which did not provide this placement of the 3(l) trust definition in reported. information until page 14. the General Exclusions section is Section IV, Who Must Sign the Report: This section begins by providing confusing. The Department has made This section specifies that the labor information on electronically this change to eliminate any possible organization officer or employee is completing the form and explains that confusion about this point. This required to sign the completed Form the Department will provide compliance commenter also suggested that the LM–30. assistance support for both paper format instructions would benefit from adding Section V, When to File: The and electronic filing. The 2007 a general exclusion to page 4 to indicate information in this section is instructions did not provide this that filers do not have to report benefits substantively identical to the information. This section also provides received from a trust in which their information in Section IV, When to File information on completing Information labor organization is interested. The in the 2007 instructions. Items 1 through 5, which gather basic Department has also made this change, Section VI, How to File: The revised identifying information about the filer in order to clarify the removal of Form LM–30 may be submitted in paper and his or her labor organization. With reporting of payments from trusts format or electronically. Filers will be the exception of minor changes in pursuant to section 202(a)(6). able to choose between the two options. wording, these ‘‘basic identifying’’ A federation of labor organizations Section VI provides information information items are the same as in the also suggested that the sentence regarding these filing options, including 2007 instructions. referring to ‘‘director’s fees, including how to obtain the form and instructions Next, the revised instructions feature reimbursed expenses’’ should be on submitting it from the OLMS Web the heading, ‘‘Information Items—Parts removed as ‘‘redundant and confusing’’ site. A, B, and C.’’ The revised form features from the General Exclusions section of The Department has significantly the simpler ‘‘Parts A through C’’ the General Instructions section on page improved the electronic process for approach, as opposed to the multiple- 4, because it also appears in the submitting the various LMRDA-required schedule format introduced in the 2007 instructions for Parts A and B. The reports, including the Form LM–30, form. Department disagrees because the which simplifies the electronic First, the subsection ‘‘General instruction on reporting ‘‘director’s signature procedure and eliminates the Instructions for Reportable Transactions fees’’ is a general requirement that associated costs to filers. Specifically, and Interests’’ begins with: ‘‘You must applies to all three sections of the the Department has implemented a report if, during the past fiscal year you revised form. An international union simplified electronic signature that only or your spouse or minor child, directly commenter also stated that the sentence requires the filer to acquire a Personal or indirectly: (1) Held an interest; (2) about ‘‘director’s fees, including Identification Number (PIN) and engaged in a transaction or arrangement reimbursed expenses’’ that immediately password, which the Department (including loans); or (3) received follows the section 3(l) trust definition provides at no cost to the filer. The income, payment or other benefit with in the proposed instructions gives the Department believes that electronic monetary value covered by the Act.’’ erroneous impression that reporting reporting generally is easier for filers, Next, the instructions provide such benefits from such trusts is and that it will enable the Department information on the scope of filing for required. The Department disagrees, to better incorporate submitted forms national, international, and intermediate noting that any such concern has been into its Electronic Labor Organization union officers and employees, which (as alleviated by moving the section 3(l) Reporting System (e.LORS), ensuring explained above in section III, part E, of trust definition to the instructions for easy access to information for the this notice) requires some union Part B. public. employees (where they have significant Filers are also instructed to complete Section VII, Public Disclosure: With authority or influence over subordinate a separate Part A, B, and/or C if they are the exception of a slight change in affiliates) to report the same top-down reporting more than one entity or wording, this section is unchanged from information now required of union transaction. The instructions explain

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that additional Parts A, B, and C are substantively unchanged from the 2007 fide employees, are first discussed in available by clicking the Continuation instructions. These relate, respectively, the instructions, it will be clear to filers Button on the electronic form or to holdings, transactions, and income that such payments are not reportable. attaching a separate Part A, B, or C, if from bona fide investments in securities Additionally, specific instructions are the filer is using a paper format. traded on a national securities provided on how to complete items 6 A federation of labor organizations exchange; holdings, transactions, and and 7, which are described in the above suggested that this section, beginning income from other designated subsection, Section-by Section with ‘‘Complete a separate Part A, B, securities—of $1,000 or less; and Discussion of Revised Form. and/or C’’ (page 4, left column), should transactions involving the purchases This commenter suggested that the be placed immediately before the and sale of goods and services in the two examples preceding the ‘‘Other ‘‘General Exclusions’’ instruction (page regular course of business at prices transactions or arrangements’’ heading 4, left column). The commenter stated generally available to any employee of in Part A (pages 6–7) be moved to Part that the typeface and position of the the employer (excluding loans or B since they concern businesses that headings make the ‘‘Complete a separate transactions involving interests in the deal with the labor organization, not Part A, B, and/or C’’ section erroneously employer).56 The fourth exclusion, employers. The Department disagrees appear to be an exclusion. The ‘‘Payments and benefits received as a with the comment, as the examples, Department agrees that this change bona fide employee’’ (emphasis added), which derive from the 2007 would add clarity, and it has thus has been modified to incorporate the instructions, are provided as part of the moved the ‘‘Complete a separate Part A, historical interpretation given payments definition, and are intended to illustrate B, and/or C’’ title and instructions to received by union officials under union the application of the term ‘‘legal or before the ‘‘General Exclusions’’ section. leave and no docking policies equitable interest.’’ Moving the The commenter suggested that the established by collective bargaining examples could create confusion ‘‘loan’’ example be removed from the agreements, practice under such because the term first appears in Part A instruction regarding completing agreements, or policy, custom, or of the form. While they contain separate Parts A, B or C (page 4, right practice adopted by an employer examples of Part B businesses, the term column), because its inclusion here may without regard to an employee’s ‘‘legal or equitable interest’’ appears also cause confusion for filers because of the position with a union. in Part A, and the Department believes final rule’s general exclusion for Since the first Part A Exclusion refers that definitions should be placed in the reporting bona fide loans. Instead, the to ‘‘bona fide investments,’’ this term is part of the instructions where the term commenter suggested using another defined in this section. The definition first appears. reportable receipt, such as a ‘‘gift,’’ in for ‘‘bona fide investment’’ is the example. The Department has made unchanged from the 2007 rule. The PART B (ITEMS 8–12): BUSINESS this change in order to improve clarity. instructions here advise that filers should not include bank account In the revised instructions, the filer is instructed: PART A (ITEMS 6 AND 7): numbers, policy numbers, social REPRESENTED EMPLOYER security numbers, or similar identifying Complete Part B if you held an interest in information in completing the form. or derived income or other benefit with The revised instructions for Part A In the revised instructions, the monetary value, including reimbursed present information on how to complete following definitions are presented in expenses, from a business (1) A substantial items 6 and 7, which pertain to the connection with Information item 7: part of which consists of buying from, selling or leasing to, or otherwise dealing with the Represented Employer. Specifically, the ‘‘arrangement,’’ ‘‘benefit with monetary instructions state: ‘‘Complete Part A if business of an employer whose employees value,’’ ‘‘income,’’ and ‘‘legal or your labor organization represents or is you (1) Held an interest in, (2) engaged equitable interest.’’ All of these actively seeking to represent, or (2) any part in transactions or arrangements definitions are unchanged from the 2007 of which consists of buying from or selling (including loans) with, or (3) derived rule. A clarifying note relating to the or leasing directly or indirectly to, or income or other economic benefit of definition of ‘‘arrangement’’ has been otherwise dealing with your labor monetary value from, an employer revised to eliminate an example that is organization or with a trust in which your whose employees your labor irrelevant to the definition. labor organization is interested. Report organization represents or is actively A commenter suggested that the payments received as director’s fees, seeking to represent.’’ The instructions definition of ‘‘income’’ in the Part A, including reimbursed expenses. state that payments received as item 7 instruction (page 6) be modified Definitions for ‘‘substantial part’’ and ‘‘director’s fees’’ must be reported. This to reference the exclusion of payments ‘‘dealing’’ are provided. These requirement was contained in the 2007 and benefits received as a ‘‘bona fide definitions are unchanged from the 2007 instructions. employee’’ (page 5). The commenter rule. Next, the definition for ‘‘actively explained its view that defining The subsection, Part B Exclusions, seeking to represent’’ is provided. This ‘‘income’’ as ‘‘all income from whatever lists items that do not need to be definition has been slightly revised in source derived, including but not reported in Part B. Two of the Part B response to a comment by a federation limited to, compensation for services’’ exclusions are retained from the 2007 of labor unions. As explained earlier in could be confusing for filers as it rule (relating to holdings, transactions this preamble, the change adds clarity to appears to contradict the ‘‘bona fide and income from bona fide investments the definition, which requires concrete employee’’ exclusion. The Department in securities traded on a national steps towards organizing. The disagrees. Because the exclusions, securities exchange and other Department has not made any including those paid to filers as bona designated securities; and holdings or substantive changes to the definition as income of $1,000 or less from bona fide some commenters had suggested. 56 The exclusions, as published in the investments in other securities). These The subsection, Part A Exclusions, instructions to the 2010 NPRM are identical to two Part B exclusions are the same as those in the instant rule. See 75 FR 48450. The lists items that do not need to be description of the exclusions in the preamble to the the exclusions set forth in (i) and (ii) in reported in Part A. The first three NPRM, however, did not accurately summarize the Part A. However, this rule excepts from exclusions—(i), (ii), and (iii)—are instructions. See 75 FR 48434. reporting marketplace transactions from

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bona fide credit institutions, as The italicized language represents a employer whose employees your labor explained in greater detail in section III, change from the 2007 instructions, as organization represents or actively seeks to part C, of this notice. Specifically, the explained in section III, part D, of this represent. revised instructions read: rule.58 The Department removed ‘‘labor The Department believes that the Bona fide loans. Do not report bona organizations’’ and ‘‘trusts in which 2007 rule did not adequately justify the fide loans, including mortgages, your labor organization is interested’’ removal of this exemption. Further, received from national or state banks, from the scope of Part C, as explained interest on bonds or dividends on stock credit unions, savings or loan in section III, part D, of this preamble. are routine business transactions which associations, insurance companies, or The subsection, Part C Exclusions, do not ordinarily raise conflict-of- other bona fide credit institutions, if the lists items that do not need to be interest questions. Their inclusion loans are based upon the credit reported in Part C. The first would increase the burden on union institution’s own criteria and made on administrative exemption in Part C— officials, without any apparent benefit terms unrelated to your status in the relating to payments of the kind referred to the public. Indeed, the reporting of labor organization. Additionally, do not to in LMRA section 302(c)—remains non conflict-of-interest payments could report other marketplace transactions substantially the same as that in the hide from scrutiny those payments that with such bona fide credit institutions, 2007 instructions; the only change is are in need of transparency. Finally, in such as credit card transactions that LMRA section 302(c) is not quoted order to ensure that actual or potential (including unpaid balances) and interest in the instructions (instead, the reader is conflict-of-interest payments are and dividends paid on savings accounts, directed to a later part of the reported, the Department has provided checking accounts or certificates of instructions where this section is set two qualifications on this exemption: deposit if the payments and transactions forth in full). the payments must be received under are based upon the credit institution’s The second administrative exemption circumstances and terms unrelated to own criteria and are made on terms in Part C—relating to bona fide loans, the recipient’s status in a labor unrelated to your status in the labor interests, or dividends from a bona fide organization and the issuer of such organization. credit institution—is modified slightly securities is not an enterprise in Additionally, specific instructions are from the 2007 rule; specifically, the competition with the represented provided on how to complete items 8 following sentence, present in the 2007 employer. through 12, which are described in the instructions, is not included in the A federation of unions suggested that above subsection, Revised Form. revised instructions: ‘‘This exception ‘‘payments from trusts or other labor does not apply to national or state organizations’’ should be included as a PART C (ITEMS 13 AND 14): OTHER banks, credit unions, savings or loan fourth express exclusion from Part C, EMPLOYER OR LABOR RELATIONS associations, insurance companies, or and argued that including this express CONSULTANT other bona fide credit institutions that exclusion will eliminate confusion In the revised instructions, the filer is constitute a ‘trust in which your labor created by the Department’s 2007 instructed: organization is interested.’ ’’ Frequently Asked Questions (FAQs 45, Accordingly, this rule excepts from 46, 48, 51–53 and 55), which indicated Complete Part C if you, your spouse, or reporting under Part C: your minor child received, directly or that such payments may be reportable. indirectly, any payment of money or other (ii) Bona fide loans (including mortgages), The Department is persuaded by this thing of value (including reimbursed interest or dividends from national or state suggestion, as it adds clarity to the expenses) from any employer (other than a banks, credit unions, savings or loan potential filer on this issue. Thus, the Represented Employer under Part A or associations, insurance companies, or other Department has added a fourth Business covered under Part B above) from bona fide credit institutions, if such loans, exclusion to Part C, specifying that whom a payment would create an actual or interest or dividends are based upon the credit institution’s own criteria and made on payments received from a section 3(l) potential conflict between these financial trust or labor organization are not interests and the interest of your labor terms unrelated to your status in a labor organization or your duties to your labor organization. Additionally, do not report reportable. Also, in response to the organization. Such employers include, but other marketplace transactions with such comment, the Department clarifies that are not limited to, an employer in bona fide credit institutions, such as credit this rule rescinds any example in the competition with an employer whose card transactions (including unpaid balances) 2007 instructions or FAQs that employees your labor organization represents and interest and dividends paid on savings indicated that payments from trusts are or whose employees your union is actively accounts, checking accounts or certificates of reportable.59 seeking to represent, if you are involved with deposit if the payments and transactions are based upon the credit institution’s own Additionally, specific instructions are the organizing, collective bargaining, or provided on how to complete items 13 contract administration activities or possess criteria and are made on terms unrelated to significant authority or influence over such your status in the labor organization. and 14, which are described in the activities. You are deemed to have such The third administrative exemption in above subsection, Revised Form. The instructions retain the following authority and influence if you possess Part C returns to the Department’s requirements that an official report: authority by virtue of your position, even if historical interpretation, exempting: you did not become involved in these • Any payment of money or other activities. Additionally, complete Part C if (iii) Interest on bonds or dividends on thing of value from a labor relations you received a payment of money or other stock, provided such interest or dividends consultant to a Part C employer; thing of value from a labor relations are received, and such bonds or stock have • Payments from an employer that is consultant to a Represented Employer or Part been acquired, under circumstances and a not-for-profit organization that C employer.57 terms unrelated to your status in a labor organization and the issuer of such securities receives or is actively and directly soliciting (other than by mass mail, 57 As stated earlier in the preamble to this rule, is not an enterprise in competition with the the NPRM stated, ‘‘between your financial interests telephone bank, or mass media) money, * * *.’’ The Department has modified this phrase 58 The Department notes that this quoted language to ‘‘between these financial interests,’’ so filers are is identical to the language in the proposed 59 See n. 12 herein, which discusses the impact aware that they must look at the payments and instructions see 75 FR 48450. The language was of the final rule on FAQs issues in connection with interests of their spouse and minor children as well incorrectly set forth in the discussion of this point the 2007 rule and examples in the instructions to as their own. in the NPRM. See 75 FR 48434. the 2007 form.

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donations, or contributions from the reducing costs, of harmonizing rules, disclosure, while mitigating burden on official’s union; and and of promoting flexibility. This rule labor organization officers and • Any payments from an employer has been designated a ‘‘significant employees by eliminating reporting on (not covered by Parts A or B), or from regulatory action’’ although not matters without demonstrated utility. any labor relations consultant to an economically significant, under section The Form LM–30 provides employer, for the following purposes: 3(f) of Executive Order 12866. transparency for those financial (1) Not to organize employees; Accordingly, the rule has been reviewed interests of union officers and (2) To influence employees in any by the Office of Management and employees that may pose conflicts way with respect to their rights to Budget. between their own financial interests organize; In the Paperwork Reduction Act and their duty to their union and its (3) To take any action with respect to (PRA) analysis below, the Department members. The Act requires the reports the status of employees or others as estimates that the rule will result in a to be made available to the public. The members of a labor organization; total reporting and recordkeeping reports allow union members to view (4) To take any action with respect to burden on filing labor organization the information needed by them to bargaining or dealing with employers officers and employees of 2,898 hours monitor their union’s affairs and to whose employees your organization and a monetary burden on labor make informed choices about the represents or seeks to represent; and organization officers and employees of leadership of their union and its (5) To influence the outcome of an approximately $138,621, based on the direction. Accurate disclosure and internal union election. value of a filer’s time. This represents a increased transparency promote the See 72 FR 36128, 36130, 36173. 10,934 hour reduction from the 13,832 unions’ own interests as democratic hours estimated in the 2007 rule for Remainder of Instructions institutions and the interests of the filing labor organization officers and public and the government. Financial The instruction for item 15, Signature employees, and a $170,386 reduction in disclosure deters fraud and self-dealing and Verification, states that the monetary burden from the estimated and facilitates the discovery of such completed Form LM–30 must be signed $309,007 in the 2007 rule. See 72 FR misconduct when it does occur. 36157. This analysis is intended to by the officer or employee and that The revised financial disclosure form address the analysis requirements of forms submitted electronically must use will promote increased compliance with both the PRA and the Executive Orders. electronic signatures. The instructions the statute by clarifying the form and indicate that the filer must enter the The following is a summary of the need for and objectives of the rule. A instructions, organizing the information telephone number used by the filer to in a more useful format, and modifying conduct official business, and note that more complete discussion of various aspects of the proposal is found it to better meet the requirements of the the filer does not need to report a LMRDA and the Department’s policy private, unlisted telephone number. elsewhere in the preamble. The LMRDA was enacted to protect judgments consistent with its discretion The revised instructions then feature: under the Act. ‘‘Selected Definitions from the Labor- the rights and interests of employees, labor organizations, and the public Published at the end of this rule are Management Reporting and Disclosure the revised Form LM–30 and Act of 1959, as Amended (LMRDA)’’ generally as they relate to the activities of labor organizations, employers, labor instructions. The revised Form LM–30 [LMRDA section 3]; ‘‘Related Provisions and instructions also will be made of the Labor-Management Reporting and relations consultants, and labor organization officers, employees, and available via the Internet. The Disclosure Act of 1959, as Amended information collection requirements (LMRDA)—Report of Officers and representatives. The LMRDA includes financial reporting and disclosure contained in this rule have been Employees of Labor Organizations’’ submitted to OMB for approval. [LMRDA section 202]; Section 302(c) of requirements for labor organizations and others as set forth in Title II of the Act. the Labor Management Relations Act, Unfunded Mandates Reform See 29 U.S.C. 431–36, 441. The 1947, as Amended [Sec. 8(c) of the Department has developed several forms This rule will not include any Federal National Labor Relations Act, as to implement the union annual mandate that may result in increased Amended]; and an ‘‘If You Need reporting requirements of the LMRDA. expenditures by State, local, and tribal Assistance’’ section, which includes a Under section 202 of the Act, 29 U.S.C. governments, in the aggregate, of $100 list of OLMS field offices and explains 432, union officers and employees are million or more, or in increased the information available on the OLMS required to file reports if they, or their expenditures by the private sector of Web site. This information is only spouses or minor children, engage in $100 million or more. slightly changed from the 2007 certain transactions or have financial instructions. Small Business Regulatory Enforcement holdings that may constitute a conflict Fairness Act of 1996 V. Regulatory Procedures of interest. The Department has developed the Form LM–30, Labor This rule is not a major rule as Executive Orders 12866 and 13563 Organization Officer and Employee defined by section 804 of the Small Executive Orders 13563 and 12866 Report, to implement section 202. Business Regulatory Enforcement direct agencies to assess all costs and This rule modifies the Form LM–30, Fairness Act of 1996. This rule will not benefits of available regulatory as last revised in 2007. See 72 FR 36106 result in an annual effect on the alternatives and, if regulation is (July 2, 2007). As discussed above, the economy of $100,000,000 or more; a necessary, to select regulatory revised form has been simplified and major increase in costs or prices; or approaches that maximize net benefits will no longer have to be filed by certain significant adverse effects on (including potential economic, individuals, notably stewards, and competition, employment, investment, environmental, public health and safety certain interests and transactions, productivity, innovation, or on the effects, distributive impacts, and including most bona fide loans, will not ability of the United States-based equity). Executive Order 13563 have to be reported. The rule is part of companies to compete with foreign- emphasizes the importance of the Department’s efforts to meet the based companies in domestic and quantifying both costs and benefits, of goals of greater transparency and export markets.

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Executive Order 13132 (Federalism) this rule exclusively amends an about links between their employer or The Department has reviewed this information collection, all of the other entities and the union. This rule in accordance with Executive Order comments received by the Department tracking alone, the commenter states, 13132 regarding federalism and has in response to the NPRM addressed the would exceed the Department’s total determined that the rule does not have collection. A discussion of the burden estimate in the 2007 rule and the federalism implications. Because the comments that addressed all aspects of 2010 NPRM. The commenter also economic effects under the rule will not the collection other than the estimates that top-down reporting itself be substantial for the reasons noted Department’s burden estimate is could require 25 hours per year. Other above and because the rule has no direct provided above. Here the Department commenters urged the Department to effect on States or their relationship to provides a discussion of the comments modify or eliminate top-down reporting, the Federal government, the rule does that addressed the Department’s burden which they identified as the most not have ‘‘substantial direct effects on estimate. burdensome aspect of LM–30 reporting. the States, on the relationship between In response to the NPRM, the The Department has discussed and the national government and the States, Department received three comments responded to these comments at length or on the distribution of power and that addressed the Department’s burden earlier in the preamble and does not responsibilities among the various analysis in the NPRM. All three restate them here. levels of government.’’ comments were limited to the burden The Department believes that the associated with top-down reporting. NPRM reflects the best estimate of the Regulatory Flexibility Act Additionally, as noted in the preamble, burdens associated with completing the The Regulatory Flexibility Act of several commenters expressed support Form LM–30, as revised by this rule. 1980, 5 U.S.C. 601–612, requires for the Department’s proposals that, if The Department notes that none of the agencies to prepare regulatory flexibility adopted, would reduce the burden of commenters provided a detailed analyses, and to develop alternatives compliance with the Form LM–30 explanation as to how their estimates wherever possible, in drafting requirements. These proposals were derived, and notes that the time regulations that will have a significant included, in part, the return to the estimates provided for the pre-2007 impact on a substantial number of small historical position that union leave and form and the 25-hour estimate for top- entities, including ‘‘small businesses,’’ no docking payments were not down reporting seem very high, even for ‘‘small organizations,’’ and ‘‘small reportable and that stewards and other the most atypical situations and could governmental jurisdictions.’’ This rule representatives are not covered by the not reflect the average burden. The revises the reporting obligations of Form LM–30 reporting requirements by Department’s estimate is for an average union officers and employees, who, as virtue of their positions; and the filer. individuals, do not constitute small reporting exception for bona fide loans Further, the Department does not business entities. Accordingly, the final and other credit arrangements with most believe that many union officials will be rule will not have a significant credit institutions. Further, two required to file under the top-down economic impact on a substantial commenters who generally are opposed reporting framework, and those who do number of small business entities. to the Department’s proposals expressed file are already included within the Therefore, under the Regulatory the view that the 2007 rule did not NPRM’s estimate for the number of Flexibility Act, 5 U.S.C. 605(b), a impose any undue burden on union filers. (The Department notes that the regulatory flexibility analysis is not officers and employees. estimate for the number of filers does required. As discussed in the NPRM and in not include a breakdown of the type of earlier sections of this preamble, top- transaction being reported, such as a gift Paperwork Reduction Act down reporting concerns conflicts of or a security or other interest, nor does This rule establishes a new LM–30 interest that may arise between the it indicate whether or not the report is reporting form which constitutes a financial interests of officers and required pursuant to top-down ‘‘collection of information’’ within the employees of parent and intermediate reporting.) Further, none of the meaning of the Paperwork Reduction unions and business dealings involving commenters challenged the estimated Act of 1995 (PRA) [44 U.S.C. 3501– their union’s subordinate affiliates or number of filers. 3520]. Under the PRA, an agency may employers whose employees are Moreover, the burden hour estimates not conduct or sponsor, and a person is represented by the affiliates. In the are averages for those who file. Some not required to respond to, a collection NPRM, the Department proposed to filers may take more or less time than of information unless it displays a require employees of parent and the estimated 90 minutes, and the currently valid control number assigned intermediate unions to report such Department considers the officials who by the Office of Management and interests; the 2007 rule excepted them file as a result of top-down reporting to Budget (OMB). In accordance with the from this requirement. be already included within the average PRA, the Department submitted an Two commenters expressed the view burden hour estimate. More specifically, information collection request (ICR) to that the increased burden associated the Department does not believe that OMB. On September 29, 2011, OMB with top-down reporting exceeded any many, if any, of those who file will take approved the ICR through September burden savings associated with the more than 90 minutes to complete the 30, 2014, and assigned OMB Control other changes proposed in the NPRM. form as a result of the top-down Number 1245–0005 to this version of One national union took issue with the requirements, nor does the Department the LM–30 reporting form. burden estimates in both the NPRM and consider the top-down reporting the 2007 rule, explaining that its own requirements as altering the 90-minute A. Review of the Comments Received in experience with the pre-2007 Form LM– average. The commenters did not Response to the NPRM Regarding the 30 revealed that 12 hours were needed provide any specific information Burden Estimate to complete that much simpler form. It challenging this conclusion. In accordance with the requirements estimated that it can take one hour per The Department believes that the of the PRA, the Department solicited week for ‘‘organizing and categorizing concerns regarding the burden public comments on the information receipts’’ and another hour per week to associated with top-down reporting collection included in the NPRM. Since confer with a spouse or minor child reflect, to a large extent, a

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misunderstanding about what types of and reporting of financial transactions application of the reporting payments, interests, and transactions that are actual or potential conflicts of requirements, such as the ‘‘substantial must be reported on the Form LM–30, interest, and most union officials will part’’ and ‘‘actively seeking to and how a union official would have few, if any, such transactions. represent’’ provisions. determine reportability. Moreover, as Regarding the comment that suggested D. Methodology for the Burden explained earlier in the preamble, many that the filers should be required to Estimates of the concerns about top-down report only top-down interests or reporting have been alleviated by payments for which they have ‘‘actual, The Department first estimated the specifying that top-down reporting is subjective’’ knowledge, the Department number of Form LM–30 filers that will required only of officers and those believes that top-down filers (parent and submit the revised form. Then, it employees with ‘‘significant authority or intermediate body union officers and estimated the number of minutes that influence’’ over lower-level unions. As those union employees with significant each filer will need to meet the stated in the preamble, it is helpful to authority or influence over lower-level reporting and recordkeeping burden look at the steps involved in unions) will generally have actual, imposed by the revised form, as well as determining whether a top-down report, subjective knowledge of the entity’s the total burden hours. The Department or any report, is owed. The first step is relationship with the union or next estimated the cost to each filer for for a union officer or employee to look represented employer, or will be in a meeting those burden hours, as well as at the types of interests held, income position to ascertain this information. the total cost to filers. The Federal costs and benefits received, and transactions Thus, filers will not generally need to associated with the revised rule were engaged in during the fiscal year. The contact lower levels of the union to also estimated. Please note that some of second step is to eliminate those that are determine reportability, or, if they do the burden numbers included in this exempted by the general exclusions, need to contact other levels of the PRA analysis will not add up due to such as publicly held stock, income union, they will be in position to rounding. Except as noted, the burden received by the union official as a bona effectively obtain any needed analysis in the final rule is substantively fide employee, and the de minimis information. identical to that set forth in the NPRM. threshold. This step will generally Regarding the comment that suggested that union officials have an ‘‘affirmative 1. Number of Revised Form LM–30 greatly reduce potential reportable Filers transactions. The third step is to obligation’’ to contact subordinate The Department estimates that 1,932 determine whether any remaining bodies of their union that do not have union officers and employees will financial transactions were derived from ‘‘systematic records,’’ the Form LM–30 submit the revised Form LM–30. This represented employers, as well as reporting requirements do not generally figure represents the total pre-2007 and service providers and vendors of the require union officials to contact lower 2007 Form LM–30 reports submitted union, their trusts, and represented level entities of the union. Further, all during Fiscal Year 2009. In that fiscal employers. As a part of this step, affiliated unions subject to section 206 year, the Department established an officers and certain employees of parent of the LMRDA must have adequate enforcement policy that enabled union and intermediate unions will also have records to ‘‘provide in sufficient detail’’ officers and employees to use either the to consider holdings in and payments the ‘‘necessary basic information and pre-2007 form or the more complex from entities that have relationships data’’ from which the annual financial disclosure forms (such as the Form LM– 2007 version in satisfying their with subordinate affiliates.60 Thus, 2, Form LM–3, and Form LM–4) reporting obligation under section 202 union officials, higher-level or not, have submitted to the Department can be of the LMRDA. no obligation to research each and every verified. relationship that a union has, at any Other commenters expressed concern 2. Hours To Complete and File Revised level, but, rather, only those that relate about the burden that an officer or Form LM–30: Reporting and to the few, if any, employers and employee of an international, national, Recordkeeping businesses identified in step three of the or intermediate union would face in The Department has estimated the process. determining whether he or she has number of minutes that each Form LM– The Department is unpersuaded by received a payment from a business a 30 filer will need for completing and the unsubstantiated assertion by one substantial part of which consists of filing the revised form (reporting commenter that the top-down burden dealing with an employer whose burden), as well as the minutes needed imposed on union employees exceeds employees the filer’s union represents to track and maintain records necessary any reduced burden associated with or is actively seeking to represent. to complete the form (recordkeeping other changes proposed by the NPRM. Regarding the application of the burden). The estimates are included in The Department also disagrees with the ‘‘substantial part’’ provision to top- Table 1, which describes the assertion that filers are required to track down reporting, the Department notes information sought by the revised form routine financial transactions. Rather, that this provision actually operates as and instructions, where the particular the Form LM–30 only requires tracking a general limitation on reporting that information is to be reported, if applies independently from top-down applicable, and the amount of time 60 A fourth step could involve review of activities to be reported pursuant to section 202(a)(6) in the requirements, as does the ‘‘actively estimated for completion of each item of ‘‘catch-all’’ Part C of the revised Form LM–30, but seeking to represent’’ condition for information. The revised reporting OLMS has limited the requirement to report in Part reporting interests in and payments regime more closely resembles the pre- C payments from employers in competition with from represented employers. Again, 2007 Form LM–30, in both form and represented employers to only those union officials with significant influence over organizing. This union officials are not generally content, than the 2007 form. eliminates the top-down issue involving such required to engage in research to Not all union officers and employees employers for most union officials. Further, identify potential conflict-of-interest will be required to file the Form LM–30, regarding payments from charities pursuant to relationships. Further, as explained nor will all of those who file need to section 202(a)(6) and Part C of the proposed form, any payments received as a bona fide employee and earlier in the preamble, filers should complete each Part of the form. as regular marketplace transactions would be request guidance from the Department if However, for purposes of assessing an excluded, pursuant to the statute. they are unable to determine the average burden per filer, the Department

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assumes that the average filer serves as recordkeeping requirements. organization, in item 5, as well as the an officer or employee for one labor Additionally, most of the financial contact information for the trust or organization, and that the filer receives books and records needed to complete employer with which the business reportable payments or interests for a the form are maintained in the filer’s deals, in item 10. The Department single entity on Parts A, B, and C, normal course of business, both union believes, however, that filers will need respectively. and personal. Finally, the 15 minutes five minutes, respectively, to enter the Additionally, the below estimates are accounts for the 5-year retention period contact information for the represented for all filers, including first-time filers required by statute. See section 206, 29 employer in item 6, the business that and subsequent filers. While the U.S.C. 436. deals with a labor organization, trust, or Department considered separately Reporting Burden. The total reporting employer in item 8, and the ‘‘other estimating burdens for first-time and burden of 75 minutes per respondent employer’’ or labor relations consultant subsequent filers, the nature of Form addressed in Table 1 reflects the time in item 13. Filers will need one minute LM–30 reporting militates against this required to read the Form LM–30 to complete item 9, which asks filers to approach. Union officers may serve for instructions to discover whether or not indicate whether the business identified relatively short periods of time and a report is owed and determine the deals with a labor organization, trust, or reportable transactions may not be correct manner to report the necessary employer. reported in subsequent years for a information. Of that total amount, it variety of reasons. Where the should be noted the Department Additionally, filers will need 3 Department has reduced burden estimates that the average filer will need minutes to enter the financial data estimates for subsequent year filings of 30 minutes to read the instructions, required in items 7, 12, and 14, and 3.5 LMRDA reports, it generally did so with which is substantially less than the 55 minutes to report the nature and value regard to required annual reports, minutes estimated for the 2007 Form of the dealings in item 11. The specifically labor organization annual LM–30. 72 FR 36157.61 This reduction Department also believes each filer will reports, Forms LM–2, LM–3, and LM–4. is due in part to the reduced scope of spend an average of 5 minutes to check In contrast, the Form LM–30 is only required reporting. In particular, the the answers. Finally, the Department required for union officers and Department has eliminated the estimates that a filer will utilize five employees in years that they engage in requirement to report union leave and minutes to check responses and review reportable transactions. Further, these no docking payments, bona fide loans, the completed report, and will require officials do not have the same and payments from trusts and unions two minutes to sign and verify the familiarity with reporting as other LM pursuant to section 202(a)(6). Further, report in item 15. For Form LM–2 Labor filers. See 72 FR 36157, n. 4. As such, the creation of a more concise and Organization Annual Report filers, the the burden estimates assume that the consolidated form and instructions, Department last year introduced a cost- union officer or employee has never with definitions and other explanations free and simple electronic filing and before filed a Form LM–30. placed in a more readily accessible signing protocol. The Department Recordkeeping Burden. The format, will enable filers to more intends to provide this feature to Form recordkeeping estimate of 15 minutes quickly ascertain the necessary LM–30 filers in 2012. For this reason, per filer represents a 5-minute change reporting requirements. the burden estimate remains constant from the 20-minute estimate for the In developing the 75-minute estimate, whether the form is electronically 2007 Form LM–30. 72 FR at 36157. This the Department also believes that the estimate reflects new exemptions from simple data entry required by items 1– signed, or signed by hand. reporting for union leave and no 3 will only require 30 seconds each. A As a result, the Department estimates docking payments, and mortgages and filer will be able to enter his or her own that a filer of the revised Form LM–30 other loans, as well as the decision to contact information in only two will incur 90 minutes in reporting and eliminate reporting from trusts and minutes, in item 4. Generally, filers will recordkeeping burden to file a complete unions under section 202(a)(6), which only need three minutes to enter contact form. This compares with the 2007 reduce the complexity of the information, such as for their labor estimate of 120 minutes per filer.

TABLE 1—REPORTING AND RECORDKEEPING BURDEN [In minutes]

Recurring Burden description Section of proposed form burden hours

Maintaining and gathering records ...... Recordkeeping Burden ...... 15 minutes. Reading of the instructions to determine applicability of the form and how to com- Report Burden ...... 30 minutes. plete it. Reporting LM–30 file number ...... Item 1 ...... 30 seconds. Reporting covered fiscal year ...... Item 2 ...... 30 seconds. Identifying if report is amended ...... Item 3 ...... 30 seconds. Reporting filer’s contact information ...... Item 4 ...... 2 minutes. Reporting labor organization contact information ...... Item 5 ...... 3 minutes. Part A: Reporting name and contact information for employer in Part A of form ..... Item 6 ...... 5 minutes. Part A: Reporting the nature of the interest, transaction, arrangement, benefit, or Items 7a and 7b ...... 3 minutes. income, as well as the amount, received from the employer identified in Part A.

61 Additionally, the Department estimates that those union officers and employees who are not required to file will spend ten minutes reading the instructions. This burden is not included in the total reporting burden, since these officials do not file and are thus not respondents.

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TABLE 1—REPORTING AND RECORDKEEPING BURDEN—Continued [In minutes]

Recurring Burden description Section of proposed form burden hours

Part B: Reporting contact information for business ...... Item 8 ...... 5 minutes. Part B: Identifying if the business deals with a labor organization, trust, or em- Item 9 ...... 1 minutes. ployer. Part B: Reporting the contact information for the trust or employer with which the Item 10 ...... 3 minutes. business deals. Part B: Reporting the nature and value of the dealings between the business and Items 11a and 11b ...... 31⁄2 minutes. employer, union, or trust. Part B: Reporting the nature and amount of interest held or income received from Items 12a and 12b ...... 3 minutes. the business. Part C: Reporting the contact information for the employer or labor relations con- Items 13a and 13b ...... 5 minutes. sultant, and identifying the entity as an employer or labor relations consultant. Part C: Reporting the nature and amount of payment from the employer or labor Items 14a and 14b ...... 3 minutes. relations consultant. Checking responses ...... N/A ...... 5 minutes. Signature and verification ...... Item 15 ...... 2 minutes.

Total Recordkeeping Burden Estimate Per Filer ...... 15 minutes.

Total Reporting Burden Estimate Per Filer ...... 75 minutes.

TOTAL BURDEN HOUR ESTIMATE PER FILER ...... 90 minutes.

Total Reporting and Recordkeeping many Form LM–30 reports are filed by derived from the Department’s Burden. As stated, the Department lower level labor organization officers Electronic Labor Organization Reporting estimates that there are 1,932 union and employees, whose labor System (e.LORS) included only officers and employees that will be organizations file the less detailed Form international or national unions and annually filing the Form LM–30. Thus, LM–3 and Form LM–4 Labor only those employee titles and gross the estimated recordkeeping burden for Organization Annual Reports, and who salary data from Form LM–2, Schedule all filers is 28,980 minutes (15 × 1,932 are often part-time officials earning 12 of those international/national = 28,980 minutes) or 483 hours (28,980/ lower salaries than parent body labor unions that included words like 60 = 483). The total estimated reporting organizations that file the more ‘‘national’’ or ‘‘international’’ and burden for all filers is 144,900 minutes comprehensive Form LM–2. However, ‘‘representative.’’ The Department then (75 × 1,932 = 144,900 minutes) or because only part-time annual salaries eliminated blank salary entries (either approximately 2,415 hours (144,900/60 are reported by part-time officers on the nothing was listed in the Form LM–2 or = 2,415 hours). The total estimated Form LM–3 (and individual salaries are a zero was listed) because there are a burden for all filers is, therefore, not reported on the LM–4), but not the variety of reasons why the salary can be 173,880 minutes or approximately 2,898 hours upon which those part-time blank or zero and their inclusion in the hours. See Table 2 below. annual salaries are based, it is calculation of the average would skew impractical to calculate an average the average calculation. Finally, the TABLE 2—TOTAL REPORTING AND hourly wage for union officers from the Department calculated the average RECORDKEEPING BURDEN FOR ALL Form LM–3. This contrasts with a Form hourly wage by dividing the average 1,932 ESTIMATED FILERS LM–2 filer, where it can be assumed annual salary by 2,080 hours (40 hours that the annual salaries for officers are per week times 52 weeks per year). Total Recordkeeping Bur- 483 hours. primarily for full-time duties, which Next, the Department increased these den. makes it possible to determine average figures by 43.00% to account for total Total Reporting Burden .... 2,415 hours. hourly wages. Therefore, the Form LM– compensation.62 Total Burden ...... 2,898 hours. 2 provides the Department with more The methodology and assumptions comprehensive data by which to are somewhat similar for the president 3. Calculation of Total Monetized ascertain a reasonable estimate of union and secretary-treasurers averages. Here, Burden Hours Costs for Labor officer and employee salaries. the Department had data from FY 2009 Organization Officers and Employees to The Department also assumes, as it for all Form LM–2 filers with $800,000 Complete the Revised Form LM–30 did for burden estimates under the pre- or more in annual receipts. The $800,000 figure was selected because it The Department estimates the dollar 2007 Form LM–30, that one-third of the represents roughly the average of all cost to filers to complete the Form LM– forms will be filed by union presidents, Form LM–2 filers, and we hypothesized 30 by using fiscal year (FY) 2009 data secretary-treasurers, and international that these larger than average Form LM– derived from Form LM–2, Labor representatives (the last designation as a Organization Annual Reports, filed with proxy for union employees), 62 See Employer Costs for Employee the Department pursuant to section 201 respectively. The Department derived Compensation Summary, from the Bureau of Labor of the LMRDA. The Form LM–2 is the the average hourly wage for each of Statistics (BLS), at http://www.bls.gov/news.release/ annual financial disclosure report filed these categories by utilizing data from ecec.nr0.htm. The Department increased the by the largest labor organizations, those FY 2009 Form LM–2 reports. average hourly wage rate for employees ($20.49 in 2008) by the percentage total of the average hourly with $250,000 or more in total annual With respect to the international compensation figure ($8.90 in 2008) over the receipts. The Department notes that representative analysis, the salary data average hourly wage.

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2 filers are more likely to have 5. Federal Costs Text of Rule presidents and secretary-treasurers who Finally, in its recent submission for file the Form LM–30. Accordingly, the Department amends revision of OMB #1245–0003 (formerly part 404 of 29 CFR Chapter IV as set As a result, the Department estimates OMB #1215–0188), which contains all forth below: that union presidents earn an average LMRDA forms (except the pre-2007 hourly wage of $34.65 ($49.55 after Form LM–30, 1245–0002, which was PART 404—LABOR ORGANIZATION adjusting by 43.00% for total approved under OMB #1215–0205, and OFFICER AND EMPLOYEE REPORTS compensation); union secretary- the 2011 Form LM–30), the Department treasurers, $31.87 ($45.57 after adjusting estimated that its costs associated with ■ 1. The authority citation for part 404 the LMRDA forms are $2,710,726 for the by 43.00% for total compensation); and is revised to read as follows: international representatives, $33.83 OLMS national office and $3,779,778 for the OLMS field offices, for a total Authority: Labor-Management Reporting ($48.38 after adjusting by 43.00% for Federal cost of $6,490,504. Federal and Disclosure Act Secs. 202, 207, 208, 73 total compensation). The Department estimated costs include costs for Stat. 525, 529 (29 U.S.C. 432, 437, 438); also estimated that each of these contractors and operational expenses Secretary’s Order No. 08–2009, Nov. 6, 2009, categories of union officials accounted such as equipment, overhead, and 74 FR 58835 (Nov. 13, 2009). for one-third of the Form LM–30 reports printing as well as salaries and benefits § 404.1 [Amended] submitted and thus one-third of the total for the OLMS staff in the National Office burden hours (2,898 hours divided by and field offices who are involved with ■ 2. In § 404.1, paragraph (f) is removed three equals 966). Therefore, the total reporting and disclosure activities. and paragraphs (g) through (j) are × cost was $138,621 (966 $49.55 = These estimates include time devoted redesignated as (f) through (i), × $47,865.30; 966 $45.57 = $44,020.62; to: (a) Receipt and processing of reports; respectively. and 966 × $48.38 = $46,735.08). The (b) disclosing reports to the public; (c) estimated cost per filer is approximately obtaining delinquent reports; (d) Signed in Washington, DC, this 6th day of October, 2011. $71.75 ($47,865.30 + $44,020.62 + reviewing reports, (e) obtaining $46,735.08 = $138,621; $138,621/1932 = amended reports if reports are John Lund, $71.75). determined to be deficient; and (f) Director, Office of Labor-Management providing compliance assistance Standards. 4. Other Costs (Start-up, Capital, training on recordkeeping and reporting Maintenance, and Operations) Note: The following appendix will not requirements. appear in the Code of Federal Regulations. The Department associates no costs List of Subjects in 29 CFR Part 404 Appendix: Revised Form and with this information collection, beyond Labor union officers and employees; Instructions the value of a filer’s time. reporting and recordkeeping requirements. BILLING CODE 4510–CP–P

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[FR Doc. 2011–26816 Filed 10–25–11; 8:45 am] BILLING CODE 4510–CP–C

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Part IV

Department of Transportation

Federal Motor Carrier Safety Administration 49 CFR Parts 360, 365, 366, et al. Unified Registration System; Proposed Rule

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DEPARTMENT OF TRANSPORTATION see the Public Participation heading VI. Rulemaking Analyses and Notices under the Supplementary Information I. Legal Basis for the Rulemaking Federal Motor Carrier Safety caption of this document. Note that all Administration comments received will be posted This rulemaking is in response to sec. without change to http://www. 103 of the ICC Termination Act of 1995 49 CFR Parts 360, 365, 366, 368, 385, regulations.gov, including any personal (ICCTA) [Pub. L. 104–88, 109 Stat. 888, 387, 390 and 392 information provided. Please see the December 29, 1995] and title IV of the Safe, Accountable, Flexible, and [Docket No. FMCSA–97–2349] Privacy Act heading below. Privacy Act: Anyone is able to search Efficient Transportation Equity Act: A RIN 2126–AA22 the electronic form of all comments Legacy for Users (SAFETEA–LU) [Pub. received into any of our dockets by the L. 109–59, 119 Stat. 1714, August 10, Unified Registration System name of the individual submitting the 2005]. This rulemaking action is consistent with the requirements of 31 AGENCY: Federal Motor Carrier Safety comment (or signing the comment, if Administration (FMCSA), DOT. submitted on behalf of an association, U.S.C. 9701 and 49 U.S.C. 31136(a). business, labor union, etc.). You may In the ICCTA, Congress enacted 49 ACTION: Supplemental Notice of review the US Department of U.S.C. 13908 directing the Secretary of Proposed Rulemaking (SNPRM). Transportation’s DOT Privacy Act Transportation (the Secretary), in SUMMARY: The FMCSA amends its System of Records Notice for the DOT cooperation with the States, and after proposal regarding establishment of the Federal Docket Management System notice and opportunity for public Unified Registration System (URS) published in the Federal Register on comment, to issue regulations to replace required by the ICC Termination Act of January 17, 2008 (73 FR 3316), or you the existing information systems listed 1995 (ICCTA) and originally announced may visit http://edocket.access.gpo.gov/ below with a single, online, Federal in a May 19, 2005 notice of proposed 2008/pdf/E8-785.pdf. system: 1. The current Department of rulemaking (NPRM). URS is the Docket: For access to the docket to Transportation (USDOT) identification replacement system for several existing read background documents or number system; registration and information systems for comments received, go to http://www. 2. The single State registration system motor carriers, property brokers, and regulations.gov or the street address (SSRS) under [49 U.S.C.] section 14504; freight forwarders under FMCSA listed above. Follow the online instructions for accessing the dockets. 3. The registration system contained jurisdiction. This SNPRM responds to in 49 U.S.C. chapter 139; and comments to the 2005 URS NPRM, FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Transportation 4. The financial responsibility incorporates new proposals information system under section implementing requirements imposed by Specialist, Driver and Carrier Operations Division, (202) 366–2722, or 13906. final rules published after the 2005 URS Congress also directed the Secretary by e-mail at: [email protected]. NPRM, and includes new proposals to to consider whether to integrate the Business hours are from 8 a.m. to 4:30 implement certain provisions of the requirements of 49 U.S.C. 13304 p.m. ET, Monday through Friday, except Safe, Accountable, Flexible, Efficient regarding service of process in court Federal holidays. Transportation Equity Act: A Legacy for proceedings into the new system. SUPPLEMENTARY INFORMATION: Users (SAFETEA–LU). The Agency Congress specified that the new URS believes the proposed URS would Public Participation should serve as a clearinghouse and improve the registration process for depository of information on, and motor carriers, property brokers, freight The Federal eRulemaking Portal (http://www.regulations.gov) is available identification of, all foreign and forwarders and other entities that domestic motor carriers, property register with FMCSA. 24 hours each day, 365 days each year. You can get electronic submission and brokers, freight forwarders, and others DATES: You must submit comments on retrieval help and guidelines under the required to register with the USDOT as or before December 27, 2011. ‘‘How to Use This Site’’ menu option. well as information on safety fitness and ADDRESSES: You may submit comments Comments received after the comment compliance with required levels of identified by Federal Docket closing date will be included in the financial responsibility. The language of Management System (FDMS) Docket ID docket and we will consider late 49 U.S.C. 13908(c) also authorized the Number FMCSA–97–2349 by any of the comments to the extent practicable. The Secretary to ‘‘establish, under section following methods: FMCSA may, however, issue a final rule 9701 of title 31 [of the U.S. Code], a fee • Federal eRulemaking Portal: Go to at any time after the close of the system for registration and filing http://www.regulations.gov. Follow the comment period. evidence of financial responsibility online instructions for submitting under the new system under subsection comments. Preamble Table of Contents (a). Fees collected under the fee system • Mail: Docket Management Facility: The following is an outline of the shall cover the costs of operating and U.S. Department of Transportation, 1200 preamble. upgrading the registration system, New Jersey Avenue, SE., West Building I. Legal Basis for the Rulemaking including all personnel costs associated Ground Floor, Room W12–140, II. Regulatory History with the system.’’ Washington, DC 20590–0001. A. Advance Notice of Proposed The Unified Carrier Registration Act • Hand Delivery or Courier: West Rulemaking of 2005, subtitle C of title IV of Building Ground Floor, Room W12–140, B. Notice of Proposed Rulemaking SAFETEA–LU, modified the 1200 New Jersey Avenue, SE., between III. Discussion of the Supplemental Notice of requirements for a unified registration 9 a.m. and 5 p.m. ET, Monday through Proposed Rulemaking system for motor carriers contained in Friday, except Federal holidays. A. New Regulatory Drafting Strategy ICCTA. In particular, SAFETEA–LU • B. The Proposal Fax: 202–493–2251. IV. Regulatory Evaluation of the URS changed the scope of the Secretary’s Instructions: For detailed instructions SNPRM: Summary of Benefits and Costs responsibility for the development of a on submitting comments and additional V. Appendix to the Preamble—Proposed registration system to replace the SSRS. information on the rulemaking process, Form MCSA–1 and Instructions It also modified the requirement that

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fees collected under the new system Title 31 U.S.C. 9701 (the so-called the Federal Highway Administration cover the costs of operating and ‘‘User Fee Statute’’) establishes general (FMCSA’s predecessor agency) issued upgrading the registration system and authority for agencies to ‘‘charge for a an advance notice of proposed placed limitations on certain fees that service or thing of value provided by the rulemaking (ANPRM) announcing plans the Agency could charge. Section 4304 Agency.’’ Accordingly, FMCSA to develop a single, online, Federal of SAFETEA–LU reiterated the proposes to charge fees under URS that information system (61 FR 43816, congressional requirement for a single, will enable the Agency to recoup costs August 26, 1996). The ANPRM solicited Federal, online system to replace the associated with processing registration specific detailed information from the four individual systems identified under applications and administrative filings. public about each of the systems to be 49 U.S.C. 13908 and also mandated Title 49 U.S.C. 13908(d) requires replaced by the URS, the conceptual inclusion of the service of process agent establishment of registration fees that, as design of the URS, uses and users of the systems under 49 U.S.C. 503 and 13304. nearly as possible, cover the costs of information to be collected, and SAFETEA–LU refers to the Federal processing the registration, provided the potential costs. online replacement system as the fees do not exceed $300. Unified Carrier Registration System. The Section 206 of the Motor Carrier B. Notice of Proposed Rulemaking Agency considers the URS announced Safety Act of 1984 [Pub. L. 98–554, title in the May 2005 NPRM to be the II, 98 Stat. 2832, October 30, 1985, 49 On May 19, 2005, FMCSA published Unified Carrier Registration System.1 U.S.C. App. 2505, recodified at 49 an NPRM describing a proposal to Congress also repealed the statutory U.S.C. 31136] requires the Secretary to merge all of the prescribed information provisions of 49 U.S.C. 14504 governing prescribe regulations on commercial systems except SSRS into a unified, SSRS. (SAFETEA–LU section 4305(a)).2 motor vehicle safety. The regulations online, Federal system (70 FR 28990) as The legislative history indicates that the shall prescribe minimum safety set forth below. purpose of the UCR Plan and Agreement standards for commercial motor is both to ‘‘replace the existing outdated vehicles (CMVs). At a minimum, the 1. Entities To Be Included in the Unified system [SSRS]’’ for registration of regulations shall ensure that: (1) CMVs Registration System are maintained, equipped, loaded, and interstate motor carrier entities with the The Agency proposed to include the operated safely; (2) the responsibilities States and to ‘‘ensure that States don’t following entities in the Unified imposed on operators of CMVs do not lose current revenues derived from Registration system: (1) All for-hire 3 impair their ability to operate the SSRS’’ (S. Rep. 109–120, at 2 (2005)). motor carriers (including those exempt The statute provided for a 15-member vehicles safely; (3) the physical from the 49 U.S.C. chapter 139 Board of Directors for the UCR Plan and conditions of operators of CMVs is Agreement (Board) appointed by the adequate to enable them to operate the registration requirements), (2) private Secretary of Transportation. The statute vehicles safely; and (4) the operation of motor carriers, (3) property brokers, and specified that the Board should consist CMVs does not have a deleterious effect (4) freight forwarders. of Federal, State and motor carrier on the physical condition of the In the NPRM, the Agency proposed to industry representatives. The operators (49 U.S.C. 31136(a)). exclude the following entities from the establishment of the board was This SNPRM is intended to streamline Unified Registration System: (1) Mexico- announced in the Federal Register on the existing registration process and domiciled motor carriers applying to May 12, 2006 (71 FR 27777). The ensure that FMCSA can more efficiently engage in long-haul operations, (2) Board’s duties include issuing rules and track motor carriers, freight forwarders, applicants for hazardous materials regulations, recommending fee levels for brokers, intermodal equipment safety permits to haul certain hazardous the system, and designating a revenue providers and cargo tank facilities. It materials under 49 CFR part 385, implements the mandate under sec. depository for the new system. On subpart E, and (3) cargo tank facilities 31136(a)(1) that FMCSA’s regulations Friday, August 24, 2007, the Agency required to register with FMCSA ensure that CMVs are maintained and published a final rule establishing pursuant to 49 CFR 107.502 and 49 initial fees for 2007 and a fee bracket operated safely. This proposal imposes no operational responsibilities on U.S.C. 5108. The Agency requested structure for the Unified Carrier comment on whether the unique Registration Agreement in the Federal drivers. Therefore, this proposed regulation would not impair a driver’s conditions of these entities warranted Register (72 FR 48585). The FMCSA retaining separate registration subsequently adjusted the UCR ability to operate vehicles safely (sec. 31136(a)(2)), would not impact the procedures and application forms or Agreement fees and fee bracket structure whether they also should be included in in a final rule dated April 27, 2010 (74 physical condition of drivers (sec. the Unified Registration System. The FR 21993). 31136(a)(3)), and would not have a SAFETEA–LU also amended several deleterious effect on the physical Agency also solicited information on definitions that affect the coverage of condition of drivers (sec. 31136(a)(4)). how to most effectively integrate the systems under consideration for merger the URS, amended certain financial II. Regulatory History responsibility requirements, and with URS. A. Advance Notice of Proposed eliminated the Agency’s authority to 2. Proposed User Fees collect certain fees. Today’s proposal Rulemaking incorporates new requirements imposed In response to the ICCTA mandate to The Agency proposed user fees as set by SAFETEA–LU. develop a unified registration system, forth in the Table to § 360.401 below:

1 The Unified Carrier Registration (UCR) Agreement are not the responsibility of FMCSA. 2 This repeal became effective on January 1, 2007, Agreement mandated under section 4305 of However, as provided by 49 U.S.C. 13908(b), in accordance with section 4305(a). SAFETEA–LU (which enacted 49 U.S.C. 14504a) is information about the compliance of entities subject 3 The Senate bill’s provisions were enacted ‘‘with the replacement for the Single State Registration to the UCR Agreement will be available through the modifications.’’ H. Conf. Rep. No. 109–203, at 1020 System authorized by former 49 U.S.C. 14504. URS when that system has been developed. Registration and payment of fees under the UCR (2005).

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TABLE TO § 360.401—UNIFIED REGISTRATION SCHEDULE OF FEES

You must pay Registration FMCSA

If you: (a) Are subject to the registration requirements under § 360.3 and are requesting a new application to operate in interstate $200. commerce.

Other Services

If you file a: (b) Biennial update of registration ...... No cost. (c) Request for change of name, address, or form of business ...... No cost. (d) Request for cancellation of registration ...... No cost. (e) Request for registration reinstatement ...... $100. (f) Designation of process agent ...... $10.

Additionally, the Agency proposed under § 360.419(a) through (d) as fees for record searching, reviewing, follows: copying, certifying, and related services

Description Fee

(a) Certificate of the Director, Office of Information Management, as to the authenticity of documents ...... $12. (b) Service involved in locating records to be certified and determining their authenticity, including inci- $21 per hour. dental clerical and administrative work. (c) Photocopies of public documents ...... $.80 per letter- or legal-size page; $5 minimum. (d) Search and copying services requiring automated data processing services (ADP), as follows: (1) Professional staff time to fulfill an ADP request ...... $50 per hour. (2) Computer searches ...... Current rate for computer service as determined by the Office of Information Management (MC– RIS). (3) Printing ...... Paper—$.10 per page with a $1 minimum; Electronic media— Agency’s cost.

3. Financial Responsibility referred to as ‘‘exempt for-hire motor Web-Based Filings by Insurers, Surety Bodily Injury and Property Damage carriers’’) and to private interstate motor Companies, and Financial Institutions Insurance (BI & PD) Filing Requirement carriers transporting hazardous The Agency proposed to require materials. All such carriers already are financial responsibility service Existing regulations prescribe required by statute (49 U.S.C. 31138 and providers such as insurers to file minimum levels of financial 31139) and regulations (49 CFR part evidence of financial responsibility responsibility for certain motor carrier 387) to obtain and maintain BI & PD using a Web-based (HTML) format. classifications. However, only for-hire insurance. The NPRM merely proposed These filings would include evidence of motor carriers, brokers and certain to require the filing of evidence of certificates of insurance, proof of 4 freight forwarders that are subject to financial responsibility with FMCSA. qualification to self-insure, the chapter 139 registration The Agency believes the proposed filing endorsements, surety bonds, trust-fund requirements must file evidence of requirement would provide the public agreements, household goods (HHG) financial responsibility with FMCSA as with assurances that all for-hire motor cargo insurance, and notices of a precondition to receiving and holding carriers and private carriers transporting cancellations. The FMCSA believes chapter 139 operating authority. hazardous materials in interstate Web-based filings will promote Evidence of financial responsibility may commerce have the financial means to efficiencies for FMCSA, insurers, be in the form of certificates of compensate members of the public for sureties, financial institutions, and the insurance, surety bonds, proof of injuries or damages caused by public. The NPRM solicited comment qualifications as a self-insurer, negligence. These filings also would on whether the proposed mandatory endorsements, or trust agreements, as increase public accessibility to Web-based filing would be a significant appropriate. insurance information and would burden on small insurers, surety The Agency proposed to retain the enable FMCSA to more effectively track companies, and financial institutions. financial responsibility filing insurance cancellations. Also, the Agency invited comments, requirement for these entities and to The filing requirement would not be ideas and suggestions regarding a extend them to for-hire motor carriers extended to motor carriers transporting potential phase-in approach as opposed exempt from the chapter 139 hazardous materials in intrastate to immediate mandatory on-line filing. registration requirements (hereafter commerce; these carriers would Cargo Insurance. The NPRM included continue to maintain evidence of a proposal to eliminate the cargo 4 Household goods freight forwarders performing financial responsibility at their insurance requirement for all entities transfer, collection and delivery service. principal place of business. except HHG motor carriers and HHG

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freight forwarders. Current 49 CFR proposed to eliminate the cargo Self-Insurance Program. The Agency 387.303(c) and 387.405(a) require non- insurance requirement for all entities proposed several changes to the self- exempt for-hire motor common carriers except HHG carriers and HHG freight insurance program, including changes of property and freight forwarders, forwarders based on the assumption that to the fees charged to applicants seeking respectively, to maintain cargo most for-hire motor carriers and freight approval to self-insure and changes to insurance in the amount of $5,000 per forwarders carry cargo insurance well the fees associated with annual and vehicle, and $10,000 per occurrence, above FMCSA limits because their quarterly reporting by entities approved and to file evidence of coverage with shipper clients generally require it as a to self-insure. The Agency announced FMCSA. Contract carriers are not condition of doing business. However that it would continue its practice of subject to a requirement to maintain or the Agency deemed it in the public processing and approving each motor file evidence of cargo insurance. interest to retain the cargo insurance carrier self-insurance application on a However, SAFETEA–LU prohibited requirement for household goods motor case-by-case basis. FMCSA from registering motor carriers Insurance Filing Fees. The Agency carriers and household goods freight as ‘‘common’’ or ‘‘contract’’ carriers, proposed insurance filing fees as set forwarders. effective January 1, 2007. The Agency forth in the Table to § 360.415(b):

TABLE TO § 360.415(B)—INSURANCE FILING FEES

(1) Financial responsibility service provider filing evidence of minimum level of insurance, surety bond, or trust fund agree- ment ...... $10 (2) Qualification as a self-insurer for bodily injury, property damage, or environmental restoration ...... 4,200 (3) Qualification as a self-insurer for cargo insurance ...... 420 (4) Quarterly self-insurance monitoring filing ...... 500 (5) Annual self-insurance monitoring filing ...... (1) 1 No cost.

4. Process Agent Designations operated by private or exempt for-hire included a proposal that administrative Current regulations under 49 CFR part motor carriers. Moreover, FMCSA filings be completed within 90 days 366 require only motor carriers and would be better able to identify among after submission of the Form MCSA–1, brokers that are subject to the 49 U.S.C. all of its regulated entities the with no further extensions. If either the chapter 139 commercial registration appropriate individual(s) upon whom to insurance or process agent filings were requirements to designate a process serve notices for enforcement actions. not completed within this 90-day period, the Agency would dismiss the agent.5 Today exempt for-hire motor 5. Timeframes for Evidence of Financial carriers are not subject to FMCSA registration request. Responsibility and Process Agent In addition, the Agency proposed a commercial regulations and thus are not Designation Filings 180-day grace period for the newly required to designate a process agent. The Agency proposed to increase to required administrative filings by Heretofore, the Agency has not 90 days the maximum time allowed for existing exempt for-hire and covered exercised the authority granted under 49 an applicant to submit evidence of private motor carriers. U.S.C. 503 to require private carriers to financial responsibility and to designate designate a process agent. However, in 6. USDOT Number as the Sole Identifier a process agent (§§ 360.13(a)(6) 6 and the May 2005 NPRM, the Agency for Entities Registered in URS (a)(7)). Failure to make these filings proposed to require new and existing within 90 days of applying for At the time of publication of the private and exempt for-hire motor registration would result in dismissal of NPRM, FMCSA registration systems carriers and freight forwarders to make the application. used five identification numbers: (1) process agent designation filings with The USDOT Number; (2) the MC FMCSA. Additionally, private motor Existing regulations already provide up to 80 days for these filings. Today Number (assigned to non-exempt for- carriers that operate in the United States hire motor carriers and brokers in the course of transportation between agents must file evidence of financial responsibility on behalf of non-exempt registering under 49 U.S.C. chapter 139); points in a foreign country would need (3) the FF Number (assigned to freight to file process agent designations with for-hire motor carriers, brokers and freight forwarders within 20 days of the forwarders); (4) the MX Number the Agency. (assigned to Mexico-domiciled motor The FMCSA concluded that extending date of publication of the application in the FMCSA Register (published on the carriers operating exclusively within the requirement to all URS registrants municipalities in the United States on would enhance the public’s ability to Agency Web site at http:// www.fmcsa.dot.gov). If the filings are the U.S.-Mexico international border serve legal process on responsible and the commercial zones of such individuals when seeking compensation not completed within the 20-day period, FMCSA issues a dismissal warning and municipalities; and (5) cargo tank for losses resulting from a crash facility (CT) numbers. The Agency involving a commercial motor vehicle may grant a one-time 60-day grace period. proposed to discontinue issuing MC, The Agency stated that a 90-day filing MX, and FF Number designations and to 5 Although part 366 does not require process phase out the use of current MC, MX, agent designations by freight forwarders, period for these administrative filings designation of agents for service of process by more realistically reflects the actual and FF Numbers within 2 years of the freight forwarders in connection with Agency time necessary to arrange insurance and compliance date for the URS final rule. proceedings is required under 49 U.S.C. 13303. process agent coverage. The NPRM Thus, the USDOT Number would Consequently, the Agency has required such become the sole identification number designations by freight forwarders notwithstanding the omission of freight forwarders in part 366. The 6 The May 2005 NPRM incorrectly included two for all entities registered by FMCSA Agency proposed to add freight forwarders to part paragraphs (a)(6) under § 360.13. This statement (except for cargo tank facilities). This 366 to fully implement section 13303. cross references the second paragraph (a)(6). unique USDOT Number would be

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displayed on the side of the vehicle Special procedures for chapter 139 8. The Proposed Application Form pursuant to the CMV marking brokers, freight forwarders or motor (MCSA–1) requirement in 49 CFR 390.21. The carriers The FMCSA proposed to combine the FMCSA would issue a USDOT Number data elements now captured on several with a distinctive suffix to any Mexico- Current registration procedures in 49 U.S.C. 13902 allow anyone to oppose a different licensing, registration and domiciled motor carrier granted certification forms into a single, new request for permanent operating registration. application form called the Form authority by non-exempt for-hire motor MCSA–1. For those entities subject to 7. The Application Process carriers, property brokers, and freight URS, Form MCSA–1 would replace the forwarders, provided the protest is following forms: (1) Motor Carrier The Agency proposed under subpart based upon the applicant’s willingness A to part 360 a new multi-step Identification Report (Application for and ability to comply with: (1) The USDOT Number), Form MCS–150; (2) application process and procedures for registration procedures; (2) applicable issuance of a USDOT Number under Application for Motor Property Carrier DOT regulations, including the Federal and Broker Authority, Form OP–1; (3) which an applicant would begin the Motor Carrier Safety Regulations registration process by filing a Application for Motor Passenger Carrier (FMCSRs), Hazardous Materials Authority, Form OP–1(P); (4) completed Form MCSA–1 and paying Regulations (HMRs) and regulations the registration fee. If the Agency Application for Freight Forwarder implementing the Americans with Authority, Form OP–1(FF); and (5) accepted the Form MCSA–1 application, Disabilities Act (ADA); (3) the safety Application for Mexican Certificate of it would assign a temporary number to fitness standards; and/or (4) the Registration for Foreign Motor Carriers track the application through the financial responsibility requirements. and Foreign Motor Private Carriers registration process and enable The proposed unified registration Under 49 U.S.C. 13902, Form OP–2. The registrants to make required system would continue to allow protests NPRM also invited comments on administrative filings. The applicant’s for applications covered under section whether the URS should incorporate the financial responsibility agent would use 13902, but would not extend the right data requirements of three other the tracking number to file evidence of of protest to applications for registration registration processes: (1) Registration of compliance with FMCSA financial filed by private motor carriers or exempt Mexico-domiciled motor carriers responsibility requirements under 49 for-hire motor carriers. seeking to operate between points in CFR part 387; the motor carrier or its In accordance with section 13902, Mexico and points in the United States agent also would use the temporary beyond the border commercial zones, FMCSA must notify the public when tracking number to make a process agent Form OP–1(MX); (2) registration of applications for authority are under designation filing. An applicant would entities requesting a hazardous consideration and provide an be prohibited from commencing materials safety permit, Form MCS– opportunity for protest. Upon operations until the Agency issues a 150B; and (3) registration of cargo tank acceptance of an application for USDOT Number and grants registration. facilities (which is requested in a letter registration from a chapter 139 entity, submitted by the applicant to FMCSA). Upon receipt of the USDOT Number, FMCSA would publish notice of the a motor carrier applicant would be application in the FMCSA Register, 9. Electronic Filing Requirement With considered a ‘‘new entrant’’ and placed initiating a 10-day protest period. The Paper Filing Option under the appropriate safety monitoring Agency would issue the applicant a The FMCSA proposed an online program. A U.S.- or Canada-domiciled temporary tracking number for the electronic application process with a motor carrier would be subject to the purpose of completing administrative paper filing option. The Agency FMCSA New Entrant Safety Assurance filings and tracking the application requested comments on the benefits or Program described under 49 CFR part through the registration process. If the hardships applicants might experience 385, subpart D, which includes a safety Agency denied an application based on from a mandatory online electronic audit. The provisional registration is the a protest, the application would be filing requirement. The Agency also new entrant registration defined at 49 dismissed, and the registration fee asked whether it should immediately CFR 385.3. New entrant registration for would not be refunded. require online electronic filing or these motor carriers would become If the application of a broker or freight provide a phase-in period. The FMCSA permanent only if the applicant forwarder is not protested or if noted several factors in support of an satisfactorily completed the New online filing requirement: insufficient grounds exist to deny a • Entrant Safety Assurance Program. protested application, the Agency There is widespread public access Similarly, to receive permanent to computers and the Internet; would issue a USDOT Number and • registration, a Mexico-domiciled new grant permanent registration. Brokers In 2005 when the Agency published entrant operating exclusively within the and freight forwarders are not subject to the NPRM, more than 70 percent of U.S. motor carriers had Internet access, with border commercial zones would be a safety monitoring program. required to satisfactorily complete the Internet access clearly increasing; If the application of a non-exempt • Automated error-checking would safety monitoring program and safety motor carrier is not protested, or if result in more accurate information audit described under 49 CFR part 385, insufficient grounds exist to deny a about the applicant; subpart B. Motor carrier operating protested application, FMCSA would • Online filing would allow USDOT authority obtained under the procedures grant the applicant new entrant Numbers to be issued faster, in 49 CFR part 365 would not become registration subject to completion of substantially reducing the current 2- to permanent until an applicant operating applicable administrative requirements. 4-week paper-based processing time for commercial motor vehicles satisfactorily New entrant registration would become registration applications; and completed the New Entrant Safety permanent registration only after • Online filing would be more cost- Assurance Program. satisfactory completion of the New effective for FMCSA than manually Entrant Safety Assurance Program. processing applications.

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10. Biennial Update Requirement The FMCSA proposed to issue only a USDOT Registration if the carrier failed The FMCSA proposed to require USDOT Number as an indicator of to comply with the financial biennial updates using proposed Form operating authority. Issuance of MC, responsibility and process agent filing MCSA–1 by all motor carriers, brokers MX, and FF Numbers would be requirements. and freight forwarders. Passenger and discontinued. Unlike chapter 139 Under proposed § 360.707, a motor property motor carriers, freight certificates and permits, which have carrier, broker or freight forwarder could forwarders, and property brokers would traditionally been considered reinstate a USDOT Registration that had have to file regular updates to their transferable motor carrier assets, a been deactivated for less than 2 years by registration information every 24 USDOT Number is a unique identifier making the necessary filings and paying months. At the time the URS NPRM was used to monitor a carrier’s safety a reinstatement fee. If the USDOT published (May 19, 2005), existing performance. As such, the USDOT Registration had been deactivated for 2 § 390.19 required only safety Number never has been subject to or more years, the entity would need to registration information filed on Form transfer. request the Agency to activate its MCS–150 or Form MCS–150–B to be Under the proposal, the Agency USDOT Registration (under the updated. There was no requirement for would permit retention of an existing previously-issued USDOT Number) by non-exempt for-hire motor carriers, USDOT Number in a situation where an completing the procedures in proposed property brokers, and freight forwarders entity changed its legal name, form of subpart A to part 360, including to biennially update commercial business, or address, provided that there payment of a registration fee. A motor registration information. In the May was no change in the ownership, carrier that sought to reinstate its 2005 NPRM, the Agency explained that management, or control of the entity. USDOT Registration after 2 years of since the Form MCSA–1 would combine Thus, the USDOT Number could be being deactivated would be classified as safety and commercial registration for retained following a change in the legal a new entrant. most motor carriers, FMCSA had name of a sole proprietorship, In setting the proposed threshold for preliminarily concluded it is reasonable corporation, or partnership; a change in reclassification of a carrier as a new to extend the biennial update the trade name or assumed name of an entrant at 2 years, the Agency sought to requirement to all motor carriers subject entity; and a change in the form of a prevent carriers that go in and out of to FMCSA’s commercial and safety business, such as the incorporation of a business for very short periods of time jurisdiction. As a result, all motor partnership or sole proprietorship. The from being required to re-enter the New carriers, property brokers, and freight Agency proposed that all entities Entrant Safety Assurance Program. The forwarders would need to file biennial requesting a change in legal name, form 2-year threshold also would parallel the updates. The registration updates would of business, or address be required to fill existing 2-year update requirement for provide valuable motor carrier and fleet out a revised Form MCSA–1 within 20 motor carrier information. days of the precipitating change with a information and would be useful in 13. Requirements for Special Transit certification that there had been no assessing safety performance. A motor Operations (Federal Transit change in the ownership, management, carrier that registers its vehicles in a Administration (FTA) Grantees) Performance and Registration or control of the entity holding the The Agency proposed to include Information Systems Management USDOT Number. Such a certification under URS passenger carriers that (PRISM) Program State would fulfill the would have addressed whether the provide service funded, in whole or in biennial update through its annual State change in name, form of business, or part, by a grant from the FTA under 49 re-registration requirement. address was associated with a transfer of the operating authority. U.S.C. 5307, 5310, or 5311. (49 U.S.C. 11. Transfers of Operating Authority 31138(e)(4)). These motor carriers 12. Cancellation, Reinstatement, and currently are exempt from Federal Existing 49 CFR part 365, subpart D, Deactivation of USDOT Registration permits non-exempt for-hire motor financial responsibility requirements carriers, brokers and freight forwarders Under existing procedures, if a motor but must comply with the highest that register under chapter 139 to merge, carrier, broker or freight forwarder minimum requirement imposed by any transfer or lease their operating whose operations are authorized under State in which they operate. The Agency authority (indicated by an MC or FF 49 U.S.C. chapter 139 wishes to proposed to waive all fees for FTA Number), and establishes procedures for voluntarily cancel its operating grantees, including the registration fee, Agency approval of these transactions. authority, it must submit a notarized insurance filing fee, and any fees related Currently, these entities are required to Form OCE–46, ‘‘Voluntary Revocation to the self-insurance approval process. It file transfer applications with FMCSA Request,’’ or electronically file its also proposed amending 49 CFR part and pay a $300 fee. request. In the May 2005 NPRM, the 387 to reflect the financial responsibility The Agency determined that in Agency proposed to replace the requirements unique to FTA grantees. enacting the ICCTA, Congress repealed voluntary revocation request procedure with the procedure now used by motor III. Discussion of the Supplemental pre-existing statutory authority to Notice of Proposed Rulemaking approve transfers of operating authority carriers requesting to discontinue use of (former 49 U.S.C. 10926). Accordingly, a USDOT Number. Motor carriers would A. New Regulatory Drafting Strategy be required to mail or electronically the Agency proposed to discontinue The Agency proposes in the SNPRM submit to the Agency a cancellation regulation of transfers of operating to use a different regulatory drafting request and certification statement authority and to remove 49 CFR part strategy than earlier proposed. The under proposed § 360.701. Use of the 365, subpart D, governing such transfers FMCSA would not at this time attempt Form OCE–46 would be discontinued. from the FMCSRs.7 to combine and redraft within a single Under proposed § 360.705, FMCSA CFR part the diverse application and would deactivate a motor carrier’s 7 FMCSA (then part of the Federal Highway program requirements as proposed in Administration) initially proposed removal of the the May 2005 URS NPRM. Instead, the transfer regulations in a February 13, 1998 NPRM announcing the withdrawal of the February 1998 (63 FR 7362). On May 16, 2001, FMCSA published NPRM with the intention of addressing the transfer Agency proposes an incremental a notice in the Federal Register (66 FR 27059) issue in the URS rulemaking. approach that would establish a general

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requirement under 49 CFR part 390, received. Comments will be discussed if registration and financial responsibility subpart C, for all entities under FMCSA they have resulted in changes to the information provided and fees paid by safety or commercial jurisdiction to Agency’s original proposal. A more motor carriers, motor private carriers, obtain USDOT Registration. USDOT detailed response to comments received brokers, freight forwarders and leasing Registration encompasses all to both the NPRM and this SNPRM will companies * * *.’’ (49 U.S.C. registration requirements for FMCSA be included in the preamble to the final 14504a(a)(8)). regulated entities, including the URS rule. The statute provides for a 15-member identification of motor carriers and Major proposals carried over from the Board of Directors for the UCR Plan and intermodal equipment providers for 2005 NPRM to this SNPRM include the Agreement (Board) appointed by the safety oversight, as required under 49 following: Secretary of Transportation, only one of U.S.C. 31144, commercial registration • The URS would combine (1) the whom shall be from the Department of required under 49 U.S.C. chapter 139, USDOT identification number system; Transportation. The remaining Board hazardous materials safety permitting (2) the Title 49, chapter 139 commercial members represent State agencies and required under 49 U.S.C. 5109, and registration system; and (3) the 49 the motor carrier industry. The cargo tank facility registration required U.S.C. 13906 financial responsibility establishment of the Board was under 49 CFR 107.502 and 49 U.S.C. information system into a new single, announced in the Federal Register on 5108. Existing 49 CFR part 390, subpart online system. In accordance with May 12, 2006 (71 FR 27777). C, which includes in-depth information section 4304 of SAFETEA–LU, the The Board is charged with developing governing intermodal equipment Agency also proposes inclusion of the regulations governing the UCR providers, would be re-designated as service of process agent designation Agreement and recommends the subpart D to part 390. system in accordance with 49 U.S.C. applicable fees to the Secretary of Fee schedules would remain under 49 503 and 13304. Transportation.8 The FMCSA is CFR part 360, and information regarding • All regulated entities would be required by SAFETEA–LU to set the fees designation of process agents would required to update registration within 90 days after receiving the remain under 49 CFR part 366. information every 2 years. Board’s recommendation and after Conforming amendments would be • All entities registered under URS notice and opportunity for public made to parts 360, 365, 366, 368, and would be identified by FMCSA solely comment (49 U.S.C. 14504a(d)(7)(B)). 385 to replace references to obsolete by the USDOT Number. Motor carriers The FMCSA described the statutory forms in the OP- and MCS-series with could continue to use obsolete MC requirements in detail in an NPRM references to proposed Form MCSA–1, Numbers for business and advertising published on May 29, 2007 (72 FR the Application for USDOT Number/ reasons, and the Agency would not 29472). On Friday, August 24, 2007, the Operating Authority. require a motor carrier to remove the Agency published a final rule The new regulatory strategy is existing MC Number from its vehicles. establishing initial fees for 2007 and a necessary because registration But the Agency encourages motor fee bracket structure for the Unified requirements vary widely among those carriers to refrain from displaying the Carrier Registration Agreement in the entities regulated by FMCSA. Although MC Number on new or repainted CMVs Federal Register (72 FR 48585). The Congress directed the Secretary to once the rule becomes final. FMCSA subsequently adjusted the UCR combine several distinct information • The Agency would no longer accept Agreement fees and fee bracket structure systems into a new on-line replacement or review requests for transfers of in a final rule dated April 27, 2010 (74 system, it did not direct that there be operating authority. FR 21993). uniform requirements for all entities • All existing private motor carriers For reasons stated in Section I of this under FMCSA jurisdiction. For that transport hazardous materials in SNPRM, development of the example, not all of the entities subject interstate commerce would be required replacement system for the SSRS is no to FMCSA safety oversight are subject to to maintain and file evidence of longer addressed under the URS its commercial jurisdiction under 49 financial responsibility with the rulemaking. U.S.C. chapter 139 and thus required to Agency. There would be at least a 3- 2. Entities Subject to the URS obtain certificates, permits and licenses month moratorium on enforcement of Registration Requirement granted to motor carriers, brokers and the filing requirement after the effective freight forwarders, respectively. For this date of the rule. The moratorium would Except as noted below, the Agency reason, the Unified Registration System not apply to new entrants. proposes to require all entities which would need to accommodate these are under FMCSA commercial or safety 1. Single State Registration System distinctions as long as they exist. jurisdiction to register under the Unified (SSRS) Registration System using proposed B. The Proposal Although numerous commenters Form MCSA–1. Section 4304 of The comment period for the May 2005 addressed SSRS issues, section 4305 of SAFETEA–LU amended 49 U.S.C. URS NPRM closed on August 17, 2005. SAFETEA–LU repealed the SSRS and 13908(b) to require the Federal on-line The FMCSA received a total of 60 placed responsibility for developing an replacement system to ‘‘serve as a comment submissions to the docket SSRS replacement system with the clearinghouse and depository of from 58 entities, including State and Unified Carrier Registration Plan (UCR information on, and identification of, all local government agencies, motor Plan). Under Section 4305(b) of foreign and domestic motor carriers, carriers, industry trade associations, SAFETEA–LU, the UCR Plan is the motor private carriers, brokers, freight enforcement associations, safety organization responsible for developing, forwarders, and others required to advocates, and private citizens. Most implementing, and administering the register with the Department of comments supported creation of a Unified Carrier Registration Agreement Transportation * * *.’’ The FMCSA unified registration system. Because the (49 U.S.C. 14504a(a)(9)) (UCR Agency is soliciting additional Agreement). The UCR Agreement 8 The Secretary’s functions under section 14504a have been delegated to the Administrator of the comments on modifications made to the developed by the UCR Plan is the Federal Motor Carrier Safety Administration. 49 NPRM, we will not, at this point in the ‘‘interstate agreement governing the CFR 1.73(a)(7), as amended, 71 FR 30833 (May 31, proceeding, address all comments collection and distribution of 2006).

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interprets this statute as authorizing the such carriers at this time. In September condition for receiving USDOT inclusion of all entities regulated by 2007, FMCSA began registering Mexico- Registration and commercial operating FMCSA in the Unified Registration domiciled long-haul carriers under a authority, when applicable. U.S. and System. limited-term cross-border demonstration Canada-domiciled motor carriers must Accordingly, proposed 49 CFR project in which participation by satisfactorily complete the new entrant 390.101 would establish a general Mexican carriers was voluntary. This safety assurance program under 49 CFR requirement for all regulated entities, program was discontinued in March part 385, subpart D in order for their except Mexico-domiciled motor carriers 2009, following enactment of section USDOT Registration and commercial seeking authority to operate beyond the 136 of the Transportation, Housing and operating authority, if applicable, to border commercial zones (Mexico- Urban Development, and Related become permanent. A Mexico- domiciled long-haul carriers), to obtain Agencies Appropriations Act, 2009 domiciled motor carrier is subject to the USDOT Registration by filing proposed [Division I, title I of the Omnibus safety monitoring system under 49 CFR Form MCSA–1 and to provide FMCSA Appropriations Act, 2009, Public Law part 385, subpart B. A non-North biennial updates of the registration 111–8, March 11, 2009], which America-domiciled motor carrier is information. prohibited the use of funds appropriated subject to the requirements of 49 CFR Under proposed § 390.102, a motor in that Act to establish, implement, part 385, subpart H, and must complete carrier that registers its vehicles in a continue, promote, or in any way permit the safety monitoring program under 49 State that participates in the a cross-border demonstration program. CFR part 385, subpart I. An intermodal Performance and Registration Subsequent to enactment of section 136, equipment provider is subject to the Information Systems Management Congress has not enacted any language requirements of 49 CFR part 390, program (PRISM) alternatively could that prohibits funding for a new cross- subpart D. A person who applies for a satisfy the USDOT registration and border demonstration program. hazardous materials safety permit is biennial update requirements in Currently, FMCSA and USDOT are subject to the requirements of 49 CFR § 390.101 by electronically filing the working closely with the Government of part 385, subpart E. A cargo tank facility required information with the State Mexico to implement a new phased-in is subject to the requirements of 49 CFR Driver Licensing Agency (SDLA) long-haul cross border trucking part 107, subpart F, 49 CFR part 172, according to its policies and procedures, program. FMCSA’s experiences in subpart H, and 49 CFR part 180. provided the SDLA has integrated the implementing this new program will be Finally, § 390.107 would direct a non- USDOT registration/update capability important in assessing the need to North America-domiciled motor carrier into its vehicle registration program. If propose further changes in the unified that requests authority to conduct State procedures do not allow a motor program at a future date. The applicable carrier to file the MCSA–1 form or to interstate commerce within the United procedures governing transportation by submit updates within the required 24- States to § 385.607(a) for detailed Mexico-domiciled motor carriers month window, the motor carrier would information about the requirement to beyond the municipalities and need to complete such filings directly complete a pre-authorization safety commercial zones along the United with FMCSA. audit as a pre-condition for receiving Proposed § 390.103 would require all States-Mexico international border USDOT Registration and commercial for-hire motor carriers and private motor remain 49 CFR part 365, subpart E, 49 operating authority, if applicable. carriers that transport hazardous CFR part 385, subpart B, and 49 CFR By placing the unified registration materials in interstate commerce, as 390.19. requirement under part 390, FMCSA well as brokers and freight forwarders, Proposed § 390.105 would list, and State partners that participate in the to file evidence of financial provide cross-references to, other Motor Carrier Safety Assistance Program responsibility to receive USDOT governing regulations that are would be able to enforce the registration Registration. applicable to those requesting USDOT requirement consistent with the Although seven comments supported Registration. For-hire and private motor compatibility requirements under 49 the inclusion of Mexico-domiciled long- carriers, brokers and freight forwarders CFR parts 350 and 355. haul carriers in the unified system, the additionally would be required to All entities required to register under Agency does not propose to include designate a process agent as a pre- URS are listed in the chart below:

ENTITIES REQUIRED TO REGISTER UNDER THE UNIFIED REGISTRATION SYSTEM

Entity Description

1. A for hire or private motor carrier domiciled in the U.S., Canada, Mexico or a non-North American country: a. For-hire carrier ...... A person engaged in the transportation of goods or passengers for compensation. i. Exempt ...... A person engaged in transportation exempt from commercial regulation by the Federal Motor Carrier Safe- ty Administration (FMCSA) under 49 U.S.C. chapter 135. Exempt motor carriers that operate commercial motor vehicles as defined in 49 U.S.C. 31101 are subject to the safety regulations set forth in Part B of Subtitle VI of subchapter B of Title 49 Code of Federal Regulations. ii. Non-exempt ...... A person engaged in transportation subject to commercial regulation by the Federal Motor Carrier Safety Administration (FMCSA) under 49 U.S.C. chapter 139, regardless of whether such transportation is sub- ject to the safety regulations. b. Private carrier ...... A person who provides transportation of property or passengers, by commercial motor vehicle, and is not a for-hire motor carrier. 2. Broker ...... A person who, for compensation, arranges, or offers to arrange, the transportation of property by a non-ex- empt for-hire motor carrier.

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ENTITIES REQUIRED TO REGISTER UNDER THE UNIFIED REGISTRATION SYSTEM—Continued

Entity Description

3. Freight forwarder ...... A person holding itself out to the general public (other than as an express, pipeline, rail, sleeping car, motor, or water carrier) to provide transportation of property for compensation in interstate commerce, and in the ordinary course of its business: (1) performs or provides for assembling, consolidating, break- bulk, and distribution of shipments; (2) assumes responsibility for transportation from place of receipt to destination; and (3) uses for any part of the transportation a carrier subject to FMCSA commercial juris- diction. 4. Intermodal equipment provider ... A person that interchanges intermodal equipment with a motor carrier pursuant to a written interchange agreement or has a contractual responsibility for the maintenance of the intermodal equipment. 5. Hazardous Materials Safety Per- A motor carrier that transports in interstate or intrastate commerce any of the hazardous materials, in the mit applicant. quantity indicated for each, listed under 49 CFR 385.403. 6. Cargo tank facility ...... A cargo tank and cargo tank motor vehicle manufacturer, assembler, repairer, inspector, tester, and design certifying engineer subject to registration requirements under 49 CFR 107.502 and 49 U.S.C. 5108.

3. Proposed User Fees The Agency sets forth under § 360.3(f) proposed registration, insurance filing and other services fees as follows.

Type of proceeding Fee

Part I: Registration: (1) ...... An application for USDOT Registration pursuant to 49 CFR part 390, $300. subpart C. (2) ...... An application for motor carrier temporary authority issued in re- $100. sponse to a national emergency or natural disaster and following an emergency declaration under § 390.23 of this subchapter. (3) ...... Biennial update of registration ...... $0. (4) ...... Request for change of name, address, or form of business ...... $0. (5) ...... Request for cancellation of registration ...... $0. (6) ...... Request for registration reinstatement ...... $10. (7) ...... Designation of process agent ...... $0. Part II: Insurance: (8) ...... A service fee for insurer, surety, or self-insurer accepted certificate of $10 per accepted certificate, sur- insurance, surety bond, and other instrument submitted in lieu of a ety bond or other instrument broker surety bond. submitted in lieu of a broker sur- ety bond. (9) ...... (i) An application for original qualification as self-insurer for bodily in- [Reserved]. jury and property damage insurance (BI&PD). (ii) An application for original qualification as self-insurer for cargo in- [Reserved]. surance. (iii) Fee for quarterly self-insurance monitoring filing ...... [Reserved]. (iv) Fee for annual self-insurance monitoring filing ...... [Reserved].

The Agency proposes a $300 of the reinstatement fee, the information URS from paying fees to access or registration fee for all registered entities. system would match up the payment retrieve its own data. Please refer to the discussion of the with the filings and automatically issue 4. Financial Responsibility proposed new registration fee under a reinstatement letter at 5:00 am on the ‘‘IV. Regulatory Evaluation of the URS next business day. Section 360.3(f)(7) Bodily Injury and Property Damage SNPRM: Summary of Benefits and would eliminate the existing $10 Insurance Costs’’ of the preamble for an process agent designation filing fee For-hire motor carriers. Existing explanation of the basis for this because section 4304 of SAFETEA–LU regulations require only non-exempt for- proposal. The FMCSA proposes to amended 49 U.S.C. 13908(d)(2) to hire motor carriers to file evidence of charge a $10 registration reinstatement prohibit the Agency from charging a fee financial responsibility with the fee for those seeking to reinstate USDOT for filing designation of an agent for Agency. The NPRM included a proposal registration as a result of failure to service of process. to require both exempt and non-exempt maintain required financial for-hire motor carriers to file evidence of responsibility and process agent The Agency proposes under financial responsibility with the Agency designation filings with the Agency. The § 360.1(e)(1) to exempt any Agency of as a precondition to receiving FMCSA also proposes to change the fee the Federal Government or a State registration. Section 4303(b) of currently charged for reinstating government or any political subdivision SAFETEA–LU amended financial commercial operating authority after of any such government from paying the security requirements under 49 U.S.C. such authority has been revoked from fees listed in § 360.3(f) to access or 13906 by requiring ‘‘all persons, other $80 to $10. After completion of required retrieve URS data for its own use. than a motor private carrier, registered filings (financial responsibility or Proposed paragraph (e)(2) would with the Secretary to provide process agent designation) and payment exempt any registered entity within transportation or service as a motor

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carrier under section 13905(b)’’ to file responsibility for private non-hazardous because we no longer may distinguish evidence of financial responsibility with materials motor carriers would generate between common and contract carriers the Agency by December 10, 2005. The major interest from the private motor in the Agency’s registration process or Agency believes amended 49 U.S.C. carrier community and might cause a base any regulations upon that 13906 mandates financial responsibility significant delay in completing the URS distinction, it was important to address filings by all for-hire motor carriers. rulemaking. Consequently, FMCSA has the cargo insurance issue as quickly as Therefore, the Agency retains its decided to address the financial possible. Consequently, the Agency proposal for such filings to be required responsibility requirements for private published a separate final rule as a precondition for registration under non-hazardous material motor carriers eliminating the cargo insurance proposed §§ 390.103(a)(2)(i) and in a separate rulemaking from URS. requirement for for-hire motor carriers 387.303 Brokers and freight forwarders. of property (except household goods Private motor carriers hauling Brokers and freight forwarders would be motor carriers) and freight forwarders hazardous materials. The SNPRM required under proposed § 390.103(a)(2) (except household goods freight retains under § 390.103(a)(2)(ii) the to file evidence of financial forwarders), effective March 21, 2011 proposal that a private motor carrier responsibility as a pre-condition to (75 FR 35318, June 22, 2010). The hauling hazardous materials in registration. This requirement includes preamble to that final rule addressed the interstate commerce be required to file only those freight forwarders that comments filed in this proceeding evidence of financial responsibility with perform transfer, collection and delivery regarding the NPRM’s cargo insurance the Agency to receive registration. service (i.e., operate a motor vehicle). proposal. However, a private motor carrier Under the existing regulations, only HHG freight forwarders performing Web-Based Filing by Insurers, Surety hauling hazardous materials in bulk in Companies, and Financial Institutions intrastate commerce would continue to transfer, collection and delivery service be required to meet the financial are subject to this requirement. These The Agency would require insurers, responsibility requirements under 49 regulations were transferred without surety companies and financial CFR part 387 and maintain evidence of change from the Interstate Commerce institutions to convert to a Web-based having met the financial responsibility Commission following enactment of the format when electronically filing requirements at its principal place of ICCTA, which re-regulated general evidence of financial responsibility. business.9 commodities freight forwarders. (§ 387.323) These filings would include Private motor carriers not hauling However, the regulations were not evidence of surety bonds, certificates of hazardous materials. Initially, section amended to reflect the Agency’s insurance, trust-fund agreements, proof 4120(a)(1) of SAFETEA–LU amended 49 broadened jurisdiction. The FMCSA of qualifications to self-insure, and U.S.C. 31138(a) and 31139(b)(1) to believes there is no basis to limit the notices of cancellations. The Agency remove the phrase ‘‘for compensation’’ requirement to HHG freight forwarders also proposes conforming amendments from the statutes governing financial and therefore proposes to extend this to miscellaneous sections governing responsibility and filing of evidence of requirement to all freight forwarders. financial responsibility requirements to convey that electronic filing would be financial responsibility with the Restoration of Liability Insurance mandatory and not optional. Agency, thereby creating a financial Requirements for Small Freight Vehicles responsibility requirement for private (§§ 360.3(a)(2), 387.313(b), 387.313(d), Section 4120 of SAFETEA–LU motor carriers, which the Agency was 387.323, 387.413(b), and 387.419) removed FMCSA’s commercial required to implement through jurisdiction over for-hire transportation Self-Insurance Program rulemaking. Section 4120(a)(2) stated of property in motor vehicles that did Commenters generally supported the the Agency could require a private non- not meet the definition of commercial proposal to modify fees related to the hazardous materials motor carrier to file motor vehicle (CMV) under 49 U.S.C. self-insurance program. Currently, the evidence of financial responsibility with 31132. Consequently, the Agency cost of the program exceeds the amounts FMCSA. Section 305(a) of the removed former 49 CFR 387.303(b)(1)(i), recovered from fees collected from those SAFETEA–LU Technical Corrections which established minimum public entities that self-insure. The Agency Act of 2008 [Pub. L. 110–244, 122 Stat. liability limits of $300,000 for fleets that believes that because entities that 1619–1620, June 6, 2008] amended consisted only of vehicles with Gross qualify to self-insure receive a valuable section 31138 by limiting the Secretary’s Vehicle Weight Ratings of under 10,000 benefit, it is reasonable and appropriate authority to establish minimum levels of pounds.10 The SAFETEA–LU Technical for the fees charged to support the costs financial responsibility for private Corrections Act of 2008 restored the of administering the program. However, motor carriers of passengers to those Agency’s commercial jurisdiction over FMCSA has determined that the carriers transporting passengers for these vehicles. Accordingly, the Agency proposed fees for the self-insurance commercial purposes. proposes to restore former program published in the 2005 NPRM The Agency anticipates that a § 387.303(b)(1)(i) with one minor are inadequate to recover Agency costs proposal regarding financial change, revising 10,000 pounds to to administer the program, including the 10,001 pounds to be consistent with the 9 The statutory authority to require motor private costs of evaluating and monitoring the carriers to file evidence of insurance with FMCSA statutory definition of CMV. financial health of motor carriers is codified at 49 U.S.C. 31139(c). This authority Cargo Insurance. Section 4303(c) of requesting approval to participate in the expressly applies to minimum levels of financial SAFETEA–LU required the Agency to self-insurance program. The Agency responsibility established by the Secretary under 49 discontinue designating operating U.S.C. 31139(b). Section 31139(b) only applies to seeks to make the self-insurance financial responsibility requirements for authority as common or contract program self-sustaining more quickly transportation in interstate commerce. Although the carriage beginning January 1, 2007. The and is therefore developing a separate Secretary has other authority, in 49 U.S.C. 31139(d), FMCSA concluded that because the rulemaking to address this issue. to establish minimum levels of financial cargo insurance requirement is tied to responsibility for intrastate transportation of Editorial Changes hazardous materials, section 31139(d) does not the common/contract distinction, and authorize the Secretary to require that evidence of The Agency proposes to remove such insurance be filed with FMCSA. 10 See 72 FR 55697, 55702 (October 1, 2007). obsolete effective dates and liability

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information from the schedule of limits agent’s information, including name, registration process and enable on Form MCS–90B, Endorsement for address or contact information. applicants and their agents to make Motor Carrier Policies of Insurance for Amended § 366.6 would require the required administrative filings using the Public Liability Under Section 18 of the report to be made within 20 days of the tracking number. Under this proposal, Bus Regulatory Reform Act of 1982 change. an applicant would not receive a (Illustration I to § 387.39). Also, the USDOT Number until all necessary 6. Timeframes for Filing Evidence of Agency would correct an omission in filings were made and would be Financial Responsibility and Process § 387.419 by adding the phrase ‘‘notice prohibited from commencing operations Agent Designation of cancellations.’’ Although the existing until the USDOT Number was issued. section heading is ‘‘Electronic filing of As proposed in the NPRM, the The Owner-Operator Independent surety bonds, certificates of insurance Agency would require new filings of Drivers Association, Inc. (OOIDA) and and cancellations’’ the Agency both evidence of financial responsibility Missouri Department of Transportation neglected to include information and designation of agents for service of (MODOT) supported the proposed regarding cancellations. process to be completed within 90 days multi-phase application process. of the date that an application is MODOT further stated that waiting until 5. Process Agent Designations submitted, or within 90 days of the date an application has passed initial The Agency, by proposing to amend that the notice of application is screening before issuing a USDOT 49 CFR 366.1, retains the NPRM published in the FMCSA Register if a Number is a valid approach. proposal to include private and exempt carrier also is seeking commercial The American Trucking Associations, for-hire motor carriers among those operating authority. (§ 365.109) The Inc. (ATA) commented that because entities that would be required to file proposed 90-day time period combines USDOT Numbers and provisional process agent designations with the existing 20-day initial deadline and registrations would no longer be issued FMCSA. Private motor carriers are 60-day extension period and adds at the time of application under the already mandated by 49 U.S.C. 503 to 10 more days for Agency processing. NPRM proposal, new carriers may be make such filings, although FMCSA has Section 4303(b) of SAFETEA–LU delayed entry into the market. ATA not yet promulgated a rule requiring amended 49 U.S.C. 13906(a) to establish urged the Agency to supply applicants them to do so. Inasmuch as non-exempt December 10, 2005 as the deadline for with temporary tracking numbers for-hire motor carriers, brokers, and existing exempt for-hire motor carriers immediately upon receipt of the freight forwarders are required to file to make insurance filings with FMCSA, application and provide the applicant a process agent designations under 49 making it unnecessary to propose a point of contact at FMCSA. Greyhound U.S.C. 13303 and 13304, approximately grace period for financial responsibility stated that temporary tracking numbers 90 percent of the entities subject to this filings. Inasmuch as section 13906(a) would cause tremendous confusion and rule are required, by statute, to file such excluded private motor carriers the Agency should issue a tentative designations. Although there is no registered with the Agency under USDOT Number at the beginning of the statutory requirement that exempt for- 13905(b) from the expedited financial process, making the number permanent hire carriers file process agent responsibility filing requirement, and in at the conclusion of the process. designations, FMCSA believes that the interest of treating all applicants The MODOT, the Iowa Department of extending the process agent designation who must file evidence of financial Transportation (IADOT), the American requirement to include such carriers, as responsibility equitably, the Agency Association of Motor Vehicle well as private carriers, would enhance will not include in proposed § 390.103 Administrators (AAMVA), ATA, and the the public’s ability to serve legal process a 180-day grace period for financial National Conference of State on responsible individuals when responsibility filings by existing exempt Transportation Specialists (NCSTS) seeking compensation for losses for-hire or private motor carriers. Such filed comments opposing the proposed resulting from a crash involving a carriers would have to file by the system. MODOT commented that as a commercial motor vehicle operated by effective date of the final rule. partner in the implementation of the any motor carrier, regardless of the The SNPRM includes, in proposed Federal safety fitness program it should carrier’s regulatory status. Moreover, § 366.2(b), a 180-day grace period for all be able to continue to issue USDOT FMCSA would be able to better identify existing private and exempt for-hire Numbers under PRISM. AAMVA the appropriate individual(s) upon motor carriers to file process agent echoed the same concern, adding that if whom to serve notices for enforcement designations. The grace period would be States are not able to issue USDOT actions. The Agency invites comments calculated from the final rule Numbers, their resulting inability to on whether the process agent filing compliance date. The FMCSA believes deliver accurate and timely customer process can be made less costly. the 180-day time period for existing service will cause substantial delay for The FMCSA also proposes to amend private and exempt for-hire motor carriers wishing to enter the market. § 366.1 by including freight forwarders carriers to make process agent ATA found it ‘‘very disturbing’’ that the among those entities required to file designations is necessary for Agency IT process for issuing USDOT Numbers process agent designations with systems to accommodate the anticipated and for updating MCS–150 data may FMCSA. Under 49 U.S.C. 13303(a), a one-time surge in the number of filings conflict with PRISM requirements in freight forwarder providing service from this group and to provide them such a way as to delay the vehicle under FMCSA jurisdiction must adequate time to comply with the new registration of International Registration designate an agent on whom service of filing requirements. Plan (IRP) fleets. IADOT commented notices in Agency proceedings, as well that under the NPRM the States’ as service of Agency actions, may be 7. The Application Process inability to issue USDOT Numbers to made. The Agency proposed in the NPRM a interstate carriers and registrants would The FMCSA proposes to amend new multi-step application process and have the following adverse impacts: (1) § 366.6 to obligate those entities that procedures for issuance of a USDOT Increased processing time for first-time would be required to file a process agent Number under which applicants would motor carriers, especially private designation to update FMCSA of any initially be assigned temporary numbers carriers; and (2) increased costs for changes to the designated process to track the application through the private and exempt carriers to operate.

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OOIDA urged FMCSA to ensure that 8. Revisions to Proposed Application applicants to demonstrate they are in States retain the ability to issue USDOT Form MCSA–1 compliance with the Americans with Numbers to registering owner-operators. The Agency proposed in the NPRM to Disabilities Act (ADA) [[Pub. L. 101– OOIDA suggested that a simple separate combine the data elements now 336, Title I, § 102, July 26, 1990, 104 electronic form should be used when a captured on several different licensing, Stat. 331] as amended].’’ The vehicle is registered, and owner- registration and certification forms into Community Transportation Association operator USDOT Numbers could be a single, new application form called of America (CTAA) applauded the maintained in the URS system. the Form MCSA–1. Commenters Agency’s efforts to unify all registration information into a single form but After careful consideration of all filed generally supported the use of a single form but urged that the form be as suggested some minor modifications to comments and discussions with PRISM the proposed form. simple as possible. Although ATA States that issue USDOT Numbers to The National Propane Gas Association generally supported the scope of the carriers on FMCSA’s behalf, the Agency (NPGA) believed information about has withdrawn the proposal to issue a proposed Form MCSA–1, it argued that gross operating revenue should not be temporary tracking number to the benefits the new form could provide collected. NPGA stated the Form may be outweighed by problems caused applicants and issue a USDOT Number MCSA–1 instructions are unclear by an unwieldy, complex, and only after applicable administrative regarding whether a hazardous materials inconvenient form. ATA urged the filings have been completed. Under shipper is required to file Form MCSA– Agency to ensure that the form is as 1 and requested that the Agency modify proposed § 390.101(c)(2), each applicant simple as possible for use by the would be issued an inactive USDOT the instructions to explicitly state that majority of the trucking industry, which the proposed form would not apply to Number. The inactive USDOT Number largely consists of small business would be activated by the Agency only hazardous materials shippers. The entities. In particular, ATA said it is Corporate Transportation Coalition after the applicant has filed applicable important for the form and its administrative filings such as evidence (CTC) stated that there must continue to instructions to be clear regarding the be a way to distinguish between private of financial responsibility or a process transactions for which the form is to be and for-hire carriers and recommended agent designation. If a carrier also is used and the compliance requirements that private carriers not be required to seeking operating authority, the USDOT for each transaction type. ATA believes submit financial data or other Number would remain inactive until all Form MCSA–1 should be concise and information unrelated to the safe protests filed under 49 CFR part 365 devoid of requests for safety- and non- operation of their truck fleets. have been resolved and the applicant safety-related information that are not The American Moving and Storage has filed applicable administrative required by the current FMCSRs and Association (AMSA) commented that filings. The Agency also proposes new HMRs. Finally, ATA urged the Agency the more detailed and tougher § 392.9b to prohibit a motor carrier with to review and eliminate all entries on congressional registration requirements an inactive USDOT Number from Form MCSA–1 and its appendices that for HHG movers should be incorporated operating a CMV and to establish do not contain critical data needed for in the URS rule. Advocates for Highway penalties for violating the prohibition. the registration process (i.e., research and Auto Safety (Advocates) supported This change has been made in order to data). the inclusion of the new entrant allow PRISM States to continue to offer The Utah Department of provisions in the URS rule. Transportation (UTDOT) and the Utah one-stop services to carriers and to The FMCSA agrees that proposed Trucking Association (UTA) supported better enable PRISM States to track and Form MCSA–1 should be as simple and combining the filings in one form and easy to use as possible, consistent with monitor carriers’ safety performance. using one online central access point for the need to collect the necessary PRISM States and insurance companies motor carriers, freight forwarders, and information. The FMCSA has reviewed would have had to alter their IT systems property brokers while providing an the draft Form MCSA–1 and and administrative processes to alternative for ‘‘mom and pop’’ instructions in light of the various accommodate the issuance of temporary companies that do not utilize comments and made revisions to clarify tracking numbers, which would have computers. the form and instructions and to been costly and time-consuming. The The OOIDA supported combining eliminate extraneous material. FMCSA believes its current proposal is several existing forms into one new The Agency proposes to revise the the most transparent and efficient form and urged the Agency to make the MCSA–1 form and instructions to model. form available in hard copy to filers collect registration information from all The FMCSA plans to collaborate with who are not ‘‘computer-savvy.’’ OOIDA FMCSA regulated entities, except PRISM States in developing a unified supported the proposed collection of Mexico-domiciled long-haul carriers. message to notify motor carriers, at the carrier and cargo classification and HHG Because hazardous materials shippers time of registration, that operating with arbitration information. OOIDA stated are not subject to the FMCSRs, the Agency also proposes to exclude them an inactive USDOT Number would that the Bureau of Transportation Statistics (BTS) should continue to from the Unified Registration System. result in enforcement at the Federal and collect motor carrier financial Conforming amendments are proposed State levels. During vehicle registration, information and sought verification that for Form MCSA–1 and instructions as PRISM States would inform the motor the collection of information on the new well. As mentioned previously, the URS carrier that its license plates would be form is not intended to replace BTS rule was impacted by new provisions suspended if its application for information collection activities. enacted by SAFETEA–LU and operating authority is denied as a result Greyhound believed proposed Form subsequently promulgated final rules, of the protest process, if appropriate MCSA–1 and the instructions for its which brought new entities under administrative filings are not made completion are somewhat confusing and FMCSA’s registration jurisdiction (such within a specified number of days, and/ need to be revised to be more user as intermodal equipment providers and or if its application is rejected during friendly. Greyhound and ABA non-North America-domiciled motor FMCSA review under 49 CFR 365.109. recommended that the Agency ‘‘require carriers). To accommodate these

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changes, the Agency proposes changes including additional questions and new to the MCSA–1 form and instructions, or relocated sections as follows:

MCSA–1 Form—URS NPRM version MCSA–1 Form—URS SNPRM version

Section A—Business Description Section A—Business Description Section B—Motor Carriers Section B—General Operational Information Section C—Hazardous Materials (HM) Section C—Hazardous Materials (HM) Section D—Transportation of Household Goods Section D—Hazardous Materials Permitting Section E—Commercial Zone Operations Section E—Cargo Tank Facility Section F—Additional Information Section F—Transportation of Household Goods Section G—Safety Certifications Section G—Transportation of Passengers Section H—Certifications Section H—Scope of Authority Section I—Cancellation Section I—Commercial Zone Operations Section J—Filing Fee Information Section J—Non-North America-Domiciled Carriers Attachments to Section G (Supplemental information required only from a Mexico-domiciled motor carrier) Section K—Additional Information Section L—Safety Certifications (Certifications applicable only to Mexico- or Non-North America-domiciled motor carriers) Section M—Compliance Certifications Section N—Applicant’s Oath Section O—Filing Fee Information Attachments to Section L—Supplemental Information required only from a Mexico- or Non-North America-domiciled motor carrier

Consistent with provisions under of each driver, and procedures for in ensuring ADA compliance, FMCSA section 4204 of SAFETEA–LU, FMCSA identifying drivers who are not will take the following actions: proposes collection of additional complying with the safety regulations.’’ Æ Ask the following questions registration information from HHG The revised certification removes a regarding ADA compliance during the motor carriers as follows: (1) Evidence requirement not contained in the new entrant safety audit— of participation in an arbitration FMCSRs and is less burdensome. • Does the carrier have the means to program and a copy of the notice of the • The Agency previously proposed a provide accessible over-the-road bus arbitration program as required by vehicle certification which read: ‘‘My (OTRB) service on a 48-hour advance section 14708(b)(2); (2) identification of vehicles were manufactured or have notice basis by its owned or leased the carrier’s tariff and a copy of the been retrofitted in compliance with the OTRBs? notice of availability of the tariff for • applicable USDOT Federal Motor If the carrier does not have the inspection as required by section Vehicle Safety Standards.’’ The SNPRM means then does the carrier have an 13702(c); (3) evidence that carriers have revises the proposed certification to arrangement with another carrier that access to, have read, are familiar with, operates accessible OTRBs? and will observe all applicable Federal read ‘‘The carrier will ensure, once Æ operations in the United States have If noncompliance with DOT’s ADA laws relating to consumer protection, regulations is discovered in the course begun, that all vehicles it operates in the estimating, consumers’ rights and of a new entrant safety audit or United States were manufactured or responsibilities, and options for compliance review, FMCSA will either have been retrofitted in compliance limitations of liability for loss and forward the information to the U.S. with the applicable USDOT Federal damage; and (4) disclosure of any Department of Justice (DOJ) for Motor Vehicle Safety Standards or relationships involving common stock, appropriate action or conduct its own Canadian Motor Vehicle Safety common ownership, common investigation and attempt to resolve the Standards in effect at the time of management, or common familial violations, in accordance with a manufacture.’’ The Agency believes the relationships between filing carriers and February 2009 Memorandum of new language clarifies the carrier’s any other motor carriers, freight Understanding between DOJ and DOT forwarders, or property brokers of HHG responsibility to ensure that no vehicle executed pursuant to Public Law 110– within 3 years of the proposed date of may be operated in the United States 291. (A copy of the Memorandum of registration. unless it complies with the applicable Understanding has been placed in the The FMCSA also proposes the vehicle safety standards. docket for this rulemaking). following improvements to Form • The Agency proposes revisions to Æ Refer any non-compliant motor MCSA–1 and the instructions: Form MCSA–1 to collect information carrier that is also a recipient of DOT • Elimination of a requirement for regarding ADA compliance. Although financial assistance to FTA for U.S.- and Canada-domiciled motor the Over-the-Road Bus Accessibility Act administrative enforcement action, as carriers to submit a ‘‘description of a of 2007 [Pub. L. 110–291, 122 Stat. appropriate. FTA administers a program retraining and educational program for 2915, July 30, 2008] requires FMCSA to that provides financial assistance to poorly performing drivers.’’ The form consider compliance with DOT’s ADA some over-the-road bus carriers and, will continue to require a certification regulations at 49 CFR part 37, subpart A, consistent with section 504 of the that a motor carrier has in place ‘‘a as an element of an over-the-road bus Rehabilitation Act of 1973 (29 U.S.C. system and procedures for ensuring the company’s fitness for receiving new 794), as amended, and DOT rules continued qualification of drivers to operating authority, it does not require implementing it (49 CFR part 27), operate safely, including a safety record the inclusion of detailed ADA cannot provide such assistance to for each driver, procedures for compliance information in the carriers who are out of compliance with verification of proper age and licensing application form. Nonetheless, to assist their ADA obligations.

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Æ When appropriate, initiate action to estimated 88 percent of motor carriers in system. The system would incorporate amend, suspend, or revoke a carrier’s the United States have Internet access, electronic signature technology for registration based on willful and this number is steadily growing. required signatures. Supplemental noncompliance with DOT’s ADA Furthermore, the Internet is publicly documentation required for registration regulations accessible via libraries and other public would be accepted electronically as FMCSA proposes conforming facilities. Electronic filing is cost well. The system would include the amendments to align 49 CFR 365.105 effective and would incorporate capability to upload scanned or with certain information on Form automated error checking, reduce electronic versions of this information. MCSA–1. In proposed § 365.105, the processing time, and facilitate faster The Agency does not propose a phase- Agency replaces references to obsolete issuance of USDOT Numbers. A in period because it anticipates that OP series forms with ‘‘Form MCSA–1’’ detailed cost/benefit analysis performed most entities should have online access and reduces the number of operational by the Agency supporting this position, when the URS rule becomes effective. categories from six to three so it is clear titled ‘‘Report on Benefits and Costs of The Agency would provide adequate that the fee for operating authority Mandatory Electronic Filing of time to adjust to the electronic filing applies only to the general categories of FMCSA’s Unified Registration System,’’ requirement when setting the motor carrier, broker and freight is included as Appendix A to the compliance date for the final rule, and forwarder and not to each individual regulatory evaluation. The conclusions would adopt procedures to ensure subgroup of these categories listed in of this analysis are reported in the URS continued operational capability in case Section A, question 17 of Form MCSA– SNPRM under Section IV, titled of system failure. 1. (see Instructions for Form MCSA–1, ‘‘Regulatory Evaluation of the URS 10. Transfers of Operating Authority item number 50) SNPRM: Summary of Benefits and In proposed § 365.107, the Agency Costs.’’ This SNPRM withdraws the proposal replaces references to OP series forms Based on the year-to-year increases in that entities, when submitting a revised with ‘‘Form MCSA–1.’’ Also, the the percentage of electronic filings for Form MCSA–1 due to a change of name, Agency proposes to remove obsolete the Agency’s MCMIS data, the Agency form of business, or address, must also references to common and contract estimated that, even in the absence of a submit a certification that there has carriage as required by 49 U.S.C. mandatory electronic filing requirement, been no change in the ownership, 13902(f), as amended by section 4303(c) the percentage of electronic filers would management, or control of the entity. of SAFETEA–LU. range between 80 and 90 percent. The While the Agency has determined that FMCSA developed projections of the the ICCTA removed its statutory 9. Adoption of an Exclusively Online authority to review transfers of Electronic Registration System numbers of new registrants expected to enter the industry from 2014 to 2023 operating authority, the ICCTA did not Several commenters filed comments and assessed the costs of electronic prohibit such transfers. Therefore, about the effect of a mandatory online filing both for new registrants and for FMCSA also would eliminate 49 CFR filing requirement, including a possible existing firms that file biennial updates. part 365, subpart D, governing transfers phase-in period for mandatory online Mandatory electronic filing would of operating authority. A motor carrier filing. ATA supported the emphasis on only impose a cost on firms that would would be required, however, to identify online filing and said it should be made otherwise have filed by paper due to a any current management official (e.g. mandatory with a 2 to 3 year phase-in lack of computer skills and/or Internet Owner, President, Vice President, Safety period. NCSTS stated that a minimum access. The results of FMCSA’s analysis Director, etc.) responsible for motor 5-year phase-in period is needed before showed that costs to these affected firms carrier safety in its operation who was electronic filing becomes mandatory would be low, ranging from $12.73 to hired after the last update when and suggested that FMCSA maintain an $80.00 for new registrants and from completing the Form MCSA–1 biennial alternative system to allow paper filings $3.14 to $51.53 for firms with recent registration update. A motor carrier that during systems failures and computer activity filing biennial updates. The low changes its name, form of business, or outages. The Property Casualty Insurers end of these cost ranges are for firms address would retain its existing Association of America (PCIAA) also that file their registrations at a public USDOT Number. favored phased-in mandatory electronic library, and the high end is for firms Regarding the comments about the filing. that would hire another entity to practice of ‘‘churning’’ (motor carriers The Petroleum Marketers Association complete the forms on their behalf. The ‘reincarnating’ by registering for a new of America (PMAA), the American FMCSA also prepared estimates of the USDOT Number in an attempt to Insurance Association (AIA), and benefits of mandatory electronic filing, conceal a negative safety history), the OOIDA opposed mandatory electronic consisting of estimates of the value of Agency believes that existing filing. PMAA stated that some of its time saved by carriers and the value of regulations, the proposals contained in members would be unable to access the substantially more rapid receipt of this SNPRM and the requirements in 49 Internet and urged the Agency to keep operating authority, as well as benefits CFR part 385, together with procedures the paper filing option available. OOIDA to FMCSA from electronic filing. A adopted and recently implemented by asserted electronic filing is a hardship comparison of the costs and benefits the Agency for review of motor carrier for some parties, opposed mandatory indicated that mandatory electronic applications for operating authority, electronic filing and stated a 5-year filing would result in anticipated will discourage this practice. In this phase-in period is absolutely necessary benefits of more than $38 million. SNPRM, the Agency also proposes to in the event mandatory electronic filing The FMCSA confirmed that the Small require information on motor carrier is adopted. OOIDA also stated that Business Administration (SBA) would ownership on the Form MCSA–1 to be FMCSA should provide an alternative not consider a totally electronic filed with the Agency prior to receipt of back-up system to online filing. registration system to be a barrier to a new USDOT Number. This The Agency believes mandatory entry for small businesses, if the cost- information would assist the Agency in electronic filing is feasible and would benefit analysis supported the proposal. identifying individuals involved in result in substantial cost savings to both Based on its analysis, FMCSA proposes churning and rejecting their filers and FMCSA. Currently, an a mandatory electronic registration applications for new registration when

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appropriate. The Agency also believes entrants and be required to successfully rather must meet the insurance that the requirement under 49 CFR part complete the New Entrant Safety requirements of the States in which they 385 for all new entrants (carriers Assurance Program. operate. receiving a new USDOT Number) to Consistent with the new regulatory The Rhode Island Public Transit undergo a safety audit within 18 months drafting strategy for the SNPRM, the Authority (RIPTA) asserted that the of beginning operation will deter Agency is not proposing to make NPRM offered little relief from what it carriers from engaging in this practice. changes to its New Entrant Safety considers a burdensome and confusing In addition, motor carriers required to Assurance Program. While the New system of compliance with FMCSA, the obtain operating authority pursuant to Entrant Safety Assurance Program is Federal Highway Administration 49 CFR parts 390 and 365 may be triggered by the registration process, it (FHWA), and FTA requirements. The subject to FMCSA review procedures is a separate program whose governing Ohio Department of Transportation established under 49 CFR 365.109. regulations are codified under 49 CFR (ODOT) said the Agency must: (1) Currently, FMCSA utilizes these parts 365 and 385. This SNPRM Clearly define the difference between a procedures for review of applications addresses cancellation, reinstatement ‘‘for-hire’’ CMV and a public FTA- for household goods motor carrier, and deactivation of USDOT funded transit vehicle that travels across broker, freight forwarder or passenger Registration/operating authority only State lines beyond a contiguous carrier authority. However, in the future from the standpoint of fees and other jurisdiction; (2) address the type of the Agency anticipates expanding the administrative requirements. The public transportation system that is program to include applications from all Agency recently published revisions to operated by a designated grantee motor carriers that require operating its New Entrant Safety Assurance (whether government or private non- authority. Employing procedures Program, including regulations profit); (3) exempt vehicles transporting established under § 365.109, the Agency governing reinstatement. (‘‘New Entrant between 9 and 15 passengers and reviews applications for completeness Safety Assurance Process; Final Rule,’’ originating and terminating in the same and for conformity with the safety published on December 16, 2008 at 73 State but traveling through an adjacent fitness standard. Through this process, FR 76472). State for operational convenience; and if the Agency determines that a carrier (4) permit financial responsibility 12. Additional Proposals Regarding is not fit, willing and able to comply requirements to be satisfied through Special Transit Operations (Federal with applicable statutes and regulations, participation in shared risk programs, Transit Administration (FTA) Grantees) the motor carrier’s application for such as Ohio’s County Risk Sharing operating authority will be rejected. In The non-profit organization CTAA, Authority. the event an application is rejected, an which represents public and The OOIDA opposed relieving FTA appeal may be filed with the Agency community-based FTA grantees, grantees of the requirement to pay filing pursuant to 49 CFR 365.111. In this generally supported the provisions of fees, contending the NPRM provides no SNPRM the Agency proposes revising the NPRM applicable to FTA grantees. rationale for relieving what are 49 CFR 365.111 and 365.203 to provide However, CTAA suggested that the essentially private companies with a the address and appropriate office for Agency revise the rule to: (1) Clarify that government contract of their fair share appeals of rejections and for protests. the requirements would apply to motor of the cost of the registration program. carriers of passengers that participate in In response to these comments, 11. Cancellation, Reinstatement, and interlining or through-ticketing FMCSA proposes under §§ 390.101(b) Deactivation of USDOT Registration arrangements with one or more and 387.33(b) to clarify the specific URS In the NPRM, the Agency proposed interstate for-hire motor carriers of registration and financial responsibility that a motor carrier seeking to reinstate passengers; (2) designate an Agency obligations for FTA grantees. Although its USDOT Registration more than 2 point of contact to assist FTA grantees all FTA grantees would be required to years after its registration was in completing their applications; and (3) register with FMCSA and would receive deactivated would be classified as a new amend proposed Form MCSA–1 to a fee waiver, their financial entrant. In setting the proposed include specific information applicable responsibility requirements could differ, threshold for reclassification of a carrier to FTA grantees, including depending on the FTA program under as a new entrant at 2 years, the Agency governmental status, transit areas, which the grantee receives funding. The sought to prevent carriers that go in and certification of compliance with FTA proposed minimum financial out of business for very short periods of (not FMCSA) drug and alcohol testing responsibility requirement for a grantee time from being required to re-enter the regulations, and a statement that FTA that provides transportation within a New Entrant Safety Assurance Program. grantees need not pay a filing fee. CTAA transit service area located in more than The OOIDA disagreed with the urged FMCSA to permit risk retention one State under an agreement with a Agency’s statement that a carrier that groups and other forms of pooled Federal, State, or local government has been inactive for more than 2 years insurance as ways to satisfy the funded, in whole or in part, with a grant is functionally equivalent to a new Agency’s financial responsibility under 49 U.S.C. 5307, 5310 or 5311 is entrant. OOIDA explained that many requirements. Finally, CTAA stated that the highest level of financial motor carriers, including owner- the regulations should take into account responsibility required for any of the operators, may operate under another the effect on FTA programs of the last States in which it operates. An FTA carrier’s authority for a period of time two comprehensive reauthorization grantee that receives funding under for economic reasons. In these cases, statutes. other grant programs (section 5316 and OOIDA believes the Agency is not Greyhound and ABA supported 5317 grantees) would be subject to the justified in proposing to require the clarifying the status of transit providers general financial responsibility carrier to pay a new registration fee and that operate entirely within one State requirements applicable to for-hire to undergo a new safety audit as a but participate in interline relationships passenger carriers that do not receive condition for activating registration. with interstate carriers. They agreed that FTA funding. The different financial Advocates supported the proposal FMCSA should explicitly state that such responsibility requirements are due to that carriers that have been inactive for transit providers are not subject to the the fact that 49 U.S.C. 31138(e)(4) more than 2 years be treated as new FMCSA insurance requirements but expressly exempts section 5307, 5310

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and 5311 grantees from the Federal Agency must first distinguish between acceptable form of insurance pursuant general financial responsibility risk retention groups and risk pools. to the section 13906 requirement that requirements and instead subjects them Risk retention groups (RRGs) are the Secretary ‘‘register a motor carrier to applicable State requirements. The established under the Liability Risk under section 13902 only if the exemption does not cover section 5316 Retention Act of 1981 [Pub. L. 97–45, 95 registrant files with the Secretary a and section 5317 grantees; neither the Stat. 949, September 25, 1981] and are bond, insurance policy or other type of Transportation Equity Act for the 21st defined at 15 U.S.C. 3901(a)(4). security approved by the Secretary Century (TEA–21) [Pub. L. 105–78, 112 According to a 1987 ICC Policy * * *.’’ The Agency’s position has been Stat. 107, June 9, 1988] nor SAFETEA– Statement, which authorized the that risk pools do not qualify as a bond LU amended 49 U.S.C. 31138 to Commission to accept certificates of or insurance policy, and that a motor expressly exclude them from the insurance from RRGs, those entities are carrier may meet the financial Federal financial responsibility required by Congress to: responsibility requirements through requirements. (1) Be chartered or licensed under the self-insurance only if the insured The Agency proposes to incorporate laws of a State as a liability insurance applies for approval under the Agency’s all but one of CTAA’s recommended company and authorized by such State’s self-insurance program. changes to Form MCSA–1. The FMCSA laws to engage in the business of This issue is complicated by section could not add a cross reference to insurance; 31138(e)(4), which exempts transit existing FTA drug and alcohol (2) [Not] exclude any person from operators receiving Federal grants under regulations to the Drug and Alcohol membership solely for the purpose of 49 U.S.C. 5307, 5310, or 5311 from both Safety Certification because the Drug providing existing members of such the amounts and type of financial and Alcohol Safety Certifications under group a competitive advantage over the responsibility that must be provided as Section L of Form MCSA–1 apply only excluded person; evidence of compliance with the to Mexico- or non-North America- (3) Have as its owners only persons financial responsibility requirement. domiciled motor carrier applicants— who comprise the membership of the Section 31138(e)(4) further provides, entities that are ineligible to receive Risk Retention Group and who are however, that where the transit service FTA grants. (See Section L, question 47, provided insurance by the group, or has area is in more than one State, the III, 1 on proposed Form MCSA–1). as its sole owner an organization which minimum level of financial With respect to ODOT’s suggestion to has as its members only persons who responsibility shall be the highest level differentiate between for-hire motor are members of the Risk Retention required for any of such States. This carriers and public transit vehicles, and Group; and requirement has been incorporated into to exempt certain types of vehicles and (4) Be formed by persons who are proposed § 387.33(b). The above transportation from the URS engaged in businesses or activities notwithstanding, these exempted transit requirements, the Agency notes that similar or related as to the liability to services operators still are subject to public transit vehicles are a subset of which they are exposed by virtue of registration under 49 U.S.C. 13902(b)(2) for-hire CMVs. Accordingly, the Agency related, similar or common business, and are required to register and provide declines to distinguish between for-hire etc. proof of insurance pursuant to proposed motor carriers and public transit Implementation of Liability Risk § 365.109. vehicles for purposes of registration Retention Act of 1986, Ex Parte No. MC– Pursuant to 49 U.S.C. 13906(a)(1), the under proposed part 390, subpart C. 178 (Sub-No. 4), 1987 WL 98199, at *1 ‘‘Secretary may register a motor carrier Moreover, the Agency is not authorized (decided Mar. 31, 1987) (‘‘ICC Policy under section 13902 only if the to grant ODOT’s request to exempt from Statement’’). The ICC Policy Statement registrant files with the Secretary a registration requirements those vehicles indicated that RRGs ‘‘are bond, insurance policy, or other type of transporting between 9 and 15 unquestionably insurance companies, security approved by the Secretary, in passengers and originating and and can meet the criteria prescribed for an amount not less than such amount as terminating in the same State but insurance * * * companies in 49 CFR the Secretary prescribes pursuant to, or traveling through an adjacent State for 1043.8 * * *.’’ Id. at *2. Former as is required by, sections 31138 and operational convenience. The Agency § 1043.8 is the predecessor to current 49 31139, and the laws of the State or recognizes the limited exemption from CFR 387.315. The FMCSA continues to States in which the registrant is the Federal minimum financial accept RRG filings. operating, to the extent applicable.’’ responsibility requirements set forth in Insurance risk pools are typically Section 387.301 currently permits motor proposed § 387.33(b) granted to certain private associations operated on a carriers to satisfy their financial public transit operators, pursuant to 49 statewide basis for the benefit of their responsibility requirements by filing U.S.C. 31138(e)(4). However, the members. The main distinction between proof of such ‘‘other securities’’ as the exemption from the minimum financial risk pools and RRGs is that risk pools do Secretary approves. responsibility requirements does not not meet the statutory requirements This proposed rule expressly include those operators providing established for RRGs under the Liability addresses registration and insurance service in more than one State from Risk Retention Act of 1981. The public requirements for certain types of transit having to file proof of financial transit risk pools allow the State and operators. It is therefore appropriate to responsibility pursuant to the minimum municipal transit operators to achieve resolve confusion that has arisen in this levels set by State law. economies of scale in purchasing area. The Agency recognizes that The CTAA and ODOT additionally insurance resulting in lower premiums allowing these transit operators to requested that the Agency allow transit and other benefits to the limited utilize State-approved risk pools would operators to satisfy financial membership. Transit risk pools are expand the types of security approved responsibility requirements through generally approved by the State and by the Secretary for certain transit shared risk programs. CTAA supported by the State Departments of service operators and harmonize the characterizes such shared risk programs Transportation. provisions of sections 31138(e)(4) and as ‘‘risk retention groups and other Unlike RRGs, State and local 13906(a)(1) by recognizing the State’s forms of ‘pooled’ insurance * * * .’’ In government risk pools generally have approved form of financial responding to these comments, the not been approved by FMCSA as an responsibility for these operators. As a

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result, the Agency intends to publish a companies will not be able to obtain owned or leased by the carriers and separate Federal Register notice that operating authority before it abandons provide other pertinent data displayed will describe the Agency’s proposed certain routes. Greyhound claimed it on the specification plates of such tanks. change in policy to allow transit service provides at least 30 days notice before NTSB recommended that FMCSA providers that fall under the provisions it discontinues a route and cannot require this information to be updated of proposed § 387.33 to utilize State- provide more notification time ‘‘if the annually. As FMCSA proposes to approved risk pools in order to meet the restructuring is to be implemented in a replace the MCS–150 form with the new State financial responsibility timely manner.’’ Greyhound proposed MCSA–1 form through this rulemaking, requirements pursuant to section the Agency adopt a process by which the Agency believes it would be 31138(e)(4) and proposed § 387.33. emergency temporary authority would appropriate to solicit information from become effective immediately upon the 13. Temporary Operating Authority the public regarding: filing of a temporary authority (1) Whether the MCSA–1 form should Former 49 U.S.C. 10928(b) allowed application and proof of insurance and be revised to incorporate the NTSB the ICC, which was sunsetted in 1995, would remain in effect until FMCSA recommendation; to issue temporary authority to provide processed the permanent application, (2) Whether the collection of transportation to a place or in an area perhaps 90 days. ABA also supported additional information regarding cargo having no motor carrier capable of the Greyhound proposal. tanks would prove useful in connection meeting the immediate needs of the The FMCSA believes that continued with a rollover prevention program; place or area. Former section 10928(c) issuance of temporary operating (3) Whether cargo tank carriers should permitted the ICC to issue emergency authority as limited under § 365.107(g) be required to submit updated data temporary authority if, due to is warranted. During the Hurricane more frequently than biennially. If so, emergency conditions, there was Katrina relief effort in 2005, FMCSA what event should trigger the update insufficient time to process an received numerous applications for requirement; application for temporary authority. emergency temporary authority (4) What would be the burden Temporary authority was originally pursuant to § 365.107(g) and the Agency associated with collecting additional made available because it took several believes that having a procedure for the cargo tank information biennially or months for the former ICC to process issuance of temporary operating more frequently; applications for permanent operating authority will enhance future (5) Whether there are alternatives for authority, particularly if competing emergency relief efforts. However, collecting this information; and carriers protested the application. except in extraordinary circumstances (6) Whether this information is Following changes in statutory such as natural disasters, the Agency already being collected by other entities, standards which led to greatly reduced does not anticipate many requests for such as State Departments of Motor application processing time, the ICC such applications. We believe Vehicles. limited the issuance of temporary Greyhound overstates the time it takes authority to ‘‘exceptional circumstances FMCSA to currently process IV. Regulatory Evaluation of the URS (i.e., natural disasters or national applications for operating authority and SNPRM: Summary of Benefits and emergencies) when evidence of its comments do not provide a Costs immediate service need can be convincing rationale for extending the A. Summary specifically documented * * *.’’ [See current requirements to prospective existing 49 CFR 365.107(g)]. FHWA (and ‘‘emergencies’’ caused by manageable The FMCSA has revised its 2005 later FMCSA) retained this provision business decisions. Under proposed NPRM in response to congressional when the ICC operating authority § 365.107(e), FMCSA would grant mandates included in SAFETEA–LU regulations were transferred to USDOT temporary operating authority only in and in response to comments to the May in 1996. cases of national emergency or natural 2005 NPRM. In this section of the The ICCTA repealed 49 U.S.C. disaster and following an emergency SNPRM, FMCSA summarizes its 10928(b) and (c) and did not enact any declaration under 49 CFR 390.23. calculation of the costs and benefits comparable provisions expressly Entities granted temporary operating associated with the changes included in authorizing the issuance of temporary authority would need to file evidence of this proposed rulemaking. Although authority. However, the ICCTA does not financial responsibility with the many of the revisions proposed under prohibit the issuance of temporary Agency. URS would result in changes to existing authority and 49 U.S.C. 13905(c) fees paid by motor carriers (creation of provides that any registration issued to 14. NTSB Recommendation Impacting new fees or elimination of existing fees), motor carriers, freight forwarders, and Cargo Tank Applications and Updates these changes would result in a shifting property brokers under chapter 139 After investigating a 2009 incident of fees from one group to another and shall remain in effect for such period as involving the rollover of a truck-tractor would not result in a net gain (benefit) the Secretary determines appropriate by and cargo tank semitrailer and the or loss (cost) from a societal perspective. regulation. Therefore, there is general resulting fire, the National For example, if FMCSA were to statutory authority to continue issuing Transportation Safety Board (NTSB) eliminate a fee previously paid by motor temporary authority. However, the made 20 draft recommendations to four carriers, that group would receive a NPRM did not include a provision DOT modal administrations, including benefit. However, the benefit would be permitting motor carriers to obtain FMCSA, and the American Association offset by an equal cost to the Agency in temporary registration or operating of State Highway and Transportation the form of lost revenues. The FMCSA authority. Officials. As part of a recommended classified the costs and benefits Greyhound requested that the Agency rollover prevention program, NTSB calculated in the regulatory evaluation grant temporary operating authority to recommended that FMCSA revise the as either changes in fees, resource costs, prevent service disruptions which may MCS–150 form to require hazardous or benefits. Changes in fees are neutral occur as a result of Greyhound’s materials carriers to report the number from a societal perspective, but changes restructuring its nationwide service. and types of U.S. Department of in resource costs and benefits result in Greyhound believes replacement Transportation specification cargo tanks either a cost or a benefit to society. The

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FMCSA estimated the costs and benefits file proof of liability insurance with Table 1 presents the total costs associated with implementing the FMCSA; associated with the URS SNPRM. The following proposed major URS SNPRM • A reduction of the current URS proposal results in an anticipated provisions: reinstatement fee for non-exempt for- resource cost to industry of $26,342,699 • A new requirement for private and hire motor carriers, brokers and freight and a resource cost to FMCSA of exempt for-hire motor carriers, cargo forwarders and new reinstatement fees $135,158 over the 10-year analysis tank facilities, and intermodal for exempt for-hire and private hazmat period (2014–2023). The total societal equipment providers (IEPs) to pay motor carriers; cost of the SNPRM is thus $26.5 million FMCSA registration fees; 11 • Elimination of operating authority ($26,342,699 + 135,158). The industry • A new requirement for private transfers and filing fees for name also would experience an increase in carriers and exempt for-hire motor changes; carriers to file proof of process agent • Introduction of new Form MCSA–1 fees of $65.3 million, and the Agency designations with FMCSA; filing requirements; and would experience a decrease in fee • A new requirement for private HM • Mandatory electronic filing of Form revenues of $6.7 million. and exempt for-hire motor carriers to MCSA–1.

TABLE 1—TOTAL COSTS OF URS PROPOSED RULE

Resource costs Fees paid/lost URS Rule provision Industry Agency Industry Agency

Mandatory Electronic Filing ...... $538,894 $0 $0 $0 Eliminating Transfer/Name Change Requirements ...... 0 0 0 1,854,890 New Registrant Fee ...... 0 0 63,583,722 0 Insurance Filing ...... 676,723 0 1,691,808 0 Process Agent Filing ...... 25,067,012 0 0 0 Cancellations and Reinstatements ...... 60,070 135,158 0 4,808,126 New MCSA–1 Application Form ...... 0 0 0 0

Total Costs ...... 26,342,699 135,158 65,275,530 6,663,017 Note: Numbers may not add due to rounding.

Table 2 presents the total benefits of safety investigators to locate small and Accountability (CSA) program would the URS rule for each provision. For the medium-sized private and exempt for- lead to increased safety benefits. industry, total benefits amount to $3.3 hire motor carriers for enforcement However, to present a conservative million and fee savings amount to $6.7 action because investigators would be estimate of the benefits of the URS rule, million. For the Agency, total benefits able to work with the newly-designated we only estimate the benefit of time amount to $42.7 million and $65.3 process agents to locate hard-to-find saved by the Agency due to a more million in fees received. This proposal motor carriers. The Agency believes that efficient CSA program. would improve the ability of FMCSA a more efficient Compliance, Safety,

TABLE 2—TOTAL BENEFITS OF URS RULE [10-year present value]

Benefits Fees received/saved URS rule provision Industry Agency Industry Agency

Mandatory Electronic Filing ...... 1,964,186 36,190,320 0 0 Eliminating Transfer/Name Change Requirements ...... 0 0 1,854,890 0 New Registrant Fee ...... 0 0 0 63,583,722 Insurance Filing ...... 0 0 0 1,691,808 Process Agent Filing ...... 0 3,130,736 0 0 Cancellations and Reinstatements ...... 0 0 4,808,126 0 New MCSA–1 Application Form ...... 1,354,631 3,391,089 0 0

Total Benefits ...... 3,318,817 42,712,146 6,663,017 65,275,530 Note: Numbers may not add due to rounding.

The FMCSA calculated the net changes is offset by an equal gain to This results in total societal net benefits societal benefits of the proposed rule by FMCSA due to increased revenues from of the URS SNPRM of $19.6 million. subtracting the total (industry and fees. Table 3 presents the net benefits of The industry would experience a total Agency) 10-year costs from the total 10- the proposed rule. Net benefits are increase in fees of ¥$58.6 million year benefits for each provision. The estimated to be ¥$23.0 million for the (including total fees paid and fees cost to industry associated with fee industry and $42.6 million for FMCSA. saved). This increase in fees to the

11 Throughout this section, cargo tank facilities and IEPs are referred to as ‘‘other entities.’’

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industry is offset by a total $58.6 million (including fees lost and fees received). the URS rule would not lead to a increase in fees received by FMCSA FMCSA believes the fees and costs of reduction in competitiveness.

TABLE 3—NET BENEFITS OF URS PROPOSED RULE [10-year present value]

Net benefits Net fees URS rule provision Industry Agency Industry Agency

Mandatory Electronic Filing ...... $1,425,292 $36,190,320 $0 $0 Eliminating Transfer/Name Change Requirements ...... 0 0 1,854,890 ¥1,854,890 New Registrant Fee ...... 0 0 ¥63,583,722 63,583,722 Insurance Filing ...... ¥676,723 0 ¥1,691,808 1,691,808 Process Agent Filing ...... ¥25,067,012 3,130,736 0 0 Cancellations and Reinstatements ...... ¥60,070 ¥135,158 4,808,126 ¥4,808,126 New MCSA–1 Application Form ...... 1,354,631 3,391,089 0 0 Net Benefits ...... ¥23,023,883 42,576,988 ¥58,612,513 ¥58,612,513

Societal Net Benefits ...... 19,553,105 0 Note: Numbers may not add due to rounding.

B. Calculation of Costs and Benefits provides that the fee for new registrants the 10-year period, and subtracted the shall as nearly as possible cover the 10-year present value of other fee This section summarizes the costs of processing the registration but revenues ($6,943,479) from the calculation of the costs and benefits for shall not exceed $300. The FMCSA licensing, insurance, and vetting cost each URS provision. All costs and determined that it would need to charge estimate to arrive at $353,179,316 in benefits were calculated over a 10-year all new registrants the maximum present value costs that the Agency period in nominal dollars, restated in allowable fee of $300 because the must recover through the registration real 2010 dollars, and discounted to amount needed to cover the 10-year fee. The FMCSA divided this cost present value using a rate of seven Agency costs associated with processing percent per Office of Management and estimate by its projection of dollars the registration filings based on collected per dollar of fee ($486,678)13 Budget (OMB) guidelines. A full projections of annual new registrants discussion of the data used, to arrive at a fee of $725. Per Section and Agency processing costs exceeds 4304 of SAFETEA–LU, FMCSA assumptions made, and calculations the $300 limit. performed can be found in the proposes to charge the maximum The FMCSA forecasted $360,122,795 registration fee permitted by law, $300 regulatory evaluation contained in the in upgrading and operating costs of the public docket for the URS SNPRM. per new registrant. Though a portion of registration system over the 10-year the fees could cover some of the costs period from 2014 through 2023. This 1. Proposed New Registration Fees of FMCSA review of applications, the total includes the costs to operate the Under the URS $300 fee will not be sufficient to cover new motor carrier licensing and all of these review costs. Currently, only non-exempt for-hire insurance system. The total also motor carriers, property brokers, and includes the cost for FMCSA to vet all The cost to industry associated with freight forwarders must pay a one-time new registrant for-hire carriers.12 the change would be $63,583,722 in registration fee to FMCSA of $300. A portion of these licensing, discounted dollars over the 10-year However, under the URS, FMCSA insurance, and vetting costs will be period (shown in Table 4). This cost to proposes to require exempt for-hire, defrayed by fee revenues other than new industry would be offset by an equal private motor carriers and other entities registrant registration fees. The FMCSA benefit to the Agency resulting from the to pay a one-time registration fee as estimated fees collected for various revenues generated through the new well. Section 4304 of SAFETEA–LU insurance filings to be $6,943,479 over registration fees.

TABLE 4—PROPOSED CHANGE IN FMCSA REGISTRATION FEE TO NEW REGISTRANTS BY OPERATION AND CLASSIFICATION

Number Fee Total Total Operation classification (2014–2023) change (2010 $) (present value)

Exempt For-Hire Carriers ...... 44,449 300 $13,334,700 $10,083,170 Private Carriers and other entities * ...... 235,945 300 70,753,500 53,500,522

Total ...... 280,294 ...... 84,088,200 63,583,722 * Cargo tank facilities and IEPs.

12 The FMCSA has authority to vet all for-hire carrier data in order to identify noncompliant submit additional evidence to support its position carriers, but is currently vetting only for-hire carriers seeking authority under a different name. that the application should be approved. household goods and passenger carriers. During the If an application is incomplete, FMCSA will contact 13 This number was calculated by multiplying the vetting process, FMCSA reviews the application for the applicant to obtain missing information. If number of new registrants in each year by $1, completeness and determines if the applicant FMCSA determines that an applicant is an unsafe complies with the statutory and regulatory safety carrier or the application is materially incomplete, discounting to find the present value, and summing fitness requirements. During this review, FMCSA FMCSA will reject the application. The applicant is over the 10-year period of the analysis. staff compares the applicant’s data with existing provided an opportunity to appeal the rejection and

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2. Designation of Process Agents estimate the benefit of time saved by the 3. Financial Responsibility The FMCSA proposes amending 49 Agency due to a more efficient CSA Under the URS SNPRM, all new CFR part 366 to require private and program. registrant exempt for-hire and private The FMCSA investigators sometimes exempt for-hire carriers to file process HM carriers’ insurance representatives spend 20 hours or more attempting to agent designation information with the would need to file evidence of financial locate motor carriers for enforcement Agency. Although, per SAFETEA–LU, responsibility with FMCSA, and the action, and in some cases are unable to carriers will not be assessed a fee when carriers would be assessed a $10 filing track down the subject carrier. The filing this information, there is still a fee.14 The FMCSA calculated 10-year fee FMCSA estimated that the availability cost to industry associated with costs of $460,331 to industry using its of process agent information would save engaging a process agent. The FMCSA estimate of new registrant exempt for- field staff an average of 15 hours in estimated, based on price quotes hire and private HM carriers. This cases involving hard-to-locate carriers. available from process agents, that the In 2002, States conducted 216 carrier $460,331 cost to industry is offset by an cost to engage a process agent is searches per year on average. In 2003, equal benefit to the Agency resulting currently about $35 per carrier. This FMCSA Division Offices reported from revenues from the new fees. cost was assumed to cover the minimal between 10 and 100 cases per State in The $10 fee is a transfer from the filing cost to the process agent. No which field staff had significant trouble industry to the Agency, but the industry processing cost was assumed for locating a motor carrier against whom will incur resource costs associated with FMCSA for this electronic filing. they wished to take enforcement action, filing. The FMCSA assumed it would The FMCSA calculated $7,199,122 in with most Division Offices reporting take insurance companies a minimal discounted costs to industry associated fewer than 25 such instances. amount of time to file the required proof with new-registrant private and exempt The FMCSA estimated that 15 of insurance for each carrier they insure. for-hire carrier process agent filings for enforcement cases per State per year (or Because these filings are handled 2014 through 2023. roughly two thirds of the ‘‘difficult’’ electronically, FMCSA assigned a cost The FMCSA assumed that no private cases) would benefit from dramatically of only $4 per filing, assuming 10 and exempt for-hire motor carriers with reduced search costs because of the minutes of time for a clerk. The FMCSA recent activity have designated process proposed requirement for private and calculated the resource cost to new agents. The FMCSA calculated one-time exempt for-hire carriers to designate registrant exempt for-hire and private compliance costs for affected carriers process agents. HM carriers by multiplying its with recent activity of $910,546,445 The estimates of 15 saved hours per projection of filing costs by its estimate based on its estimate of 253,019 private difficult case and 15 difficult cases per of new registrants over the 10-year and exempt for-hire carriers with recent year per division result in 225 (15 × 15) period to arrive at a total discounted activity in 2014. annual staff hours saved per State, or resource cost to industry of $184,132. Finally, FMCSA, based on discussions 11,250 (225 × 50 States) annual staff The FMCSA would require existing with the FMCSA Commercial hours saved in total. Assuming the exempt for-hire and private HM carriers Enforcement Division, estimated that 10 Agency would allocate all of the annual to file proof of insurance. Using the percent of private and exempt for-hire saved staff hours to reducing labor costs, Agency’s 2008 Motor Carrier motor carriers with recent activity FMCSA estimated the value of this Management Information System would change their process agents each annual benefit by multiplying the total (MCMIS) data, FMCSA estimated that in year. The FMCSA calculated discounted annual hours saved (11,250) by the 2014 there will be 48,308 exempt for- costs to industry of $7,321,445 Agency wage rate presented above in hire carriers with recent activity and associated with re-filing activities over Section 2. For example, in 2014, the 25,019 private HM carriers with recent the 10-year analysis period. The FMCSA saved staff hours would benefit the activity. The FMCSA calculated a also calculated the Agency resource cost Agency by reducing labor costs by discounted cost to industry of $693,890 to process the carrier process agent $416,585 (11,250 × $37.03). associated with the fees. This cost to changes. The FMCSA projected this annual industry is offset by an equal benefit to Non-exempt for-hire motor carriers, benefit over the 10-year analysis period the Agency due to the revenues from the brokers and freight forwarders currently to arrive at a total benefit of $4.2 million fees. must file designations of process agents in 2010 dollars. The FMCSA discounted The FMCSA calculated the resource via a ‘‘BOC–3’’ filing. Under the URS this benefit to present value applying a cost to carriers with recent activity by SNPRM, FMCSA proposes to require seven percent discount rate consistent multiplying its $4 filing cost estimate by both private and exempt for-hire carriers with the other portions of this analysis. the total exempt for-hire and private HM to make the same filings. The Agency arrived at a total benefit carriers with recent activity to arrive at This proposal would improve the due to reduced labor cost (i.e., increased a discounted resource cost of $733,270. ability of FMCSA safety investigators to efficiency) of $3.1 million over the 10- Currently, all for-hire motor carriers, locate small and medium-sized private year analysis period. property brokers, and HHG freight and exempt for-hire motor carriers for In total, the regulatory changes forwarders performing transfer, enforcement action because requiring exempt for-hire and private collection and delivery service must investigators would be able to work carriers to file process agent maintain current proof of financial with the newly-designated process designations would result in a cost of responsibility on file with FMCSA to agents to locate hard-to-find motor $25,067,012 to industry and a benefit to remain in ‘‘active’’ status. If an carriers. If the time saved were used by the Agency of $3,130,736, and thus a insurance company or financial safety investigators to conduct more societal net benefit of ¥$21,936,276. institution notifies FMCSA of Compliance, Safety, Accountability The Agency invites comments on cancellation of coverage, carriers, (CSA) program interventions, the whether the process agent filing process Agency believes this would lead to can be made less costly. If there are less 14 Section 4304 of SAFETEA–LU caps financial responsibility filing fees at $10. The filing fee is increased safety benefits. However, to costly alternatives, please provide paid to FMCSA by the insurance company making present a conservative estimate of the specific recommendations along with the filing on behalf of the carrier and is passed on benefits of the URS rule, we only supporting data. to the carrier by the insurance company.

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property brokers, and freight forwarders forwarders must file evidence of reinstatement fee would be sufficient to must file evidence of replacement replacement coverage before the policy, defray Agency processing costs. The coverage before the policy, bond or trust bond or trust fund termination date. The FMCSA calculated savings by non- fund termination date. Under this operating authorities of entities that do exempt for-hire carriers, brokers and proposed rule, exempt for-hire and not file the required updates are revoked freight forwarders applying for private HM carriers would be subject to and these entities must apply for reinstatement by multiplying the $70 the same requirements. There is a $10 reinstatement of their operating reduction in fees for these carriers by fee associated with filing proof of authority by making the necessary the number of affected carriers to arrive replacement financial responsibility. filings. The FMCSA proposes to require at a 10-year discounted saving of Based on 2008 MCMIS data, roughly exempt for-hire and private HM carriers $4,958,302. This industry benefit would 8.56 percent of non-exempt for-hire and all freight forwarders providing be offset by an equal cost to the Agency carriers with recent activity filed proof transfer, collection and delivery service due to the loss of revenues from the of replacement liability insurance to file and maintain proof of liability fees. coverage with the Agency. The FMCSA insurance as a condition for obtaining Reinstatement, Exempt For-Hire and assumed the same portion of the exempt and retaining an active USDOT Number. Private Hazmat Carriers for-hire and private HM carriers would The FMCSA would deactivate the file proof of replacement insurance USDOT Number of noncompliant Under the current system, exempt for- following a policy cancellation. The entities, who would be required to hire and private hazmat carriers do not FMCSA thus calculated the fees reactivate their USDOT registrations and file insurance-related reinstatements. associated with evidence of financial resume operations subject to FMCSA Under the proposed system, these responsibility replacement filings jurisdiction. carriers would pay a $10 fee and file resulting from this proposed change by Under the current system, carriers updated information. Using 2008 multiplying the $10 filing fee by 8.56 requesting reinstatement of operating MCMIS data, FMCSA calculated that percent of the exempt for-hire and authority must file a written request for 2.58 percent of exempt for-hire and private HM carriers with recent activity reinstatement, pay an $80 fee (on-line private hazmat carriers would let their each year. This calculation resulted in a by credit card, by phone with a credit insurance coverage lapse and later file discounted cost to industry over the 10- card, or by mail with a check) and make reinstatement requests. The Agency year analysis period of $498,207. This the applicable financial responsibility determined that it incurs slightly less cost to industry would be offset by an filing. Once the payment is received and than $10 per request to process equal benefit to the Agency in the form applicable filings are made, the FMCSA reinstatement requests. The $10 of new fees received. information system matches up the reinstatement fee would be sufficient to The FMCSA calculated the resource payment with the filings and defray Agency processing costs. The cost to carriers with recent activity by automatically issues a reinstatement FMCSA calculated fees associated with multiplying its replacement filing cost letter at 5 a.m. on the next business day. this activity by multiplying the $10 fee estimate by 8.56 percent of the Under the proposed system, carriers by the number of affected carriers to population of exempt for-hire and requesting reinstatement would make arrive at a 10-year discounted cost of private HM carriers with recent activity. the request electronically using Form $150,176. This industry cost would be This resulted in a total discounted MCSA–1, pay a $10 fee, and complete offset by an equal benefit to the Agency resource cost to operating carriers over applicable filings showing that their due to the gain in revenues from the the 10-year analysis period of $199,283. insurance is back in effect. The Agency fees. Again, no costs were attributed to the aspect of the reinstatement process There is a resource cost to industry Agency for these filings. would remain the same under the associated with making these Changes in requirements for financial proposed system. reinstatement requests. As above, responsibility filings resulted in a total The FMCSA discusses these changes FMCSA assumed that the costs 10-year cost to industry of $1,691,808. below in the following categories: (a) associated with completing the This cost to industry due to changes in Reinstatement for non-exempt for-hire applicable filings would equal the costs requirements, however, is offset by an carriers, brokers and freight forwarders; associated with filing proof of insurance equal benefit to FMCSA for revenues and and process agent designations ($4). The from fees associated with the increased (b) Reinstatement for exempt for-hire FMCSA calculated discounted costs to number of filings. Therefore, the societal and private hazmat carriers. industry of $60,070 associated with costs due to changes in fees are zero. Reinstatement, Non-Exempt For-Hire filing activities over the 10-year analysis These proposed changes resulted in Carriers, Brokers and Freight period. total 10-year resource costs to industry The FMCSA calculated discounted Forwarders of $676,723. costs to the Agency of $135,158 Under the current system, non- associated with processing exempt for- 4. Cancellation and Reinstatement of exempt for-hire carriers, brokers and hire and private hazmat carrier USDOT Numbers/Operating Authority freight forwarders pay an $80 fee and reinstatements over the 10-year analysis As discussed in the previous section, file a written request for reinstatement. period. non-exempt for-hire motor carriers, Under the proposed system, these property brokers, and certain HHG carriers would request reinstatement Cumulative Reinstatement Costs and freight forwarders must maintain using Form MCSA–1, pay a $10 fee and Benefits current proof of financial responsibility make the applicable insurance filing. Changes in fees for reinstatement of (liability insurance, bond, or trust fund The FMCSA assumed that the cost of USDOT Numbers and/or commercial information) with FMCSA to retain their this requirement is minimal, and is operating authority resulted in a total commercial operating authority. If an approximately equal to that of filing 10-year saving to industry of $4,808,126. insurance company or financial proof of insurance ($4). The Agency This saving to industry, however, is institution notifies FMCSA of determined that it incurs slightly less offset by an equal cost to FMCSA in lost cancellation of coverage, carriers, than $10 per request to process revenues from fees associated with property brokers, and HHG freight reinstatement requests. The $10 reinstatements. The proposed changes

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resulted in total 10-year resource costs 6. The New Application Form—MCSA– estimated a 10-year discounted resource of $60,070 to industry and $135,158 to 1 cost savings to industry of $1,354,631. FMCSA for a total resource cost to The FMCSA also calculated Agency The new Form MCSA–1 would society of $195,229. time saved associated with processing replace existing FMCSA registration the new MCSA–1 form. Based on the 5. Transfers and Name Changes forms. There would be a time cost Agency’s estimate that, due to savings for those who presently file reductions in data entry, it would save Under the URS, the Agency would no multiple application forms. New 20 minutes of processing time from not longer require ownership/management/ registrant non-exempt for-hire motor using the OP–1 series form, and its control certification when processing carriers currently file an OP–1 series determination that 56.45 percent of new applicant requests for name, address, or form and the MCS–150 form with registrants file the form, FMCSA form of business changes. Motor carriers FMCSA. Property brokers and freight estimated an 11-minute time savings per will be required to report changes in forwarders file an OP–1 series form applicant. The FMCSA multiplied the management when completing their only. All other carriers file forms in the adjusted average hourly wage estimate Form MCSA–1 biennial updates, and MCS–150 series. for the Agency by the time saved would retain their existing USDOT The FMCSA estimated an average processing the new MCSA–1 form and Number. No new or replacement completion time of just over 20 minutes the number of annual new registrants to USDOT Numbers would be issued. each 15 for the MCS–150 series forms obtain a 10-year discounted resource There were 196 requests for transfers of and 2 hours for the OP–1 forms. The cost savings of $3,391,089. operating authority filed with FMCSA FMCSA determined that 56.45 percent The proposed changes would result in in 2008. Each of the carriers who of new registrants file OP–1 series total 10-year resource cost savings to requested a transfer of operating forms, and 92.45 percent of new industry of $1,354,621 and resource cost authority paid a $300 filing fee to registrants file MCS–150 forms. Based savings to FMCSA of $3,391,089. The FMCSA for this activity. Under the URS on these percentages, FMCSA calculated sum of the resource cost savings to SNPRM, FMCSA would not accept or the current average new registrant filing industry and FMCSA equals $4,745,720, review transfer requests. Based on the completion time as just under 1 hour which is the total benefit to society. 2008 data projected to 2014, FMCSA and 26 minutes. 7. Mandatory Electronic Filing of the estimated discounted industry benefits The FMCSA proposes to require all MCSA–1 of $509,168 over 10 years from the new registrants except a Mexico- By requiring electronic submissions, elimination of the transfer fee. This domiciled motor carrier requesting to FMCSA expects to reduce processing benefit to industry would be offset by an conduct long-haul operations within the costs. Mandating electronic filing would equal cost to the Agency resulting from United States to file only Form MCSA– also offer a benefit to most carriers the loss of revenues from the transfer 1. Based on field testing, FMCSA through a reduction of the time required request filing fee. estimated that it would take those new for them to receive registration and/or registrants who would have used the The FMCSA proposes to eliminate the operating authority.17 Electronic OP–1 form 2 hours and 10 minutes to $14 filing fee currently assessed to non- submissions have the additional benefit complete the new form. The FMCSA exempt for-hire motor carriers and of reducing erroneous data through assumes that the time required for others that change their business names. automated data quality checks and entities who would have used only the This action would result in a cost increasing the transparency of the data MCS–150 or 150B would not change if savings to industry and a matching cost included in the URS. The Agency they used the MCSA–1 form instead. to the Agency. In 2008, the Agency believes that the cost savings resulting Multiplying 2 hours and 10 minutes by processed 11,141 name change requests. from reduced labor time and paperwork, 56.45 percent (the percent of new Based on the 2008 data, projected to and the benefits associated with registrants that file OP–1 series forms), 2014, FMCSA estimated 10-year reducing erroneous data and improving and adding just over 20 minutes times discounted benefits to industry of data transparency, would be difficult to the difference between 92.45 percent $1,345,722 over the 10-year period. This achieve without mandating electronic (the percent of new registrants that file $1,345,722 benefit to industry would be filing. This change, however, could MCS–150 forms) and 56.45 percent offset by an equal cost to the Agency impose a burden on entities that do not yields just over 1 hour and 20 minutes. resulting from the loss of name change have the means to file electronically or Thus, FMCSA estimated a weighted that do not wish to file electronically. filing fee revenues. average time savings of almost 6 To assess this potential burden, and to Elimination of transfer and name minutes for each new registrant (that is, determine what alternatives would be change filing fees resulted in a total 10- just under 1 hour and 26 minutes minus available to small entities, FMCSA year cost savings to industry of just over 1 hour and 20 minutes). conducted a detailed cost/benefit $509,168. The cost savings to industry Using its adjusted average hourly analysis, ‘‘Report on Benefits and Costs due to changes in filing fees, however, 16 wage estimate for drivers and its of Mandatory Electronic Filing for would be offset by an equal cost to the projection of new registrants, FMCSA FMCSA’s Unified Registration System’’, Agency resulting from reduced revenues which is included as Appendix A to the from these filing fees. Therefore, the 15 The MCS–150 form has been estimated to regulatory evaluation. The Agency projected societal costs due to require 20 minutes, and the MCS–150B form a calculated costs and benefits associated slightly longer 26 minutes. Because only about 2 elimination of the fees are zero. These with electronic filing by using estimates proposed changes resulted in no percent of carriers file the MCS–150B, the average is very close to 20 minutes. There is also an MCS– of the amount of time required to file resource costs to either industry or 150C form, but it is much less frequently used. the form and the number of expected FMCSA. The total reduction in fees for 16 Note: This activity may be performed by filers. The present value of the benefits transfers and name changes is the sum someone other than a driver. However, FMCSA resulting from mandatory electronic of $509,168 and $1,345,722, or assumed the person performing the activity would earn a wage similar to that of a driver and used the $1,854,890; this sum is a gain to driver wage rate as the best indicator of cost for this 17 Carriers subject to vetting might experience a industry and an equal loss to FMCSA. activity. more prolonged registration process.

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filing is $36,190,320 in benefits to (2) Would these impacts be different subtracting the total 10-year cost from FMCSA and $1,964,186 in benefits to 4 years after the publication date of this the total 10-year benefits for each industry. The industry also experiences notice? If so, how? provision. Table 5 presents the net a resource cost of $538,894. Thus, the (3) If the impacts are expected to be benefits of the proposed rule for each net present value of the benefits adverse, how can they be mitigated? provision presented above. The cost to associated with requiring mandatory (4) Should FMCSA provide a phase- industry associated with fee changes is electronic filing less the costs results in in period for complying with the offset by an equal gain to FMCSA due mandatory electronic filing a total net benefit to society of to increased revenues from fees. requirement? If yes, please recommend $37,615,613 over a 10-year period. Therefore, the impact to society from appropriate phase-in criteria and time the change in fees is zero. Net benefits The Agency realizes that a mandatory periods, stated in terms relative to the are estimated to be ¥$23.0 million for electronic filing requirement may publication date of the final rule. the industry and $42.6 million for involve a change of business practices (5) If you believe electronic filing FMCSA. This results in total societal net for a small number of regulated entities would be burdensome, would the benefits of the URS SNPRM of $19.6 under its jurisdiction; and with respect benefits of obtaining operating authority million. The industry would experience to these entities, we invite comments more quickly offset any potential costs a total increase in fees of ¥$58.6 about the following questions: associated with electronic filing? million (including total fees paid and (1) What would be the impact 9. Total Net Benefits From the URS fees saved). This increase in fees to the (benefits or hardships) on applicants of SNPRM industry is offset by a total $58.6 million a mandatory electronic filing The FMCSA calculated the net increase in fees received by FMCSA requirement? benefits of the proposed rule by (including fees lost and fees received).

TABLE 5—NET BENEFITS OF URS PROPOSED RULE [10-year present value]

Net benefits Net fees URS rule provision Industry Agency Industry Agency

Mandatory Electronic Filing ...... $1,425,292 $36,190,320 $0 $0 Eliminating Transfer/Name Change Requirements ...... 0 0 1,854,890 1,854,890 New Registrant Fee ...... 0 0 ¥63,583,722 63,583,722 Insurance Filing ...... ¥676,723 0 ¥1,691,808 1,691,808 Process Agent Filing ...... ¥25,067,012 3,130,736 0 0 Cancellations and Reinstatements ...... ¥60,070 ¥135,158 4,808,126 4,808,126 New MCSA–1 Application Form ...... 1,354,631 3,391,089 0 0 Net Benefits ...... ¥23,023,883 42,576,988 ¥58,612,513 58,612,513

Societal Net Benefits ...... 19,553,105 0 Note: Numbers may not add due to rounding.

V. Appendix to the Preamble— Proposed Form MCSA–1 and Instructions

BILLING CODE 4910–EX–P

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BILLING CODE 4910–EX–C

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VI. Rulemaking Analyses and Notices Secretary, in cooperation with the than $25.5 million [13 CFR 121.201].20 States, and after notice and opportunity This equates to 148 power units Executive Order 12866 (Regulatory for public comment,’’ * * * to ‘‘issue ($25,500,000/$172,000). Thus, FMCSA Planning and Review) and DOT regulations to replace the current considers motor carriers with 148 power Regulatory Policies and Procedures Department of Transportation units or less to be a small business for The FMCSA has preliminarily identification number system, the single SBA purposes. determined that this proposed rule is a State registration system under section With regards to bus power units, the significant regulatory action within the 14504, the registration system contained Agency conducted a preliminary meaning of Executive Order 12866, and in this chapter, and the financial analysis to estimate the average number is significant within the meaning of responsibility information system under of power units (PUs) for a small entity Department of Transportation regulatory section 13906 with a single, on-line, earning $7 million annually, based on policies and procedures (DOT Order Federal system.’’ an assumption that a passenger carrying 2100.5 dated May 22, 1980; 44 FR CMV generates annual revenues of Title 49 U.S.C. 13908(d) authorizes 11034, February 26, 1979) because it is $150,000. This estimate compares the Secretary to establish, under expected to generate significant public reasonably to the estimated average sections 9701 of title 31, United States interest. However, it is anticipated that annual revenue per power unit for the Code, a fee system for the Unified the economic impact of the revisions in trucking industry ($172,000). A lower Carrier Registration System according to this SNPRM would not exceed the estimate was used because buses certain guidelines providing for fee annual $100 million threshold for generally do not accumulate as many economic significance. The Office of limits for registration, filing evidence of vehicle miles traveled (VMT) per power Management and Budget (OMB) has financial responsibility and filing units as trucks,21 and it is assumed reviewed this proposed rule. information regarding agents for service therefore that they would generate less of process. Regulatory Flexibility Act revenue on average. The analysis These directives specifically require concluded that passenger carriers with The Regulatory Flexibility Act [Pub. FMCSA to undertake some of the 47 PUs or fewer ($7,000,000 divided by L. 96–354, 5 U.S.C. 601–612] requires actions in this proposal. The remaining $150,000/PU = 46.7 PU) would be Federal agencies to take small related changes facilitate the smooth considered small entities. The Agency businesses’ concerns into account when operation of a unified Federal on-line then looked at the number and developing, writing, publicizing, registration system. percentage of passenger carriers promulgating, and enforcing (3) A description and, where feasible, registered with FMCSA that would fall regulations. To achieve this, the Act an estimate of the number of small under that definition (of having 47 PUs requires that agencies detail how they entities to which the proposed rule or less). The results show that 28,838 22 have met these concerns through a would apply. The FMCSA would subject (or 99%) of all active registered Regulatory Flexibility Analysis (RFA). all motor carriers engaging in interstate passenger carriers have 47 PUs or less. An initial RFA, which accompanies an commerce (private, exempt and non- Therefore, the overwhelming majority of NPRM, must include six elements. The exempt for-hire) to this proposal. passenger carriers would be considered Agency has listed these elements below small entities. and addressed each element with regard Not all carriers are required to report FMCSA believes that this 150 power to FMCSA’s SNPRM. their revenue to the Agency; but all unit figure would be applicable to (1) A description of the reasons why carriers are required to provide the private carriers as well: Because the action by the Agency is being Agency with the number of power units sizes of the fleets they are able to sustain considered. The FMCSA is taking this they operate when they apply for are indicative of the overall size of their action in response to section 103 of the operating authority and to update this operations, large CMV fleets can ICC Termination Act of 1995 (ICCTA), figure biennially. Because FMCSA does generally only be managed by large as amended by section 4304 of not have direct revenue figures, power firms. There is a risk, however, of SAFETEA–LU, which, among other units serve as a proxy to determine the overstating the number of small things, requires the Secretary of carrier size that would qualify as a small businesses because the operations of Transportation (Secretary) to propose business given the SBA’s revenue some large non-truck or bus firms may regulations to replace four current threshold. In order to produce this require only a small number of CMVs. identification and registration systems estimate, it is necessary to determine the The FMCSA believes the proposed with a single, online, Federal system. average revenue generated by a power rule would affect roughly 600,000 small The purpose of this proposal is to unit. With regards to truck power units, carriers with recent activity annually on consolidate and simplify current the Agency determined in the 2003 an ongoing basis.23 The Agency expects 18 Federal registration processes and to Hours of Service Rulemaking RIA that a larger number of affected entities in increase public accessibility to data a power unit produces about $172,000 the first year of the analysis period about interstate motor carriers, property in revenue annually (adjusted for when exempt for-hire carriers with brokers, freight forwarders, and other inflation).19 The Small Business entities. Pursuant to the statutory Administration (SBA) defines a small 20 U.S. Small Business Administration Table of mandate, FMCSA proposes to charge entity in the truck transportation sub- Small Business Size Standards matched to North registration and administrative fees that sector (North American Industry American Industry Classification (NAIC) System would enable FMCSA to recoup the Classification System [NAICS] 484) as codes, effective August 22, 2008. See NAIC subsector 484, Truck Transportation. costs associated with processing an entity with annual revenue of less 21 FMCSA Large Truck and Bus Crash Facts 2008, registration applications and Tables 1 and 20; http://fmcsa.dot.gov/facts- administrative filings and maintaining 18 Regulatory Analysis for: Hours of Service of research/LTBCF2008/Index-2008Large this system. Drivers; Driver Rest and Sleep for Safe Operations, TruckandBusCrashFacts.aspx (2) A succinct statement of the Final Rule-Federal Motor Carrier Safety 22 FMCSA MCMIS snapshot on 2/19/2010. Administration. 68 FR 22456-Published 4/23/2003. 23 This population estimate originates from tables objectives of, and legal basis for, the 19 The 2000 TTS Blue Book of Trucking 1 and 2, above. FMCSA used the median year proposed rule. The ICCTA created a Companies, number adjusted to 2008 dollars for estimate to account for the net growth in new new 49 U.S.C. 13908 directing ‘‘[t]he inflation. entrants and the carriers with recent activity.

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recent activity and private carriers with be even smaller. The FMCSA would Unfunded Mandates Reform Act of 1995 recent activity make administrative require property brokers and freight The Unfunded Mandates Reform Act filings for the first time. The estimated forwarders to register with FMCSA and of 1995 [Pub. L. 104–4; 2 U.S.C. 1532] first-year costs of the URS rule on new obtain USDOT Numbers under the requires each Agency to assess the entrants would be equal to 0.250 proposed rule, which is a new effects of its regulatory actions on State, percent of average revenue for a requirement. However, these entities local, and Tribal governments and the trucking motor carrier and 0.287 percent already register with FMCSA and the private sector. Any Agency of average revenue for a passenger motor USDOT Number would simply be a promulgating a rule likely to result in a carrier. The first-year costs of the URS replacement for the MC Numbers or FF Federal mandate requiring expenditures SNPRM on carriers with recent activity Numbers currently issued to brokers by a State, local, or Tribal government would be equal to 0.079 percent of and freight forwarders, respectively. or by the private sector of $141.3 average revenue for a trucking motor Therefore, FMCSA does not believe the million or more in any one year must carrier and 0.091 percent of average new reporting or recordkeeping prepare a written statement revenue for a passenger motor carrier. requirements would impose any incorporating various assessments, The URS rule is thus not expected to significant burden. Like non-exempt for- estimates, and descriptions that are have a significant economic impact on hire carriers, new entrant brokers and delineated in the Act. The FMCSA has small new entrants and carriers with freight forwarders are currently required preliminarily determined that the recent activity. to pay a $300 registration fee, so there changes proposed in this SNPRM would (4) A description of the projected would be no change in financial burden not have an impact of $141.3 million or reporting, recordkeeping, and other on these entities. more in any one given year. compliance requirements of the The FMCSA does not expect that any National Environmental Policy Act proposed rule, including an estimate of special skills for new registrants would the classes of small entities that will be be necessary beyond the ability to The Agency analyzed this proposed subject to the requirements and the type access the Internet and respond to rule for the purpose of the National of professional skills necessary for questions with information about their Environmental Policy Act of 1969 preparation of the report or record. This organization and operations. (NEPA) (42 U.S.C. 4321 et seq.) and proposed rule primarily concerns preliminarily determined under our submission of information to FMCSA in (5) An identification, to the extent environmental procedures Order 5610.1, support of registration. While this practicable, of all relevant Federal rules issued March 1, 2004 (69 FR 9680), that includes recordkeeping and reporting that may duplicate, overlap, or conflict this action is categorically excluded for non-exempt for-hire carriers, there with the proposed rule. The FMCSA is (CE) under Appendix 2, paragraphs 6.e would only be the replacement of one aware of Federal rules that may and 6.h of the Order from further type of reporting with another. duplicate this SNPRM to some extent environmental documentation. The CE Therefore, there would be no increase in for hazardous materials motor carriers under Appendix 2, paragraph 6.e relates reporting or recordkeeping requirements required to register. Although some to establishing regulations and actions for non-exempt for-hire carriers. Non- basic identification information may be taken pursuant to the requirements exempt for-hire carriers are already filed with both FMCSA and the Pipeline concerning applications for operating required to pay a $300 registration fee, and Hazardous Materials Safety authority and certificates of registration. so there would be no change in financial Administration (PHMSA), another The CE under Appendix 2, paragraph burden for these entities as a result of USDOT modal administration, there is 6.h relates to establishing regulations the Agency’s implementation of the no conflict. PHMSA requires shippers and actions taken pursuant to the proposed rule. Private and exempt for- and transporters of certain types and requirements implementing procedures hire carriers would have the same quantities of hazardous materials to to collect fees that will be charged for replacement reporting and register in its Hazardous Materials motor carrier registrations and recordkeeping requirements as non- Registration System. Transportation insurance for the following activities: (1) exempt for-hire carriers regarding modes required to register with PHMSA Application filings; (2) records searches; general registration but would also have include motor carriers, airlines, ship and (3) reviewing, copying, certifying, to designate a process agent for the first lines, and railroads. The PHMSA and related services. In addition, the time under the proposed rule. Exempt Hazardous Materials Registration Agency believes that this proposed for-hire and private hazmat carriers System cannot be combined with URS action includes no extraordinary would have to file proof of insurance for because entities other than those under circumstances that would have any the first time. These requirements FMCSA jurisdiction must register in effect on the quality of the human would be new but would not impose PHMSA’s system. environment. Thus, the SNPRM does significant reporting or recordkeeping (6) A description of any significant not require an environmental requirements on the affected entities, as alternatives to the proposed rule which assessment or an environmental impact the filings would be made by insurance minimize any significant impacts on statement. companies on the carriers’ behalf. New small entities. The Agency did not The FMCSA also has analyzed this entrant exempt for-hire carriers, private identify any significant alternatives to SNPRM under the Clean Air Act, as carriers, and other entities are not the rule that could lessen the burden on amended (CAA), sec. 176(c) (42 U.S.C. currently required to pay a registration small entities without compromising its 7401 et seq.), and implementing fee but would be required to pay a $300 goals or the Agency’s statutory mandate. regulations promulgated by the registration fee under the proposed rule. Because small businesses are such a Environmental Protection Agency. For nearly all affected entities, this fee large part of the demographic the Approval of this proposal is exempt would represent a small fraction (well Agency regulates, providing alternatives from the CAA’s general conformity below one percent, even for very small to small business to permit requirement because it involves policy firms that do little more than operate a noncompliance with FMCSA development and rulemaking activities single truck) of their annual revenues; regulations is not feasible and not regarding registration of regulated on an annualized basis the cost would consistent with sound public policy. entities with FMCSA for commercial,

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safety and financial responsibility paperwork collection processes. This requirements set forth in proposed purposes. See 40 CFR 93.153(c)(2)(vi). includes streamlining the FMCSA FMCSA Form MCSA–1. There are also The proposed changes would not result registration, insurance and designation five approved information collections in any emissions increases nor would of process agent filing processes and that would be affected by this SNPRM they have any potential to result in implementing mandatory electronic as follows: (1) OMB Control No. 2126– emissions that are above the general online filing of these applications, as 0013, titled ‘‘Motor Carrier conformity rule’s de minimis emission well as eliminating some outdated filing Identification Report;’’ (2) OMB Control threshold levels. Moreover, it is requirements. The above information No. 2126–0015, titled ‘‘Designation of reasonably foreseeable that the proposed collection burden reductions would be Agents, Motor Carriers, Brokers and changes would not increase total CMV partially offset in later years because Freight Forwarders;’’ (3) OMB Control mileage or change the routing of CMVs, FMCSA plans to implement new filing No. 2126–0016, titled ‘‘Licensing how CMVs operate, or the CMV fleet- requirements upon certain groups of Application for Motor Carrier Operating mix of motor carriers. This SNPRM was carriers/entities within the industry Authority;’’ (4) OMB Control No. 2126– mandated under sec. 103 of the ICCTA. during the first year. This is primarily 0017, titled ‘‘Financial Responsibility, It would consolidate and simplify the due to the assumption that all existing Trucking, and Freight Forwarding;’’ and Federal registration processes and private and exempt for-hire carriers (5) OMB Control No. 2126–0019, titled increase public accessibility to data would file proof of process agent ‘‘Application for Certificate of about interstate and foreign motor designation in the first year and the Registration for Foreign Motor Carriers carriers, property brokers, freight existing private motor carriers and Foreign Motor Private Carriers.’’ forwarders and other entities. transporting hazardous materials The proposed new MCSA–1 Form Paperwork Reduction Act interstate and exempt-for-hire carriers would replace the forms covered by Under the Paperwork Reduction Act would file evidence of insurance, as a 2126–0013, 0016, and 0019. The of 1995 (PRA) (44 U.S.C. 3501–3520), a result of the new requirements set forth proposed rule would also increase the Federal Agency must obtain approval in this SNPRM. However, once the number of entities that would be from OMB for each collection of initial process agent and insurance required to file information on process information it conducts, sponsors, or filing requirements for existing carriers agents (2126–0015) and insurance requires through regulations. The are met, the overall net result would be coverage (2126–0017). FMCSA analyzed this proposal and a more streamlined process in future The total burden for the five approved preliminarily determined that its years for FMCSA registration of motor information collections noted above is implementation would streamline the carrier, broker, freight-forwarder and 248,355 hours. The table below captures information collection burden on motor other applicants the Agency regulates. the current and proposed burden hours carriers and other regulated entities, This proposal would create a new associated with the five approved relative to the baseline, or current information collection to cover the information collections.

CURRENT AND PROPOSED INFORMATION COLLECTION BURDENS

Burden hours Burden hours OMB Approval No. currently 1 Change approved proposed

2126–NEW ...... 0 127,728 127,728 2126–0013 ...... 109,005 0 (109,005 ) 2126–0015 ...... 14,835 69,373 54,538 2126–0016 ...... 55,095 0 (55,095) 2126–0017 ...... 66,960 81,193 (14,233) 2126–0019 ...... 2,460 0 (2,460)

Total ...... 248,355 278,293 29,938 1 The estimates in this column reflect first year information collection burdens. Many of these information collections would significantly de- crease in later years.

An explanation of how each of the six year one × 10 minutes per form, divided information collection, which requires information collections shown above by 60 minutes/hr) + 2,053 hours for motor carriers and others to file the would be affected by this proposal is name/address change requests (12,317 name of process agents that can be provided below. requests × 0.167 hours)]. served with legal papers, is currently OMB Control No. 2126–NEW. Unified OMB Control No. 2126–0013. Motor approved at 14,835 burden hours. This Registration System, Form MCSA–1. Carrier Identification Report, information collection would increase The new form would replace the forms Applications for USDOT Number. The to 69,373 burden hours [327,226 new covered by three existing information Agency anticipates that all of the filers × 10 minutes per filing/60 collections. The estimated time to requirements under this information minutes/hr]. This increase is due to complete the form for new entrants, file collection covering the MCS–150, MCS– FMCSA’s proposal to extend the biennial updates, and request changes is 150B, and MCS–150C forms would be designation of process agent filing 127,728 burden hours [82,115 hours for folded into OMB Control No. 2126– requirement to include private motor new registrants (61,280 new motor NEW (see above) and the forms replaced carriers and exempt for-hire motor carriers, brokers, freight forwarders, and by the MCSA–1. carriers. The FMCSA assumes that no other entities × 1.34 hours per form) + OMB Control No. 2126–0015. existing private or exempt for-hire 43,560 hours for biennial updates Designation of Agents, Motor Carriers, motor carriers currently have process (261,360 registrants required to file in Brokers, and Freight Forwarders. This agents on file and that all would

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designate agents with FMCSA as a result information collection activity would be NPRM upon their operations. The of the proposed requirements set forth developed by FMCSA. The Agency also Agency has taken into consideration in this SNPRM. would seek OMB approval for any their comments in its decisionmaking OMB Control No. 2126–0016. additional burdens proposed, if not process for this SNPRM. Thus, FMCSA Licensing Applications for Motor already covered by existing OMB has preliminarily determined that this Carrier Operating Authority. This approvals given to the Agency. proposal would not have significant information collection, which covers Executive Order 12630 (Taking of Federalism implications or limit the for-hire carriers, freight forwarders and policymaking discretion of the States. property brokers, is currently approved Private Property) at 55,095 burden hours. Under this This proposed rule would not affect a Executive Order 12372 proposal, all requirements included in taking of private property or otherwise (Intergovernmental Review) this information collection would be have taking implications under folded into OMB Control No. 2126– Executive Order 12630, Governmental The regulations implementing NEW (see above) and the forms replaced Actions and Interference with Executive Order 12372 regarding by the MCSA–1. Basic identification Constitutionally Protected Property intergovernmental consultation on information that registrants complete on Rights. Federal programs and activities do not these forms and MCS–150 forms will apply to this program. Executive Order 12988 (Civil Justice only need to be completed once under Reform) Executive Order 13211 (Energy Supply, the proposed rule. Distribution, or Use) OMB Control No. 2126–0017. This proposed rule meets applicable Financial Responsibility—Motor standards in sections 3(a) and 3(b)(2) of The FMCSA has analyzed this Carriers, Freight Forwarders and Executive Order 12988, Civil Justice proposed rule under Executive Order Brokers. This information collection, Reform, to minimize litigation, 13211, ‘‘Actions Concerning Regulations which in almost all cases requires eliminate ambiguity, and reduce That Significantly Affect Energy Supply, insurers to file a certification of burden. Distribution, or Use.’’ This proposal is coverage for certain entities, is currently Executive Order 13045 (Protection of not a significant energy action within approved at 66,960 burden hours. Children) the meaning of section 4(b) of the Changes would be required to this Executive Order. This proposal is a information collection due to FMCSA’s Executive Order 13045, ‘‘Protection of procedural action, is not economically proposal to require exempt for-hire Children from Environmental Health significant, and would not have a motor carriers and private interstate Risks and Safety Risks’’ (April 23, 1997, significant adverse effect on the supply, motor carriers of hazardous materials to 62 FR 19885), requires that agencies distribution, or use of energy. file proof of liability insurance with issuing economically significant rules, FMCSA. As all but a few of these filings which also concern an environmental Privacy Impact Analysis are electronic (self-insurance filings will health or safety risk that an Agency has still be done on paper), the time reason to believe may The FMCSA conducted a privacy required would be adjusted downward disproportionately affect children, must impact assessment of this rule as to reflect the efficiencies gained. The include an evaluation of the required by section 522(a)(5) of division revised burden would be 81,193 hours environmental health and safety effects H of the FY 2005 Omnibus [485,956 filings × 10 minutes/60 plus 5 of the regulation on children. Section 5 Appropriations Act, Pub. L. 108–447, self-insurance filings × 40 hrs] of Executive Order 13045 directs an 118 Stat. 3268 (Dec. 8, 2004) [set out as OMB Control No. 2126–0019. Agency to submit for a covered a note to 5 U.S.C. 552a]. The assessment Application for Certificate of regulatory action an evaluation of its considers any impacts of the final rule Registration for Foreign Motor Carriers environmental health or safety effects on the privacy of information in an and Foreign Motor Private Carriers. on children. The FMCSA has identifiable form and related matters. Under this proposal, the requirements preliminarily determined that this The FMCSA has determined that this included in this approved information proposed rule is not a covered SNPRM would impact the handling of collection for the OP–2 form, which regulatory action as defined under PII. The FMCSA has also determined covers operating authority for Mexico- Executive Order 13045. This the risks and effects the rulemaking domiciled carriers that operate solely in determination is based upon the fact might have on collecting, storing, and the commercial zones on the border, that this proposed rule is not sharing PII and has examined and would be folded into OMB Control No. economically significant under evaluated protections and alternative 2126–NEW (see above), resulting in a Executive Order 12866, because the information handling processes in order net decrease of 2,460 burden hours. The changes proposed in this rule would not to mitigate potential privacy risks. The FMCSA will discontinue this have an impact of $100 million or more PIA for this proposed rulemaking is information collection after the final in any one given year. This proposal available for review in the docket for rule is approved for this rulemaking. would not constitute an environmental this rulemaking. The proposals contained in this health risk or safety risk that would List of Subjects SNPRM, affecting five currently disproportionately affect children. approved information collections and 49 CFR Part 360 one new information collection, would Executive Order 13132 (Federalism) result in a net increase of 10,787 burden This proposed rule has been analyzed Administrative practice and hours in the Agency’s information in accordance with the principles and procedure, Brokers, Buses, Freight collection budget for the first year. criteria in Executive Order 13132, dated forwarders, Hazardous materials Additional information collection August 4, 1999 (64 FR 43255, August transportation, Highway safety, activity and possibly additional OMB 10, 1999). The FMCSA consulted with Insurance, Motor carriers, Motor vehicle forms may be identified and developed State licensing agencies participating in safety, Moving of household goods, as the rulemaking process proceeds. If its PRISM program to discuss Penalties, Reporting and recordkeeping so, an analysis of any additional anticipated impacts of the May 2005 requirements, Surety bonds.

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49 CFR Part 365 their authenticity, including clerical and billing cycle. The billing date is the date Administrative practice and administrative work incidental thereto, that the bill is prepared and printed. procedure, Brokers, Buses, Freight at the rate of $21 per hour; The billing cycle is the period between forwarders, Motor carriers, Moving of (c) Copies of the public documents, at the billing date in one month and the household goods. the rate of $.80 per letter size or legal billing date in the next month. A bill for size exposure. A minimum charge of $5 each account which has activity or an 49 CFR Part 366 will be made for this service; and unpaid balance during the billing cycle Brokers, Motor carriers, Freight (d) Search and copying services will be sent on the billing date each forwarders, Process agents. requiring information technology (IT), month. Payment will be due 20 days as follows: from the billing date. Payments received 49 CFR Part 368 (1) A fee of $50 per hour for before the next billing date are applied Administrative practice and professional staff time will be charged to the account. Interest will accrue in procedure, Insurance, Motor carriers. when it is required to fulfill a request accordance with 31 CFR 901.9. for electronic data. (ii) The Federal Claims Collection 49 CFR Part 385 (2) The fee for computer searches will Standards, including disclosure to Administrative practices and be set at the current rate for computer consumer reporting agencies and the procedure, Highway safety, Motor service. Information on those charges use of collection agencies, as set forth in carriers, Motor vehicle safety, Reporting can be obtained from the Office of 31 CFR part 901 will be utilized to and recordkeeping requirements. Information Technology (MC–RI). encourage payment where appropriate. (3) Printing shall be charged at the (iii) An account holder who files a 49 CFR Part 387 rate of $.10 per page of computer- petition in bankruptcy or who is the Buses, Freight, Freight forwarders, generated output with a minimum subject of a bankruptcy proceeding must Hazardous materials transportation, charge of $1. There will also be a charge provide the following information to the Highway safety, Insurance, for the media provided (e.g., CD ROMs) Office of Enforcement and Compliance, Intergovernmental relations, Motor based on the Agency’s costs for such Commercial Enforcement Division (MC– carriers, Motor vehicle safety, Moving of media. ECC) at http://www.fmcsa.dot.gov: household goods, Penalties, Reporting (e) Exception. No fee shall be charged (A) The filing date of the bankruptcy and recordkeeping requirements, Surety under this section to the following petition; bonds. entities: (B) The court in which the bankruptcy (1) Any Agency of the Federal 49 CFR Part 390 petition was filed; Government or a State government or (C) The type of bankruptcy Highway safety, Intermodal any political subdivision of any such proceeding; transportation, Motor carriers, Motor government for access to or retrieval of (D) The name, address, and telephone vehicle safety, reporting and information and data from the Unified number of its representative in the recordkeeping requirements. Carrier Registration System for its own bankruptcy proceeding; and (E) The name, address, and telephone 49 CFR Part 392 use; or (2) Any representative of a motor number of the bankruptcy trustee, if one Highway safety, Motor carriers. carrier, motor private carrier, leasing has been appointed. For reasons set forth in the preamble, company, broker, or freight forwarder (3) Fees will be payable through the FMCSA proposes to amend title 49, (as each is defined in 49 U.S.C. 13102) U.S. Department of the Treasury secure Code of Federal Regulations, chapter III, for the access to or retrieval of the payment system, Pay.gov and are made as follows: individual information related to such directly from the payor’s bank account 1. Revise part 360 to read as follows: entity from the Unified Carrier or by credit/debit card. Registration System for the individual (b) Any filing that is not accompanied PART 360—FEES FOR MOTOR use of such entity. by the appropriate filing fee will be CARRIER REGISTRATION AND rejected. INSURANCE § 360.3 Filing fees. (c) Fees not refundable. Fees will be (a) Manner of payment. (1) Except for assessed for every filing listed in the Sec. 360.1 Fees for registration-related services. the insurance fees described in the next schedule of fees contained in paragraph 360.3 Filing fees. sentence, all filing fees will be payable (f) of this section, subject to the 360.5 Updating user fees. at the time the application, petition, or exceptions contained in paragraphs (d) other document is electronically filed. and (e) of this section. After the Authority: 31 U.S.C. 9701; 49 U.S.C. 13908; and 49 CFR 1.73. The service fee for insurance, surety or application, petition, or other document self-insurer accepted certificate of has been accepted for filing by FMCSA, § 360.1 Fees for registration-related insurance, surety bond or other the filing fee will not be refunded, services. instrument submitted in lieu of a broker regardless of whether the application, Certifications and copies of public surety bond must be charged to an petition, or other document is granted or records and documents on file with the insurance service account established approved, denied, rejected before Federal Motor Carrier Safety by FMCSA in accordance with docketing, dismissed, or withdrawn. Administration (FMCSA) will be paragraph (a)(2) of this section. (d) Multiple authorities. (1) A separate furnished on the following basis, (2) Billing account procedure. A filing fee is required for each type of pursuant to USDOT Freedom of request must be submitted to the Office authority sought in each transportation Information Act regulations at 49 CFR of Enforcement and Compliance, mode, such as broker authority for Part 7: Commercial Enforcement Division (MC– motor property carriers. (a) Certificate of the Director, Office of ECC) at http://www.fmcsa.dot.gov to (2) Separate fees will be assessed for Management and Information Services, establish an insurance service fee the filing of temporary operating as to the authenticity of documents, $12; account. authority applications as provided in (b) Service involved in locating (i) Each account will have a specific paragraph (f)(2) of this section, records to be certified and determining billing date within each month and a regardless of whether such applications

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are related to an application for government subsidized transportation applicant may request a waiver or corresponding permanent operating company. reduction of the fee prescribed in this authority. (2) Filing fees are waived for a motor part. Such request should be addressed carrier of passengers that receives a (e) Waiver or reduction of filing fees. to the Director, Office of Information grant from the Federal Transit Technology. It is the general policy of the Federal Administration either directly or Motor Carrier Safety Administration not through a third-party contract to provide (ii) Basis. The applicant must show to waive or reduce filing fees except as passenger transportation under an the waiver or reduction of the fee is in follows: agreement with a State or local the best interest of the public, or that (1) Filing fees are waived for an government pursuant to 49 U.S.C. payment of the fee would impose an application which is filed by a Federal section 5307, 5310, 5311, 5316 or 5317. undue hardship upon the requestor. government agency, or a State or local (3) The FMCSA will consider other (iii) FMCSA action. The Director, government entity. For purposes of this requests for waivers or fee reductions Office of Information Technology, will section the phrases ‘‘Federal only in extraordinary situations and in notify the applicant of the decision to government agency’’ or ‘‘government accordance with the following grant or deny the request for waiver or entity’’ do not include a quasi- procedure: reduction. (i) When to request. At the time that governmental corporation or a filing is submitted to FMCSA the (f) Schedule of filing fees:

Type of proceeding Fee

Part I: Registration: (1) ...... An application for USDOT Registration pursuant to 49 CFR part 390, $300. subpart C. (2) ...... An application for motor carrier temporary authority to provide emer- $100. gency relief in response to a national emergency or natural dis- aster following an emergency declaration under § 390.23 of this subchapter. (3) ...... Biennial update of registration ...... $0. (4) ...... Request for change of name, address, or form of business ...... $0. (5) ...... Request for cancellation of registration ...... $0. (6) ...... Request for registration reinstatemen ...... $10. (7) ...... Designation of process agen ...... $0. Part II: Insurance: (8) ...... A service fee for insurer, surety, or self-insurer accepted certificate of $10 per accepted certificate, sur- insurance, surety bond, and other instrument submitted in lieu of a ety bond or other instrument broker surety bond. submitted in lieu of a broker sur- ety bond. (9) ...... (i) An application for original qualification as self-insurer for bodily in- [Reserved]. jury and property damage insurance (BI&PD). (ii) An application for original qualification as self-insurer for cargo in- [Reserved]. surance. (iii) Fee for quarterly self-insurance monitoring filing ...... [Reserved]. (iv) Fee for annual self-insurance monitoring filing ...... [Reserved].

§ 360.5 Updating user fees. employees. Base level direct labor costs office directly associated with user fee (a) Update. Each fee established in are direct labor costs determined by the activity. Actual updating of office this subpart may be updated, as deemed cost study in Regulations Governing general and administrative costs will be necessary by FMCSA. Fees For Service, 1 I.C.C. 2d 60 (1984), accomplished by applying the current (b) Publication and effective dates. or subsequent cost studies. The base percentage factor to updated direct Notice of updated fees will be published period for measuring changes shall be labor, including current governmental in the Federal Register in a final rule April 1984 or the year of the last cost overhead and current operations and will become effective 30 days after study. overhead costs. publication. (2) Operations overhead shall be (ii) The FMCSA general and (c) Payment of fees. Any person developed on the basis of current administrative costs shall be developed submitting a filing for which a filing fee relationships existing on a weighted on the basis of current level costs; i.e., is established must pay the fee basis, for indirect labor applicable to the dividing actual FMCSA general and applicable on the date of the filing or first supervisory work centers directly administrative costs for the current request for services. associated with user fee activity. Actual fiscal year by total Agency expenses for (d) Method of updating fees. Each fee updating of operations overhead will be the current fiscal year. Actual updating shall be updated by updating the cost accomplished by applying the current of FMCSA general and administrative components comprising the fee. percentage factor to updated direct costs will be accomplished by applying However, fees shall not exceed the labor, including current governmental the current percentage factor to updated maximum amounts established by law. overhead costs. direct labor, including current Cost components shall be updated as (3)(i) Office general and governmental overhead, operations follows: administrative costs shall be developed overhead and office general and (1) Direct labor costs shall be updated on the basis of current levels costs, i.e., administrative costs. by multiplying base level direct labor dividing actual office general and (4) Publication costs shall be adjusted costs by percentage changes in average administrative costs for the current on the basis of known changes in the wages and salaries of FMCSA fiscal year by total office costs for the costs applicable to publication of

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material in the Federal Register or (3) Freight forwarder of general need that cannot be met by existing FMCSA Register. commodities or household goods. carrier service. (e) Rounding of updated fees. (1) (b) A separate filing fee in the amount (1) Applications for TA will be Updated fees shall be rounded in the set forth at 49 CFR 360.3(f) is required entertained only when an emergency following manner: for each type of authority sought in declaration has been made pursuant to (i) Fees between $1 and $30 will be § 365.105(a). § 390.23 of this subchapter. rounded to the nearest $1; (c) Form MCSA–1 is an electronic (2) Temporary authority must be (ii) Fees between $30 and $100 will be application and is available, including requested by filing Form MCSA–1 with rounded to the nearest $10; complete instructions, from the FMCSA the Division Office that has jurisdiction (iii) Fees between $100 and $999 will Web site at http://www.fmcsa.dot.gov over the State in which the applicant’s be rounded to the nearest $50; and (Keyword ‘‘MCSA–1’’). principal place of business is located. (iv) Fees above $1,000 will be 6. Amend § 365.107 by revising (3) Applications for temporary rounded to the nearest $100. paragraphs (a)(1) through (3), and authority are not subject to protest. (2) This rounding procedure excludes paragraphs (b) through (e), to read as (4) Motor carriers granted temporary copying, printing and search fees. follows: authority must comply with financial PART 365—RULES GOVERNING responsibility requirements under part § 365.107 Types of applications. 387 of this subchapter. APPLICATIONS FOR OPERATING (a) * * * AUTHORITY (5) Only a U.S.-domiciled motor (1) Motor carrier of property (except carrier is eligible to receive temporary 2. The authority citation for part 365 household goods). authority. is revised to read as follows: (2) Broker of general commodities or 7. Amend § 365.109 by revising household goods. Authority: 5 U.S.C. 553 and 559; 49 U.S.C. paragraphs (a)(5) and (6) and (b) to read (3) Certain types of motor carrier of as follows: 13101, 13301, 13901–13906, 13908, 14708, passenger applications as described in 31138, and 31144; 49 CFR 1.73. Form MCSA–1. § 365.109 FMCSA review of the 3. Amend § 365.101 by revising (b) Motor carrier of passenger ‘‘public application. paragraphs (a) and (h) to read as follows: interest’’ applications as described in (a) * * * § 365.101 Applications governed by these Form MCSA–1. (5) All applicants must file the rules. (c) Intrastate motor passenger appropriate evidence of financial applications under 49 U.S.C. responsibility within 90 days from the * * * * * 13902(b)(3) as described in Form date notice of the application is (a) Applications for certificates of MCSA–1. published in the FMCSA Register: motor carrier registration to operate as a (d) Motor carrier of household goods (i) Form BMC–91 or 91X or BMC 82 motor carrier of property or passengers. applications, including Mexico- or non- surety bond—Bodily injury and * * * * * North America-domiciled carrier property damage (motor property and (h) Applications for Mexico- applicants. In addition to meeting the passenger carriers; and freight domiciled motor carriers to operate in fitness standard under paragraph (a) of forwarders that provide pickup or foreign commerce as for hire or private this section, an applicant seeking delivery service directly or by using a motor carriers of property (including authority to operate as a motor carrier of local delivery service under their exempt items) between Mexico and all household goods must: control), points in the United States. Under (1) Provide evidence of participation (ii) Form BMC–84—Surety bond or NAFTA Annex 1, page I–U–20, a in an arbitration program and provide a Form BMC–85—trust fund agreement Mexico-domiciled motor carrier may not copy of the notice of the arbitration (property brokers of general provide point-to-point transportation program as required by 49 U.S.C. commodities and household goods). services, including express delivery 14708(b)(2); (iii) Form BMC–34 or BMC 83 surety services, within the United States for (2) Identify its tariff and provide a bond—Cargo liability (household goods goods other than international cargo. copy of the notice of the availability of motor carriers and household goods * * * * * that tariff for inspection as required by freight forwarders). 49 U.S.C. 13702(c); (6) Applicants also must submit Form § 365.103 [Removed and reserved] (3) Provide evidence that it has access BOC–3—Designation of Agents—Motor 4. Remove and reserve § 365.103. to, has read, is familiar with, and will Carriers, Brokers and Freight 5. Revise § 365.105 to read as follows: observe all applicable Federal laws Forwarders—within 90 days from the § 365.105 Starting the application process: relating to consumer protection, date notice of the application is Form MCSA–1, FMCSA Registration/Update estimating, consumers’ rights and published in the FMCSA Register. (USDOT Number—Operating Authority responsibilities, and options for * * * * * Application) limitations of liability for loss and (b) A summary of the application will (a) Each applicant must apply for damage; and be published in the FMCSA Register to operating authority by electronically (4) Disclose any relationship give notice to the public in case anyone filing Form MCSA–1, FMCSA involving common stock, common wishes to oppose the application. Registration/Update (USDOT Number— ownership, common management, or 8. Add § 365.110 to read as follows: Operating Authority Application), to common familial relationships between request authority pursuant to 49 U.S.C. the applicant and any other motor § 365.110 New Entrant Safety Assurance 13902, 13903 or 13904 to operate as carrier, freight forwarder, or broker of Program. described in paragraphs (a)(1) through household goods within 3 years of the For motor carriers operating (a)(3) of this section as a: proposed date of registration. commercial motor vehicles as defined in (1) Motor carrier of property or (e) Temporary authority (TA) for 49 U.S.C. 31132, operating authority passengers, motor carriers. These applications obtained under procedures in this part (2) Broker of general commodities or require a finding that there is or soon does not become permanent until the household goods, or will be an immediate transportation applicant satisfactorily completes the

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New Entrant Safety Assurance Program § 365.507 FMCSA action on the no later than [insert date 180 days from in part 385 of this subchapter. application. compliance date of final rule]. Failure to 9. Amend § 365.111 by revising * * * * * file a designation in accordance with paragraph (a) to read as follows: (e) * * * this paragraph will result in (2) Electronically file Form BOC–3— deactivation of the carrier’s USDOT § 365.111 Appeals to rejections of the Designation of Agents—Motor Carriers, Number. application. Brokers and Freight Forwarders, as 21. Revise § 366.3 to read as follows: (a) An applicant has the right to required by part 366 of this subchapter; appeal rejection of the application. The and § 366.3 Eligible persons. appeal must be filed at the FMCSA, * * * * * All persons (as defined at 49 U.S.C. Office of the Director of Information 17. Amend § 365.509 by revising 13102(18)) designated must reside or Technology, 1200 New Jersey Ave., SE., paragraph (a) to read as follows: maintain an office in the State for which Washington, DC 20590, within 10 days they are designated. If a State official is of the date of the letter of rejection. § 365.509 Requirement to notify FMCSA of designated, evidence of his or her change in applicant information. * * * * * willingness to accept service of process 10. Revise § 365.119 to read as (a) A motor carrier subject to this must be furnished. follows: subpart must notify FMCSA of any 22. Amend § 366.4 by revising changes or corrections to the paragraph (a) and adding a new § 365.119 Opposed applications. information in Section A of Form paragraph (c) to read as follows: MCSA–1—FMCSA Registration/Update If the application is opposed, § 366.4 Required States. opposing parties are required to send a (USDOT Number—Operating Authority copy of their protest to the applicant Application), or Form BOC–3— (a) Motor carriers. Every motor carrier and to FMCSA. All protests must Designation of Agents—Motor Carriers, (of property or passengers, including a include statements made under oath Brokers and Freight Forwarders, during private carrier) shall make a designation (verified statements). There are no the application process or after having for each State in which it is authorized personal appearances or formal been granted provisional operating to operate and for each State traversed hearings. authority. The carrier must notify during such operations. Every motor carrier (including a private carrier) 11. Revise § 365.201 to read as FMCSA in writing within 20 days of the operating in the United States in the follows: change or correction. * * * * * course of transportation between points § 365.201 Definitions. in a foreign country shall file a A person wishing to oppose a request PART 366—DESIGNATION OF designation for each State traversed. for authority files a protest. A person PROCESS AGENT * * * * * (c) Freight forwarders. Every freight filing a valid protest is known as a 18. The authority citation for part 366 forwarder shall make a designation for protestant. is revised to read as follows: 12. Revise § 365.203 to read as each State in which its offices are follows: Authority: 49 U.S.C. 502, 503, 13303, located or in which contracts will be 13304 and 13908; and 49 CFR 1.73. written. § 365.203 Time for filing. 19. Revise § 366.1 to read as follows: 23. Revise § 366.5 to read as follows: A protest shall be filed (received at § 366.5 Blanket designations. the FMCSA, Office of the Associate § 366.1 Applicability. Administrator for Research and These rules, relating to the filing of Where an association or corporation Information Technology, 1200 New designations of persons upon whom has filed with the FMCSA a list of Jersey Ave., SE., Washington, DC 20590) court or Agency process may be served, process agents for each State, motor within 10 days after notice of the govern for-hire and private motor carriers (including private carriers), application appears in the FMCSA carriers, brokers, freight forwarders and, brokers and freight forwarders may Register. A copy of the protest shall be as of the moment of succession, their make the required designations by using sent to applicant’s representative at the fiduciaries (as defined at 49 CFR the following statement: same time. Failure to timely file a 387.319(a)). Those persons named in the list of protest waives further participation in 20. Revise § 366. 2 to read as follows: process agents on file with the Federal the proceeding. Motor Carrier Safety Administration by § 366.2 Form of designation. lllllllllllllllllll § 365.301 [Removed and reserved] (a) Designations shall be made on (name of association or corporation) 13. Remove and reserve § 365.301. Form BOC–3—Designation of Agents— and any subsequently filed revisions Motor Carriers, Brokers and Freight 14. Revise the heading of subpart D to thereof, for the States in which this Forwarders. Only one completed read as follows: carrier is or may be authorized to current form may be on file. It must operate (or arrange) as an entity of motor Subpart D—Changes to an Entity’s include all States for which agent vehicle transportation, including States Name or Business Form designations are required. One copy traversed during such operations, except must be retained by the carrier, broker those States for which individual §§ 365.401, 365.403, 365.405, 365.407, or freight forwarder at its principal designations are named. 365.409, and 365.411 [Removed and place of business. 24. Revise § 366.6 to read as follows: reserved] (b) Private motor carriers and for-hire 15. Remove and reserve §§ 365.401, motor carriers engaged in transportation § 366.6 Cancellation or change. 365.403, 365.405, 365.407, 365.409, and exempt from economic regulation by (a) A designation may be canceled or 365.411. FMCSA under 49 U.S.C. chapter 135 changed only by a new designation 16. Amend § 365.507 by revising the that are registered with FMCSA as of except that, where a motor carrier heading and paragraph (e)(2) to read as [insert effective date of the final rule] (including a private carrier), broker or follows must file a Form BOC–3 designation by freight forwarder ceases to be subject to

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§ 366.4 in whole or in part for 1 year, § 368.4 Requirement to notify FMCSA of CFR parts 365, 368 and 390. Title 49 designation is no longer required and change in applicant information. CFR parts 365 and 368 provide detailed may be canceled without making (a) You must notify FMCSA of any information about how a Mexico- another designation. changes or corrections to the domiciled motor carrier may obtain (b) A change to a designation, such as information in Section A of Form operating authority. name, address, or contact information, MCSA–1—FMCSA Registration/Update 31. Revise § 385.303 to read as must be reported to FMCSA within 20 (USDOT Number—Operating Authority follows: days of the change. Application), or the Form BOC–3, Designation of Agents-Motor Carriers, § 385.303 How does a motor carrier register with the FMCSA? PART 368—APPLICATION FOR A Brokers and Freight Forwarders, during CERTIFICATE OF REGISTRATION TO the application process or while you A motor carrier registers with FMCSA OPERATE IN MUNICIPALITIES IN THE have a Certificate of Registration. You by completing Form MCSA–1, which is UNITED STATES ON THE UNITED must notify FMCSA in writing within an electronic application that must be STATES-MEXICO INTERNATIONAL 20 days of the change or correction. completed on-line at the FMCSA Web BORDER OR WITHIN THE site at http://www.fmcsa.dot.gov * * * * * (Keyword ‘‘MCSA–1’’). Complete COMMERCIAL ZONES OF SUCH 28. Revise § 368.8 to read as follows: MUNICIPALITIES instructions for the Form MCSA–1 also § 368.8 Appeals. are available at the same location. 25. The authority citation for part 368 An applicant has the right to appeal 32. Revise § 385.305 to read as is revised to read as follows: denial of the application. The appeal follows: Authority: 49 U.S.C. 13301, 13902 and must be in writing and specify in detail § 385.305 What happens after the FMCSA 13908; Pub. L. 106–159, 113 Stat. 1748; and why the Agency’s decision to deny the receives a request for new entrant 49 CFR 1.73. application was wrong. The appeal must registration? 26. Amend § 368.3 by revising be filed with the FMCSA, Office of the (a) The applicant for new entrant paragraphs (a), (b), and (f), and Director of Information Technology registration will be directed to the removing and reserving paragraph (e), to within 20 days of the date of the letter FMCSA Internet Web site (http:// read as follows: denying the application. The decision of www.fmcsa.dot.gov) to secure and/or the Director will be the final Agency complete the application package § 368.3 Applying for a certificate of order. online. registration. (b) The application package will (a) If you wish to obtain a certificate PART 385—SAFETY FITNESS include the following: of registration under this part, you must PROCEDURES (1) Educational and technical electronically file an application that 29. The authority citation for part 385 assistance material regarding the includes the following: is revised to read as follows: requirements of the FMCSRs and HMRs, (1) Form MCSA–1—FMCSA if applicable. Authority: 49 U.S.C. 113, 504, 521(b), Registration/Update (USDOT Number— (2) Form MCSA–1—FMCSA 5105(e), 5109, 5113, 13901–13905, 13908, Registration/Update (USDOT Number— (Operating Authority Application). 31136, 31144, 31148, 31151, and 31502; Sec. (2) Form BOC–3—Designation of 350 of Pub. L. 107–87; and 49 CFR 1.73. Operating Authority Application). This Agents—Motor Carriers, Brokers and form is used to obtain both a USDOT 30. Revise § 385.301 to read as Number and operating authority. Freight Forwarders or indicate on the follows: application that the applicant will use a (c) Upon completion of the process agent service that will submit § 385.301 What is a motor carrier required application form, the new entrant will the Form BOC–3 electronically. to do before beginning interstate be issued an inactive USDOT Number. An applicant may not begin operations (b) The FMCSA will only process operations? nor mark a commercial motor vehicle your application for a Certificate of (a) Before a motor carrier of property with the USDOT Number until after the Registration if it meets the following or passengers begins interstate date of the Agency’s written notice that conditions: operations, it must register with FMCSA and receive a USDOT Number. In the USDOT Number has been activated. (1) The application must be Violations of this section may be subject completed in English; addition, for-hire motor carriers must obtain operating authority from FMCSA, to the penalties under § 392.9b(b) of this (2) The information supplied must be subchapter. accurate and complete in accordance unless providing transportation exempt from the Title 49 U.S.C. chapter 139 (d) For-hire motor carriers, unless with the instructions to Form MCSA–1 providing transportation exempt from and Form BOC–3. commercial registration requirements. Both the USDOT Number and operating the Title 49 U.S.C. chapter 139 (3) The application must include all authority are obtained by following commercial registration requirements, the required supporting documents and registration procedures described in 49 must obtain operating authority as applicable certifications set forth in the CFR part 390, subpart C. Title 49 CFR prescribed under § 390.105(b) and 49 instructions to Form MCSA–1 and Form part 365 provides detailed instructions CFR part 365 of this subchapter before BOC–3. for obtaining operating authority. operating in interstate commerce. 33. Amend § 385.329 by revising * * * * * (b) This subpart applies to motor paragraphs (b)(1), (c)(1) and (d) to read (e) [Reserved] carriers domiciled in the United States as follows: (f) Form MCSA–1 is an electronic and Canada. application and is available, including (c) The regulations in this subpart do § 385.329 May a new entrant that has had complete instructions, from the FMCSA not apply to a Mexico-domiciled motor its USDOT new entrant registration revoked Web site at http://www.fmcsa.dot.gov carrier. A Mexico-domiciled motor and its operations placed out of service (Keyword ‘‘MCSA–1’’). carrier of property or passengers must reapply? 27. Amend § 368.4 by revising register with FMCSA by following the * * * * * paragraph (a) to read as follows: registration procedures described in 49 (b) * * *

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(1) Submit an updated Form MCSA– 36. Revise § 385.419 to read as applicable certifications in accordance 1. follows: with the instructions to Form MCSA–1 * * * * * and Form BOC–3. § 385.419 How long is a safety permit (3) The application must include the (c) * * * effective? (1) Submit an updated Form MCSA– filing fee payable to the FMCSA in the Unless suspended or revoked, a safety 1. amount set forth at 49 CFR 360.3(f)(1). permit (other than a temporary safety (4) The application must be signed by * * * * * permit) is effective for two years, except the applicant. (d) If the new entrant is a for-hire that: (c) An applicant must electronically motor carrier subject to the registration (a) A safety permit will be subject to file Form MCSA–1. provisions of Title 49 U.S.C. chapter 139 revocation if a motor carrier fails to (d) Form MCSA–1 is an electronic and also has had its operating authority submit a renewal application (Form application and is available, including revoked, it must re-apply for operating MCSA–1) in accordance with the complete instructions, from the FMCSA authority as set forth in § 390.105(b) and schedule set forth for filing Form Web site at http://www.fmcsa.dot.gov 49 CFR part 365 of this chapter. MCSA–1 in part 390 subpart C of this (Keyword ‘‘MCSA–1’’). 34. Revise § 385.405 to read as subchapter; and 39. Amend § 385.607 by revising follows: (b) An existing safety permit will paragraph (e)(2) to read as follows: remain in effect pending FMCSA’s § 385.405 How does a motor carrier apply § 385.607 FMCSA action on the for a safety permit? processing of an application for renewal if a motor carrier submits the required application. (a) Application form. (1) To apply for application (Form MCSA–1) in * * * * * a new safety permit or renewal of the accordance with the schedule set forth (e) * * * safety permit, a motor carrier must in part 390 subpart C of this subchapter. (2) File or have its process agent(s) complete and submit Form MCSA–1— 37. Amend § 385.421 by revising electronically submit, Form BOC–3— FMCSA Registration/Update (USDOT paragraphs (a)(1) and (a)(2) to read as Designation of Agents—Motor Carriers, Number—Operating Authority follows: Brokers and Freight Forwarders, as Application) and meet the requirements required by part 366 of this subchapter. under 49 CFR part 390, subpart C. § 385.421 Under what circumstances will a * * * * * (2) The Form MCSA–1 also will also safety permit be subject to revocation or 40. Amend § 385.609 by revising suspension by FMCSA? satisfy the requirements for obtaining paragraph (a)(2) and removing and renewing a USDOT Number. (a) * * * paragraph (a)(3) to read as follows: (b) Where to get forms and (1) A motor carrier fails to submit a instructions. Form MCSA–1 is an renewal application (Form MCSA–1) in § 385.609 Requirement to notify FMCSA of electronic application and is available, accordance with the schedule set forth change in applicant information. including complete instructions, from in part 390 subpart C of this subchapter. (a) * * * the FMCSA Web site at http:// (2) A motor carrier provides any false (2) A motor carrier subject to this www.fmcsa.dot.gov (Keyword ‘‘MCSA– or misleading information on its subpart must notify FMCSA of any 1’’). application form (Form MCSA–1) or as changes or corrections to the (c) Signature and certification. An part of updated information it is information in Section A of Form official of the motor carrier must sign providing on Form MCSA–1 (see MCSA–1 that occur during the and certify that the information is § 385.405(d)). application process or after the motor correct on each form the motor carrier * * * * * carrier has been granted new entrant submits. 38. Revise § 385.603 to read as registration. The motor carrier must (d) Updating information. A motor follows: report the changes or corrections within carrier holding a safety permit must 20 days of the change. The motor carrier report to FMCSA any change in the § 385.603 Application. must use Form MCSA–1 to report the information on its Form MCSA–1 (a) Each applicant applying under this new information. within 20 days of the change. The motor subpart must submit an application that * * * * * carrier must use Form MCSA–1 to consists of: 41. Amend § 385.713 by revising report the new information. (1) Form MCSA–1, FMCSA paragraphs (b)(1), (c)(1), and (d) to read 35. Amend § 385.409 by revising Registration/Update (USDOT Number— as follows: paragraph (a) to read as follows: Operating Authority Application); and (2) A notification of the means used § 385.713 Reapplying for new entrant § 385.409 When may a temporary safety to designate process agents, either by registration. permit be issued to a motor carrier? submission in the application package * * * * * (a) Temporary safety permit. If a of Form BOC–3, Designation of (b) * * * motor carrier does not meet the criteria Agents—Motor Carriers, Brokers and (1) Submit an updated Form MCSA– of § 385.407(a), FMCSA may issue it a Freight Forwarders, or a letter stating 1, FMCSA Registration/Update (USDOT temporary safety permit. To obtain a that the applicant will use a process Number—Operating Authority temporary safety permit a motor carrier agent service that will submit the Form Application); must certify on Form MCSA–1 that it is BOC–3 electronically. * * * * * operating in full compliance with the (b) The FMCSA will process an (c) * * * HMRs, with the FMCSRs, and/or application only if it meets the (1) Submit an updated Form MCSA– comparable State regulations, whichever following conditions: 1, FMCSA Registration/Update (USDOT is applicable; and with the minimum (1) The application must be Number—Operating Authority financial responsibility requirements in completed in English. Application); part 387 of this subchapter or in State (2) The information supplied must be * * * * * regulations, whichever is applicable. accurate, complete, and include all (d) If the new entrant is a for-hire * * * * * required supporting documents and carrier subject to the registration

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provisions under 49 U.S.C. 13901 and (b) The requirements of this section responsibility for a motor vehicle used also has had its operating authority do not apply to motor carriers excepted to provide transportation services revoked, it must reapply for operating under § 387.7(b)(3). within a transit service area located in authority as set forth in § 390.105(b) and 44. Revise § 387.33 to read as follows: more than one State under an agreement 49 CFR part 365 of this subchapter. § 387.33 Financial responsibility, minimum with a Federal, State, or local government funded, in whole or in part, PART 387—MINIMUM LEVELS OF levels. (a) General limits. The minimum with a grant under 49 U.S.C. 5307, 5310 FINANCIAL RESPONSIBILITY FOR or 5311, including transportation MOTOR CARRIERS levels of financial responsibility referred to in § 387.31 of this subpart are hereby designed and carried out to meet the prescribed as follows: special needs of elderly individuals and 42. The authority citation for part 387 individuals with disabilities, will be the is revised to read as follows: Schedule of Limits highest level required for any of the Authority: 49 U.S.C. 13101, 13301, 13906, Public Liability States in which it operates. Transit 13908, 14701, 31138, and 31139; and 49 CFR service providers conducting such 1.73. For-hire motor carriers of passengers operations must register as for-hire operating in interstate or foreign passenger carriers under part 390, 43. Add § 387.19 to subpart A to read commerce. as follows: subpart C of this subchapter, identify the States in which they operate under Minimum § 387.19 Electronic filing of surety bonds, Vehicle seating capacity limits the applicable grants, and certify on trust fund agreements, certificates of their registration documents that they insurance and cancellations. (1) Any vehicle with a seating have in effect financial responsibility (a) Insurers of exempt motor carriers, capacity of 16 passengers or levels in an amount equal to or greater more, including the driver 1 ... $5,000,000 than the highest level required by any as defined in § 390.5 of this subchapter, (2) Any vehicle with a seating and private motor carriers that transport of the States in which they are operating capacity of 15 passengers or under a qualifying grant. hazardous materials in interstate less, including the driver 2 ..... 1,500,000 commerce must file certificates of 45. Amend § 387.39 by revising Form 12 insurance, surety bonds, and other Except as provided in § 387.27(b). MCS–90B to read as follows: securities and agreements with FMCSA (b) Limits applicable to transit service electronically in accordance with the providers. Notwithstanding the § 387.39 Forms. requirements and procedures set forth at provisions of paragraph (a) of this * * * * * § 387.323. section, the minimum level of financial BILLING CODE 4910–EX–P

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BILLING CODE 4910–EX–C

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* * * * * securities and agreements electronically § 387.303 Security for the protection of the 46. Add § 387.43 to read as follows: in accordance with the requirements public: Minimum limits. and procedures set forth at § 387.323. * * * * * § 387.43 Electronic filing of surety bonds, trust fund agreements, certificates of (b) This section does not apply to (b)(1) Motor carriers subject to insurance and cancellations. motor carriers excepted under § 387.303(a)(1) are required to have (a) Insurers of for-hire motor carriers § 387.31(b)(3). security for the required minimum of passengers must file certificates of 47. Amend § 387.303 by revising limits as follows: insurance, surety bonds, and other paragraph (b) to read as follows: (i) Small freight vehicles:

Minimum Kind of equipment Transportation provided limits

Fleet including only vehicles under 10,001 pounds (4,536 Property (non-hazardous) ...... $300,000 kilograms) GVWR.

(ii) Passenger carriers:

PASSENGER CARRIERS: KIND OF EQUIPMENT

Minimum Vehicle seating capacity limits

(A) Any vehicle with a seating capacity of 16 passengers or more (including the driver) ...... $5,000,000 (B) Any vehicle designed or used to transport 15 passengers or less (including the driver) for compensation ...... 1,500,000

(2) Motor carriers subject to security for the required minimum § 387.301(a)(2) are required to have limits as follows:

Minimum Kind of equipment Commodity transported limits

(i) Freight vehicles of 10,001 pounds (4,536 kilograms) or Property (non-hazardous) ...... $750,000 more GVWR. (ii) Freight vehicles of 10,001 pounds (4,536 kilograms) or Hazardous substances, as defined in § 171.8 of this title, 5,000,000 more GVWR. transported in cargo tanks, portable tanks, or hopper-type vehicles with capacities in excess of 3,500 water gallons, or in bulk explosives Division 1,1, 1.2 and 1.3 materials. Division 2.3, Hazard Zone A material; in bulk Division 2.1 or 2.2; or highway route controlled quantities of a Class 7 material, as defined in § 173.403 of this title. (iii) Freight vehicles of 10,001 pounds (4,536 kilograms) or Oil listed in § 172.101 of this title; hazardous waste, haz- 1,000,000 more GVWR. ardous materials and hazardous substances defined in § 171.8 of this title and listed in § 172.101 of this title, but not mentioned in (b) above or (d) below. (iv) Freight vehicles under 10,001 pounds (4,536 kilograms) Any quantity of Division 1.1, 1.2, or 1.3 material; any quantity 5,000,000 GVWR. of a Division 2.3, Hazard Zone A, or Division 6.1, Packing Group I, Hazard Zone A material; or highway route con- trolled quantities of Class 7 material as defined in § 173.455 of this title.

* * * * * notice has been submitted to http:// 49. Revise § 387.323 to read as 48. Amend § 387.313 by revising fmcsa.dot.gov on the prescribed form follows: paragraphs (b) and (d) to read as (Form BMC–35, Notice of Cancellation follows: Motor Carrier Policies of Insurance § 387.323 Electronic filing of surety bonds, trust fund agreements, certificates of § 387.313 Forms and procedures. under 49 U.S.C. 13906, and BMC–36, insurance and cancellations. Notice of Cancellation Motor Carrier * * * * * (a) Insurers must electronically file (b) Filing and copies. Certificates of and Broker Surety Bonds, as forms BMC 34, BMC 35, BMC 36, BMC insurance, surety bonds, and notices of appropriate) by the insurance company, cancellation must be filed with the surety or sureties, motor carrier, broker 82, BMC 83, BMC 84, BMC 85, BMC 91, FMCSA. or other party thereto, as the case may and BMC 91X in accordance with the requirements and procedures set forth * * * * * be, which period of thirty (30) days (d) Cancellation notice. Except as shall commence to run from the date in paragraphs (b) through (d) of this provided in paragraph (e) of this such notice on the prescribed form is section. section, surety bonds, certificates of filed with FMCSA at http://fmcsa.dot. (b) Each insurer must obtain insurance and other securities or gov. authorization to file electronically by agreements shall not be cancelled or * * * * * registering with the FMCSA. An withdrawn until 30 days after written individual account number and

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password for computer access will be Authority: 49 U.S.C. 508, 13301, 13902, transport between 9 and 15 passengers issued to each registered insurer. 13908, 31132, 31133, 31136, 31502, 31504; (including the driver), not for direct (c) Filings must be transmitted online sec. 114, Pub. L. 103–311, 108 Stat. 1673, compensation, provided the vehicle via the Internet at http://fmcsa.dot.gov. 1677; secs. 217, 229; Pub. L. 106–159, 113 does not otherwise meet the definition Stat. 1748, 1767, 1773; and 49 CFR 1.73. (d) All registered insurers agree to of a commercial motor vehicle, except furnish upon request to the FMCSA a 54. Revise § 390.3 to read as follows: that motor carriers operating such copy of any policy (or policies) and all § 390.3 General applicability. vehicles are required to comply with certificates of insurance, endorsements, §§ 390.15, 390.21(a) and (b)(2), 390.101 surety bonds, trust fund agreements, (a) The rules in subchapter B of this chapter are applicable to all employers, and 390.103. proof of qualification to self-insure or (7) Either a driver of a commercial other insurance filings. employees, and commercial motor vehicles, which transport property or motor vehicle used primarily in the 50. Revise § 387.403 to read as transportation of propane winter heating follows: passengers in interstate commerce. (b) The rules in part 383, Commercial fuel or a driver of a motor vehicle used § 387.403 General requirements. Driver’s License Standards; to respond to a pipeline emergency, if such regulations would prevent the (a) Cargo. A household goods freight Requirements and Penalties, are driver from responding to an emergency forwarder may not operate until it has applicable to every person who operates condition requiring immediate response filed with FMCSA an appropriate surety a commercial motor vehicle, as defined as defined in § 390.5. bond, certificate of insurance, in § 383.5 of this subchapter, in (g) Motor carriers that transport qualifications as a self-insurer, or other interstate or intrastate commerce and to hazardous materials in intrastate securities or agreements, in the amounts all employers of such persons. commerce. The rules in the following prescribed at § 387.405, for loss of or (c) The rules in part 387, Minimum provisions of subchapter B of this damage to household goods. Levels of Financial Responsibility for (b) Public liability. A freight forwarder Motor Carriers, are applicable to motor chapter apply to motor carriers that may not perform transfer, collection, carriers as provided in § 387.3 or transport hazardous materials in and delivery service until it has filed § 387.27 of this subchapter. intrastate commerce and to the motor with the FMCSA an appropriate surety (d) Additional requirements. Nothing vehicles that transport hazardous bond, certificate of insurance, in subchapter B of this chapter shall be materials in intrastate commerce: qualifications as a self-insurer, or other construed to prohibit an employer from (1) Part 385, subparts A and E, for securities or agreements, in the amounts requiring and enforcing more stringent carriers subject to the requirements of prescribed at § 387.405, conditioned to requirements relating to safety of § 385.403 of this subchapter. pay any final judgment recovered operation and employee safety and (2) Part 386, Rules of Practice for against such freight forwarder for bodily health. Motor Carrier, Intermodal Equipment (e) Knowledge of and compliance with injury to or the death of any person, or Provider, Broker, Freight Forwarder, the regulations. (1) Every employer shall loss of or damage to property (except and Hazardous Materials Proceedings, be knowledgeable of and comply with cargo) of others, or, in the case of freight of this subchapter. all regulations contained in this vehicles described at 49 CFR (3) Part 387, Minimum Levels of subchapter which are applicable to that 387.303(b)(2), for environmental Financial Responsibility for Motor motor carrier’s operations. Carriers, to the extent provided in restoration, resulting from the negligent (2) Every driver and employee shall operation, maintenance, or use of motor § 387.3 of this subchapter. be instructed regarding, and shall (4) Subpart C of this part, Unified vehicles operated by or under its control comply with, all applicable regulations in performing such service. Registration System, and § 390.21, contained in this subchapter. Marking of CMVs, for carriers subject to 51. Amend § 387.413 by revising (3) All motor vehicle equipment and paragraph (b) to read as follows: the requirements of § 385.403 of this accessories required by this subchapter subchapter. Intrastate motor carriers § 387.413 Forms and procedures. shall be maintained in compliance with operating prior to January 1, 2005, are * * * * * all applicable performance and design excepted from § 390.101. (b) Procedure. Certificates of criteria set forth in this subchapter. (h) Intermodal equipment providers. (f) Exceptions. Unless otherwise insurance, surety bonds, and notices of The rules in the following provisions of specifically provided, the rules in this cancellation must be electronically filed subchapter B of this chapter apply to subchapter do not apply to— with the FMCSA. intermodal equipment providers: (1) All school bus operations as (1) Subpart F, Intermodal Equipment * * * * * defined in § 390.5; 52. Revise § 387.419 to read as (2) Transportation performed by the Providers, of Part 385, Safety Fitness follows: Federal government, a State, or any Procedures. political subdivision of a State, or an (2) Part 386, Rules of Practice for § 387.419 Electronic filing of surety bonds, Motor Carrier, Intermodal Equipment certificates of insurance and cancellations. agency established under a compact between States that has been approved Provider, Broker, Freight Forwarder, Insurers must electronically file and Hazardous Materials Proceedings. certificates of insurance, surety bonds, by the Congress of the United States; (3) The occasional transportation of (3) Part 390, Federal Motor Carrier and other securities and agreements and Safety Regulations; General, except notice of cancellation in accordance personal property by individuals not for compensation and not in the § 390.15(b) concerning accident with the requirements and procedures registers. set forth at § 387.323. furtherance of a commercial enterprise; (4) The transportation of human (4) Part 393, Parts and Accessories Necessary for Safe Operation. PART 390—FEDERAL MOTOR corpses or sick and injured persons; (5) Part 396, Inspection, Repair, and CARRIER SAFETY REGULATIONS; (5) The operation of fire trucks and Maintenance. GENERAL rescue vehicles while involved in emergency and related operations; (i) Brokers. The rules in the following 53. The authority citation for part 390 (6) The operation of commercial provisions of subchapter B of this is revised to read as follows: motor vehicles designed or used to chapter apply to brokers that are

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required to register with the Agency paragraph (a) of this section at the property or passengers in interstate pursuant to 49 U.S.C. chapter 139. following times: commerce between Mexico and points (1) Part 386, Rules of Practice for (1) Before it begins operations; and in the United States beyond the Motor Carrier, Intermodal Equipment (2) Every 24 months, according to the municipalities and commercial zones Provider, Broker, Freight Forwarder, following schedule: along the United States-Mexico and Hazardous Materials Proceedings. international border must pass the pre- (2) Part 387, Minimum Levels of USDOT No. ending Must file by last authorization safety audit under Financial Responsibility for Motor in . . . day of . . . § 365.507 of this subchapter. The Carriers, to the extent provided in 1 ...... January. Agency will not issue a USDOT Number subpart C. 2 ...... February. until expiration of the protest period (3) Subpart C of this part, Unified 3 ...... March. provided in § 365.115 of this subchapter Registration System 4 ...... April. or—if a protest is received—after (j) Freight forwarders. The rules in the 5 ...... May. FMCSA denies or rejects the protest. following provisions of subchapter B of 6 ...... June. (3) The motor carrier must display the this chapter apply to freight forwarders 7 ...... July. number on each self-propelled CMV, as that are required to register with the 8 ...... August. defined in § 390.5, along with the Agency pursuant to 49 U.S.C. chapter 9 ...... September. additional information required by 139. 0 ...... October. § 390.21. (1) Part 386, Rules of Practice for 57a. Redesignate subpart C, consisting (3) If the next-to-last digit of its Motor Carrier, Intermodal Equipment of §§ 390.40, 390.42, 390.44, and 390.46, USDOT Number is odd, the motor Provider, Broker, Freight Forwarder, as subpart D, consisting of §§ 390.201, carrier shall file its update in every odd- and Hazardous Materials Proceedings. 390.203, 390.205, and 390.207. (2) Part 387, Minimum Levels of numbered calendar year. If the next-to- 57b. Add a new subpart C to read as Financial Responsibility for Motor last digit of the USDOT Number is even, follows: the motor carrier shall file its update in Carriers, to the extent provided in Subpart C—Unified Registration System subpart D of this part. every even-numbered calendar year. (c) Availability of forms. The Form Sec. (3) Subchapter C of this part, Unified 390.101 USDOT Registration. Registration System. MCS–150 and complete instructions are available from the FMCSA Web site at 390.102 PRISM State registration/biennial (k) Cargo tank facilities. The rules in updates. Subpart C of this part, Unified http://www.fmcsa.dot.gov (Keyword 390.103 Special requirements for Registration System, apply to each cargo ‘‘MCS–150’’); from all FMCSA Service registration. tank and cargo tank motor vehicle Centers and Division offices nationwide; 390.105 Other governing regulations. manufacturer, assembler, repairer, or by calling 1–800–832–5660. 390.107 Pre-authorization safety audit. inspector, tester, and design certifying (d) Where to file. The Form MCS–150 must be filed with FMCSA Office of Subpart C—Unified Registration engineer that is subject to registration System requirements under 49 CFR 107.502 and Information Management. The form may 49 U.S.C. 5108. be filed electronically according to the § 390.101 USDOT Registration. 55. Amend § 390.5 by revising the instructions at the Agency’s Web site, or (a) Purpose. This section establishes definition of ‘‘Exempt motor carrier’’ to it may be sent to Federal Motor Carrier who must register with FMCSA under read as follows: Safety Administration, Office of the Unified Registration System, the Information Management, MC–RIO, filing schedule, and general information § 390.5 Definitions. 1200 New Jersey Avenue, SE., pertaining to persons subject to the * * * * * Washington, DC 20590. Unified Registration System registration Exempt motor carrier means a person (e) Special instructions. A motor requirements. engaged in transportation exempt from carrier should submit the Form MCS– (b) Applicability. (1) Except as economic regulation by the Federal 150 along with its application for provided in paragraph (g) of this Motor Carrier Safety Administration operating authority (OP–1(MX)), to the section, each motor carrier (including a (FMCSA) under 49 U.S.C. chapter 135. appropriate address referenced on that private motor carrier, an exempt for-hire ‘‘Exempt motor carriers’’ are subject to form, or may submit it electronically or motor carrier, a non-exempt for-hire the safety regulations set forth in this by mail separately to the address motor carrier, and a motor carrier of subchapter. mentioned in paragraph (d) of this passengers that participates in a through * * * * * section. ticketing arrangement with one or more 56. Revise § 390.19 to read follows. (f) Only the legal name or a single interstate for-hire motor carriers of trade name of the motor carrier may be passengers), intermodal equipment § 390.19 Motor carrier identification used on the Form MCS–150. provider, broker and freight forwarder reports for certain Mexico-domiciled motor (g) A motor carrier that fails to file the subject to the requirements of 49 CFR carriers. Form MCS–150 or furnishes misleading chapter III, subchapter B must file Form (a) Applicability. A Mexico-domiciled information or makes false statements MCSA–1 with FMCSA in order to: motor carrier requesting authority to upon the form, is subject to the (i) Identify its operations with the provide transportation of property or penalties prescribed in 49 U.S.C. Federal Motor Carrier Safety passengers in interstate commerce 521(b)(2)(B). Administration for safety oversight, as between Mexico and points in the (h)(1) Upon receipt and processing of authorized under 49 U.S.C. 31144, as United States beyond the municipalities the form described in paragraph (a) of applicable; and commercial zones along the United this section, FMCSA will issue the (ii) Obtain operating authority Sates-Mexico international border must motor carrier or intermodal equipment required under Title 49 U.S.C. chapter file Form MCS–150 with FMCSA as provider an identification number 139, as applicable; and follows: (USDOT Number). (iii) Obtain a hazardous materials (b) Filing schedule. Each motor carrier (2) A Mexico-domiciled motor carrier safety permit as required under 49 must file the appropriate form under seeking to provide transportation of U.S.C. 5109, as applicable.

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(2) A cargo tank and cargo tank motor USDOT No. ending Must file by last biennial update information with the vehicle manufacturer, assembler, in . . . day of . . . State Driver Licensing Agency (SDLA) repairer, inspector, tester, and design according to its policies and procedures, certifying engineer that is subject to 7 ...... July. provided the SDLA has integrated the registration requirements under 49 CFR 8 ...... August. USDOT registration/update capability 9 ...... September. 107.502 and 49 U.S.C. 5108 must satisfy 0 ...... October. into its vehicle registration program. those requirements by electronically (b) If the SDLA procedures do not filing Form MCSA–1 with FMCSA. allow a motor carrier to file the Form (c) General. (1)(i) A person that fails If the next-to-last digit of its USDOT MCSA–1 or to submit updates within to file Form MCSA–1 pursuant to Number is odd, the person must file its the periods specified in § 390.101(a)(2), paragraph (d)(1) of this section is subject update in every odd-numbered calendar a motor carrier must complete such to the penalties prescribed in 49 U.S.C. year. If the next-to-last digit of the filings directly with FMCSA. 521(b)(2)(B) or 49 U.S.C. 14901(a), as USDOT Number is even, the person (c) A for-hire motor carrier, unless appropriate. must file its update in every even- providing transportation exempt from (ii) A person that fails to complete numbered calendar year. Title 49 U.S.C. chapter 139 commercial biennial updates to the information on (4) Persons assigned a USDOT registration requirements, must obtain Form MCSA–1 pursuant to paragraph Number on or after [Insert final rule operating authority as prescribed under (d)(2) of this section is subject to the compliance date] must file an updated § 390.105(b) and 49 CFR part 365 of this penalties prescribed in 49 U.S.C. Form MCSA–1 every 24 months, chapter before operating in interstate 521(b)(2)(B) or 49 U.S.C. 14901(a), as according to the date of Agency’s commerce. appropriate, and inactivation of its written notice that the USDOT Number USDOT Number. has been activated pursuant to § 390.103 Special requirements for (iii) A person that furnishes § 390.101(c)(2). registration. misleading information or makes false (5) When there is a change in legal (a)(1) General. A person applying to statements upon Form MCSA–1 is name, form of business, or address. A operate as a motor carrier, broker or subject to the penalties prescribed in 49 registered entity must notify the Agency freight forwarder under this subpart U.S.C. 521(b)(2)(B), 49 U.S.C. 14901(a) of a change in legal name, form of must make the additional filings or 49 U.S.C. 14907, as appropriate. business, or address within 20 days of described in paragraphs (a)(2) and (a)(3) (2) Upon receipt and processing of the change by filing an updated Form of this section as a condition for Form MCSA–1, FMCSA will issue the MCSA–1 reflecting the revised registration under this subpart within applicant an inactive identification information. 90 days of the date on which the number (USDOT Number). FMCSA will (e) Availability of form. Form MCSA– application is filed: activate the USDOT Number after 1 is an electronic application and is (2) Evidence of financial completion of applicable administrative available, including complete responsibility. (i) A person that registers filings pursuant to § 390.103(a) of this instructions, from the FMCSA Web site to conduct operations in interstate chapter, unless the applicant is subject at http://www.fmcsa.dot.gov (Keyword commerce as a for-hire motor carrier, a to § 390.103(b). An applicant may not ‘‘MCSA–1’’). broker or a freight forwarder must file begin operations nor mark a commercial (f) Where to file. Persons subject to the evidence of financial responsibility as motor vehicle with the USDOT Number registration requirements under this required under part 387, subparts C and until after the date of the Agency’s subpart must electronically file Form D of this subchapter. written notice that the USDOT Number MCSA–1 on the FMCSA Web site at (ii) A person that registers to transport has been activated. http://www.fmcsa.dot.gov. hazardous materials as defined in (3) The motor carrier must display a (g) Exception. The rules in this § 383.5 of this subchapter in interstate valid USDOT Number on each self- subpart do not govern the application by commerce must file evidence of propelled CMV, as defined in § 390.5, a Mexico-domiciled motor carrier to financial responsibility as required along with the additional information provide transportation of property or under part 387, subpart C of this required by § 390.21. passengers in interstate commerce subchapter. (d) Filing schedule. Each person listed between Mexico and points in the (3) Designation of agent for service of under paragraph (b) of this section must United States beyond the municipalities process. All motor carriers (both private electronically file Form MCSA–1 at the and commercial zones along the United and for-hire), brokers and freight following times: States-Mexico international border. The forwarders required to register under (1) Before it begins operations; and applicable procedures governing this subpart must designate an agent for (2) Every 24 months as prescribed in transportation by Mexico-domiciled service of process (a person upon whom paragraph (d)(3) or (d)(4) of this section, motor carriers are provided in § 390.19 court or Agency process may be served) as applicable. of this subchapter. following the rules in part 366 of this (3) Persons assigned a USDOT subchapter: Number prior to [Insert final rule § 390.102 PRISM State registration/ (b) The Agency will not activate a biennial updates. compliance date] must file an updated USDOT Number until expiration of the Form MCSA–1 every 24 months, (a) A motor carrier that registers its protest period provided in § 365.115 of according to the following schedule: vehicles in a State that participates in this subchapter or—if a protest is the Performance and Registration received—after FMCSA denies or rejects USDOT No. ending Must file by last Information Systems Management the protest, as applicable. in . . . day of . . . (PRISM) program (authorized under section 4004 of the Transportation § 390.105 Other governing regulations. 1 ...... January. 2 ...... February. Equity Act for the 21st Century [Pub. L. (a) Motor carriers. (1) A motor carrier 3 ...... March. 105–178, 112 Stat. 107]) alternatively granted registration under this part must 4 ...... April. may satisfy the requirements set forth in successfully complete the applicable 5 ...... May. § 390.101 by electronically filing all the New Entrant Safety Assurance Program 6 ...... June. required USDOT registration and as described in paragraphs (a)(1)(i)

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through (a)(1)(iv) of this section as a intermodal equipment provider may be (a) Identify its operations to the condition for permanent registration: used on the Form MCSA–1. FMCSA by filing the Form MCSA–1 (i) A U.S.- or Canada-domiciled motor (2) The intermodal equipment required by § 390.101. carrier is subject to the new entrant provider must identify each unit of * * * * * safety assurance program under 49 CFR interchanged intermodal equipment by part 385, subpart D. its assigned USDOT Number. PART 392—DRIVING OF COMMERCIAL (ii) A Mexico-domiciled motor carrier (d) Hazardous materials safety permit MOTOR VEHICLES is subject to the safety monitoring applicants. A person who applies for a program under 49 CFR part 385, subpart hazardous materials safety permit is 59. The authority citation for part 392 B. subject to the requirements of part 385, is revised to read as follows: (iv) A Non-North America-domiciled subpart E of this subchapter. motor carrier is subject to the safety Authority: 49 U.S.C. 521, 13902, 13908, (e) Cargo tank facilities. A cargo tank 31136, 31502; and 49 CFR 1.73. monitoring program under 49 CFR part facility is subject to the requirements of 385, subpart I. 49 CFR part 107, subpart F, 49 CFR part 60. Add § 392.9b to read as follows: (2) [Reserved] 172, subpart H, and 49 CFR part 180. (b) Brokers, freight forwarders and § 392.9b USDOT Registration. non-exempt for-hire motor carriers. (1) § 390.107 Pre-authorization safety audit. (a) USDOT Registration required. A A broker or freight forwarder must A non-North America-domiciled obtain operating authority pursuant to motor vehicle providing transportation motor carrier seeking to provide must not be operated without a USDOT part 365 of this subchapter as a transportation of property or passengers condition for obtaining USDOT Registration and an active USDOT in interstate commerce within the Number. Registration. United States must pass the pre- (2) A motor carrier registering to authorization safety audit under (b) Penalties. If it is determined that engage in transportation that is not § 385.607(c) of this subchapter as a the motor carrier responsible for the exempt from economic regulation by condition for receiving registration operation of such a vehicle is operating FMCSA must obtain operating authority under this part. in violation of paragraph (a) of this pursuant to part 365 of this subchapter 58. Amend newly redesignated section, it may be subject to penalties in as a condition for obtaining USDOT § 390.201 by revising paragraph (a) to accordance with 49 U.S.C. 521 and Registration. read as follows: inactivation of its USDOT Number. (c) Intermodal equipment providers. Issued on: October 11, 2011. An intermodal equipment provider is § 390.201 What responsibilities do subject to the requirements of subpart D intermodal equipment providers have under Anne S. Ferro, of this part. the Federal Motor Carrier Safety Administrator. (1) Only the legal name or a single Regulations (49 CFR parts 350–399)? [FR Doc. 2011–26958 Filed 10–25–11; 8:45 am] trade name of the motor carrier or * * * * * BILLING CODE 4910–EX–P

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Part V

The President

Notice of October 25, 2011—Continuation of the National Emergency With Respect to the Situation in or in Relation to the Democratic Republic of the Congo

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Federal Register Presidential Documents Vol. 76, No. 207

Wednesday, October 26, 2011

Title 3— Notice of October 25, 2011

The President Continuation of the National Emergency With Respect to the Situation in or in Relation to the Democratic Republic of the Congo

On October 27, 2006, by Executive Order 13413, the President declared a national emergency with respect to the situation in or in relation to the Democratic Republic of the Congo and, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706), ordered related measures blocking the property of certain persons contributing to the conflict in that country. The President took this action to deal with the unusual and extraordinary threat to the foreign policy of the United States constituted by the situation in or in relation to the Democratic Republic of the Congo, which has been marked by widespread violence and atrocities that continue to threaten regional stability. Because this situation continues to pose an unusual and extraordinary threat to the foreign policy of the United States, the national emergency declared on October 27, 2006, and the measures adopted on that date to deal with that emergency, must continue in effect beyond October 27, 2011. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13413. This notice shall be published in the Federal Register and transmitted to the Congress.

THE WHITE HOUSE, October 25, 2011. [FR Doc. 2011–27922 Filed 10–25–11; 12:00 pm] Billing code 3295–F2–P

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Reader Aids Federal Register Vol. 76, No. 207 Wednesday, October 26, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

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. Presidential Documents 3 CFR 930...... 65357 Executive orders and proclamations 741–6000 953...... 65360 Proclamations: The United States Government Manual 741–6000 985...... 61933 8723...... 62283 Ch. XXV...... 66169 Other Services 8724...... 62285 Proposed Rules: Electronic and on-line services (voice) 741–6020 8725...... 62287 319 ...... 65976, 65985, 65988 Privacy Act Compilation 741–6064 8726...... 62289 331...... 61228, 62312 Public Laws Update Service (numbers, dates, etc.) 741–6043 8727...... 62291 810...... 61287 TTY for the deaf-and-hard-of-hearing 741–6086 8728...... 62293 999...... 65411 8729...... 62295 1435...... 64839 ELECTRONIC RESEARCH 8730...... 63529 1700...... 63846 8731...... 63531 World Wide Web 8732...... 63803 8 CFR Full text of the daily Federal Register, CFR and other publications 8733...... 63805 Proposed Rules: is located at: www.fdsys.gov. 8734...... 63807 100...... 61622 Federal Register information and research tools, including Public 8735...... 63809 216...... 61288 Inspection List, indexes, and links to GPO Access are located at: 8736...... 63999 245...... 61288 www.ofr.gov. 8737...... 65095 E-mail 8738...... 65097 9 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8739...... 65099 56...... 65935 an open e-mail service that provides subscribers with a digital Executive Orders: 77...... 61251, 61253 form of the Federal Register Table of Contents. The digital form 13585...... 62281 78...... 65935 of the Federal Register Table of Contents includes HTML and 13586...... 63533 PDF links to the full text of each document. 13587...... 63811 Proposed Rules: 71...... 62313, 63210 To join or leave, go to http://listserv.access.gpo.gov and select Administrative Orders: 77...... 62313, 63210 Online mailing list archives, FEDREGTOC-L, Join or leave the list Memorandums: 78...... 62313, 63210 (or change settings); then follow the instructions. Memorandum of 90...... 62313, 63210 PENS (Public Law Electronic Notification Service) is an e-mail September 28, 121...... 61228, 62312 service that notifies subscribers of recently enacted laws. 2011 ...... 61247 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Presidential 10 CFR and select Join or leave the list (or change settings); then follow Determination No. 50...... 63541 the instructions. 2011–17 of 52...... 63541 FEDREGTOC-L and PENS are mailing lists only. We cannot September 30, 429...... 65362 respond to specific inquiries. 2011 ...... 62597 431...... 65362 Reference questions. Send questions and comments about the Presidential 1021...... 63764 Federal Register system to: [email protected] Determination No. The Federal Register staff cannot interpret specific documents or 2011–18 of Proposed Rules: 26...... 61625 regulations. September 30, 50...... 63565 Reminders. Effective January 1, 2009, the Reminders, including 2011 ...... 62599 430 ...... 61999, 62644, 63211, Rules Going Into Effect and Comments Due Next Week, no longer Presidential 65616, 65631, 65633 appear in the Reader Aids section of the Federal Register. This Determination No. 431...... 61288, 63566 information can be found online at http://www.regulations.gov. 2012–01 of October 810...... 65634 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 4, 2011 ...... 65927 longer appears in the Federal Register. This information can be Notices: 11 CFR found online at http://bookstore.gpo.gov/. Notice of October 19, 2011 ...... 65355 104...... 61254 109...... 61254 FEDERAL REGISTER PAGES AND DATE, OCTOBER Notice of October 25, 2011 ...... 66599 Proposed Rules: 61033–61248...... 3 65927–66168...... 25 110...... 63567 61249–61554...... 4 66169–66600...... 26 5 CFR 111...... 63570 61555–61932...... 5 1201...... 63537 12 CFR 61933–62280...... 6 Proposed Rules: 62281–62596...... 7 Ch. XXXVI ...... 63206 309...... 63817 62597–63148...... 11 310...... 63817 63149–63536...... 12 6 CFR Proposed Rules: 63537–63816...... 13 Proposed Rules: 204...... 64250 63817–64000...... 14 31...... 62311 210...... 64259 64001–64228...... 17 1310...... 64264 64229–64780...... 18 7 CFR 64781–65094...... 19 6...... 63538 13 CFR 65095–65356...... 20 52...... 64001 108...... 63542 65357–65608...... 21 319...... 63149, 65933 120...... 63151, 63542 65609–65926...... 24 906...... 61249 123...... 63542

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125...... 63542 24...... 65365 Ch. V...... 64432 80...... 65382 Proposed Rules: 162...... 65365, 65953 Proposed Rules: 81...... 64825 121 ...... 61626, 62313, 63216, 163...... 65365, 65953 75...... 63238 82...... 61269 63510 178...... 65365 915...... 64043 93...... 63554 124...... 62313 201...... 61937 926...... 64045, 64047 112...... 64245 125...... 61626, 62313 206...... 61937 938...... 64048 180 ...... 61587, 61592, 66187 126...... 62313 207...... 61937 271...... 62303 127...... 62313 210...... 61937, 64803 31 CFR 372...... 64022 351...... 61042 1...... 62297 721...... 61566 14 CFR Proposed Rules: 31...... 61046 799...... 65385 21...... 64229 Ch. II ...... 66004 538...... 63191, 63197 Proposed Rules: 23...... 65101 560...... 63191, 63197 2...... 64055 25 ...... 62603, 63818, 63822, 20 CFR 1060...... 62607 9...... 65431 63823, 65103, 65105 404...... 65107, 65366 Proposed Rules: 51...... 64059 39 ...... 61033, 61036, 61255, 408...... 65107 1010...... 64049 52 ...... 61062, 61069, 61291, 61555, 61558, 61559, 61561, 416...... 65107, 65366 62002, 62004, 63251, 63574, 62605, 63156, 63159, 63161, 422...... 65107 32 CFR 63859, 63860, 64065, 64186, 63163, 63167, 63169, 63172, Proposed Rules: 211...... 65112 64880, 64881, 65458, 66013 63177, 64001, 64003, 64781, 404...... 66006 1902...... 62630 60 ...... 63878, 65138, 65653 64785, 64788, 64791, 64793 1909...... 64237 63...... 65138 64795, 64798, 64801, 65936, 21 CFR 81...... 65458 65938, 65941 Ch. I ...... 61565 33 CFR 82...... 65139 61...... 63183 165...... 64810 100...... 62298, 63837 93...... 63575 71 ...... 61257, 61258, 64233, 558...... 65109 117 ...... 63839, 63840, 64009, 97...... 63251, 63860 64234, 64235, 64236, 65106, 1300...... 64813 65118, 65120, 65375, 66183, 98...... 61293 65944, 65945, 66178 1301...... 61563 66184 112...... 64296 73...... 64003 1304...... 64813 165 ...... 61259, 61261, 61263, 122...... 65431 97 ...... 61038, 61040, 64005, 1306...... 64813 61947, 61950, 62301, 63199, 174...... 61647 64006, 65951, 66179 1308...... 65371 63200, 63202, 63547, 63841, 180...... 61647 Proposed Rules: 1309...... 61563 64818, 64820, 65376, 65378, 257...... 63252 21...... 61999 1311...... 64813 65380, 65609, 65963 261...... 63252 25...... 63851 Proposed Rules: 334...... 62631 264...... 63252 39 ...... 61633, 61638, 61641, 201...... 66235 Proposed Rules: 265...... 63252 61643, 61645, 62321, 62649, 316...... 64868 100...... 63239 268...... 63252 62653, 62656, 62658, 62661, 610...... 66235 117...... 63858 271...... 63252 62663, 62667, 62669, 62671, 870...... 64224 165...... 66239 302...... 63252 62673, 63229, 63571, 64038, 1308...... 65424 334...... 62692 721...... 65580 64283, 64285, 64287, 64289, 799...... 65580 64291, 64293, 64844, 64847, 25 CFR 34 CFR 41 CFR 64849, 64851, 64854, 64857, Proposed Rules: Proposed Rules: 65136, 65419, 65421, 65991, 514...... 62684 Ch. VI...... 66248 301–11...... 63844 65995, 65997, 66198, 66200, 523...... 63236 66203, 66205, 66207, 66209 571...... 63237 36 CFR 42 CFR 43...... 64859 7...... 61266 110...... 62306 71 ...... 63235, 64041, 64295 26 CFR 230...... 65121 416...... 65886 1 ...... 61946, 64816, 65110 1258...... 62632 Proposed Rules: 15 CFR 301...... 62607, 66181 Proposed Rules: 5...... 61294 744...... 63184 602...... 61946, 61947 212...... 62694 71...... 63891 774...... 66181 Proposed Rules: 214...... 62694 Ch. IV...... 65909 922...... 63824 1 ...... 62327, 62684, 63574, 215...... 62694 73...... 61206 Proposed Rules: 64879, 65138, 65634, 66011, 218...... 62694 417...... 63018 922...... 65566 66012, 66239 222...... 62694 422...... 63018 228...... 62694 423...... 63018 16 CFR 27 CFR 241...... 62694 482...... 65891 2...... 63833 Proposed Rules: 251...... 62694 483...... 63018 1450...... 62605 9...... 63852 254...... 62694 485...... 65891 Proposed Rules: 292...... 62694 Ch. II...... 62678, 64865 28 CFR 44 CFR 1700...... 64042 104...... 65112 38 CFR 64...... 61954 Proposed Rules: 1...... 65133 67...... 61279 17 CFR 524...... 65428 Proposed Rules: 12...... 63187 39 CFR 67 ...... 61070, 61295, 61649, Proposed Rules: 29 CFR 122...... 61052 62006, 62329 Ch. 1 ...... 65999 104...... 63188 241...... 66184 206...... 61070 229...... 63573 404...... 66442 Proposed Rules: 240...... 65784 500–899...... 64237 20...... 65639 46 CFR 249...... 63573, 65784 1952...... 63188, 63190 111...... 62000, 65640 108...... 62962 2550...... 66136 117...... 62962 18 CFR 4022...... 63836 40 CFR 133...... 62962 Proposed Rules: Proposed Rules: 2...... 64010 160...... 62962 35...... 66211 570...... 61289 9...... 61566 164...... 62962 40...... 66220, 66229 579...... 61289 52 ...... 61054, 61057, 62635, 180...... 62962 62640, 63549, 64015, 64017, 199...... 62962 19 CFR 30 CFR 64020, 64237, 64240, 64823, Proposed Rules: 10...... 65365 Ch. II ...... 64432 64825 160...... 62714

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530...... 63581 73...... 62330, 66250 541...... 65610 622 ...... 61284, 61285, 62309, 531...... 63581 Proposed Rules: 63563, 64248 48 CFR 236...... 63849 648 ...... 61059, 61060, 61061, 47 CFR 212...... 61279 360...... 66506 61995, 62642, 65971, 66192 Ch. I ...... 62309 247...... 61279 365...... 66506 679 ...... 61996, 63204, 63564, 1...... 65965 252...... 61279, 61282 366...... 66506 65972, 65973, 65975, 66195, 20...... 63561 Proposed Rules: 368...... 66506 66196 32...... 61279 24...... 63896 385...... 66506 Proposed Rules: 52...... 61279 52...... 63896 387...... 66506 17 ...... 61298, 61307, 61321, 61...... 61279, 61956 211...... 64885 390...... 66506 61330, 61482, 61532, 61782, 64 ...... 61279, 61956, 63561, 215...... 61296, 64297 392...... 66506 61826, 61856, 61896, 62016, 65965 225...... 61296, 64297 580...... 65485 62165, 62213, 62259, 62504, 69...... 61279 252 ...... 61296, 64297, 64885 Ch. X...... 63276 62740, 62900, 62928, 63094, 73...... 62642 9903...... 61660 1241...... 63582 63360, 63420, 63444, 63480, 101...... 65970 63720, 64996, 66018, 66250, Proposed Rules: 49 CFR 50 CFR 66255, 66370 1 ...... 61295, 63257, 65472 18...... 61597 17 ...... 61599, 61956, 62722 622 ...... 65324, 65662, 66021 15...... 61655 19...... 61597 23...... 61978 635...... 62331, 65673 25...... 65472 523...... 65971 226...... 65324 648...... 61661, 66260 54...... 64882 535...... 65971 600...... 61985 660...... 65155, 65673

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Superintendent of Documents, Implementation Act (Oct. 21, U.S. Government Printing 2011; 125 Stat. 428) LIST OF PUBLIC LAWS Public Laws Electronic Office, Washington, DC 20402 H.R. 3078/P.L. 112–42 (phone, 202–512–1808). The Notification Service This is a continuing list of text will also be made United States-Colombia Trade (PENS) public bills from the current available on the Internet from Promotion Agreement session of Congress which GPO’s Federal Digital System Implementation Act (Oct. 21, have become Federal laws. It (FDsys) at http://www.gpo.gov/ 2011; 125 Stat. 462) PENS is a free electronic mail may be used in conjunction fdsys. Some laws may not yet H.R. 3079/P.L. 112–43 notification service of newly with ‘‘P L U S’’ (Public Laws be available. enacted public laws. To Update Service) on 202–741– United States-Panama Trade subscribe, go to http:// Promotion Agreement 6043. This list is also H.R. 2832/P.L. 112–40 listserv.gsa.gov/archives/ available online at http:// Implementation Act (Oct. 21, publaws-l.html www.archives.gov/federal- To extend the Generalized 2011; 125 Stat. 497) register/laws. System of Preferences, and H.R. 2944/P.L. 112–44 Note: This service is strictly for other purposes. (Oct. 21, for E-mail notification of new The text of laws is not 2011; 125 Stat. 401) United States Parole laws. The text of laws is not published in the Federal Commission Extension Act of available through this service. Register but may be ordered H.R. 3080/P.L. 112–41 2011 (Oct. 21, 2011; 125 Stat. PENS cannot respond to in ‘‘slip law’’ (individual United States-Korea Free 532) specific inquiries sent to this pamphlet) form from the Trade Agreement Last List October 17, 2011 address.

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